Oxner v. Oxner

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

George Wyman
Oxner, Appellant,

   v.

Johnnie Mimms
Oxner, Respondent.

Appeal From Orangeburg County

Anne Gue Jones, Family Court Judge

Unpublished Opinion No.  2011-UP-097

Submitted March 1, 2011 – Filed March 10,
2011

AFFIRMED

Spencer Andrew Syrett, of Columbia, for
Appellant.

Michael C. Tanner, of Bamberg, for
Respondent.

PER CURIAM:  George
Wyman Oxner (Husband) appeals the family court's order finding a substantial
change in circumstances existed warranting a reduction in his alimony payments
to Johnnie Mimms Oxner (Wife).  He argues the family court erred in: (1)
declining to terminate his alimony payments to Wife, or failing to reduce his
alimony payments by the amount received by Wife from the pension because his
retirement was not foreseeable and Wife's income increased since the divorce;
(2) finding Husband's pension was property instead of income replacement; and
(3) awarding attorney's fees to Wife.  We affirm.[1]

1. We hold the family court did not abuse its discretion in
declining to terminate Husband's alimony payments or failing to reduce his
alimony payments by the amount received by Wife from the pension.  "The
question of whether to increase or decrease alimony based on a finding of
changed circumstances is a matter committed to the sound discretion of the
family court."  Gartside v. Gartside, 383 S.C. 35, 42, 677 S.E.2d
621, 625 (Ct. App. 2009).  Here, Husband continued to earn more income than
Wife even after he retired and also possessed close to $50,000 in various
investments.  In comparison, Wife testified she would not be able to meet her
current expenses without continued alimony payments from Husband, and her only
source of income was from her current job.  Additionally, the payments to Wife
from Husband's pension plan could not be considered in determining alimony
modification because it was within the contemplation of the parties at the time
of the divorce.  The original property settlement agreement specifically
contemplated Husband's retirement at a future time and consequently addressed
the division of Husband's pension plan between Husband and Wife.  See Serowski
v. Serowski, 381 S.C. 306, 313, 672 S.E.2d 589, 593 (Ct. App. 2009) ("Changes
in circumstances within the contemplation of the parties at the time the
divorce was entered generally do not provide a basis for modifying
alimony.").      

2. We hold
the issue of whether Husband's pension
was property instead of income replacement is not preserved for appellate
review because the family court did not specifically rule on this issue in its
final order and Husband did not file a Rule 59(e), SCRCP, motion.  See West
v. Newberry Elec. Co-op., 357 S.C. 537, 543, 593 S.E.2d 500, 503 (Ct. App. 2004)
(finding an issue was not preserved when it was not explicitly ruled on by the
trial court in its final order and the appellant did not raise the issue in a
Rule 59(e), SCRCP, motion to alter or amend the judgment).       

3. We hold the family
court did not abuse its discretion in awarding attorney's fees to Wife because
it properly considered all the relevant factors recited in Glasscock v.
Glasscock, 304 S.C. 158, 161, 403 S.E.2d 313, 315 (1991) and E.D.M. v.
T.A.M., 307 S.C. 471, 476-77, 415 S.E.2d 812, 816 (1992).  See Patel
v. Patel, 359 S.C. 515, 533, 599 S.E.2d 114, 123 (2004) ("An award of
attorney's fees rests within the sound discretion of the trial judge and should
not be disturbed on appeal unless there is an abuse of discretion.").      
        

AFFIRMED.

WILLIAMS,
GEATHERS, and LOCKEMY, JJ., concur.

[1] We decide this case without oral argument pursuant to
Rule 215, SCACR.