Johnson v. Johnson

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Thomas Johnson, Respondent,

v.

Alfreda Johnson, Appellant.

Appellate Case No. 2018-000551

Appeal From Richland County
Karen F. Ballenger, Family Court Judge

Unpublished Opinion No. 2021-UP-019
Submitted January 1, 2021 – Filed January 27, 2021

AFFIRMED

John Stephen Keffer, of Young, Keffer & Donnald, PA,
of Sumter, for Appellant.

Catherine Townes Johnson, of Law Office of Catherine
Johnson, of Columbia, for Respondent.

PER CURIAM: Alfreda Johnson (Wife) appeals a decree of divorce, arguing the
family court erred by denying her request for alimony and determining Thomas
Johnson's (Husband's) disability severance pay was not marital property. We
affirm pursuant to Rule 220(b), SCACR, and the following authorities:
1. We find the family court did not err by denying Wife an award of alimony.
Wife failed to present evidence on many of the statutory factors this court
considers when determining whether an award of alimony is warranted, including
the parties' standard of living during the marriage, her educational background, and
her employment history and earning potential. Moreover, at the time of the
January 2018 hearing, Wife had been living without support from Husband for
approximately five years. Because Wife failed to show a preponderance of the
evidence was against the family court's findings, we affirm. See Stoney v. Stoney,
422 S.C. 593, 596, 813 S.E.2d 486, 487 (2018) (holding on appeal from the family
court, an appellate court reviews factual and legal issues de novo); Lewis v. Lewis,
392 S.C. 381, 392, 709 S.E.2d 650, 655 (2011) (stating appeals from the family
court are reviewed de novo and the appellant bears the burden of proving the
family court erred or its findings are not supported by the preponderance of the
evidence); S.C. Code Ann. § 20-3-130(C) (2014) (providing the factors a court
should consider in making an award of alimony include: "(1) the duration of the
marriage together with the ages of the parties at the time of the marriage and at the
time of the divorce . . . ; (2) the physical and emotional condition of each spouse;
(3) the educational background of each spouse . . . ; (4) the employment history
and earning potential of each spouse; (5) the standard of living established during
the marriage; (6) the current and reasonably anticipated earnings of both spouses;
(7) the current and reasonably anticipated expenses and needs of both spouses; (8)
the marital and nonmarital properties of the parties, including those apportioned to
him or her in the divorce . . . ; (9) custody of the children . . . ; (10) marital
misconduct or fault of either or both parties . . . ; (11) the tax consequences to each
party as a result of the particular form of support awarded; (12) the existence and
extent of any support obligation from a prior marriage or for any other reason of
either party; and (13) such other factors the court considers relevant."); Pirri v.
Pirri, 369 S.C. 258, 267, 631 S.E.2d 279, 284 (Ct. App. 2006) (providing that
when a court is considering an alimony award, "[n]o one factor is dispositive"
(quoting Allen v. Allen, 347 S.C. 177, 184, 554 S.E.2d 421, 425 (Ct. App. 2001)));
Craig v. Craig, 365 S.C. 285, 292, 617 S.E.2d 359, 362 (2005) ("Generally,
alimony should place the supported spouse, as nearly as practical, in the same
position as enjoyed during the marriage.").

2. We find the family court did not err by failing to divide Husband's disability
severance pay, which he received in 2014, because Wife failed to establish the
money was in existence at the time Husband filed the action for divorce in 2017.
See Stoney, 422 S.C. at 596, 813 S.E.2d at 487 (holding on appeal from the family
court, an appellate court reviews factual and legal issues de novo); S.C. Code Ann.
§ 20-3-630(A) (2014) (defining the term "marital property" as "all real and
personal property which has been acquired by the parties during the marriage and
which is owned as of the date of filing or commencement of marital litigation . . .
regardless of how legal title is held . . . ." (emphasis added)); Panhorst v. Panhorst,
301 S.C. 100, 104-05, 390 S.E.2d 376, 379 (Ct. App. 1990) (finding property that
no longer belonged to either party at the time the action was filed was not subject
to equitable distribution).1

AFFIRMED.2

THOMAS, HILL, and HEWITT, JJ., concur.

1
We further note the Supreme Court has held military disability pay is not marital
property. See Mansell v. Mansell, 490 U.S. 581, 595 (1989) (holding the Former
Spouses' Protection Act, 10 U.S.C.A. § 1408(a)(4)(B) (Supp. 1995), does not grant
state courts the power to treat military disability benefits as divisible upon
divorce).
2
We decide this case without oral argument pursuant to Rule 215, SCACR.