Foster v. Foster

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

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

Larry Foster,       
Respondent,

v.

Bettie Foster,       
Appellant.

Appeal From Florence County

Wylie H. Caldwell, Jr., Family Court
Judge

Unpublished Opinion No, 2004-UP-248

Submitted March 8, 2004 – Filed March
15, 2004

AFFIRMED

Jerry D. Vinson, Jr. and Michele R. Krize, both of Florence,
for Appellant.

James M. Saleeby, Sr., of Florence, and Marian Dawn Nettles,
of Lake City, for Respondent.

PER CURIAM: Larry Foster (“Husband”) brought
this action against his former wife Bettie Foster (“Wife”) seeking a termination
or reduction in alimony based on his substantial change of circumstances.  The
family court reduced Husband’s alimony obligation, but only based on Wife’s
change of income.  Wife appeals, alleging the trial court erred in modifying
the alimony and in failing to award her the full amount of her attorney’s fees. 
We affirm.

FACTS

Husband and Wife married on April 17,
1985 and divorced on April 30, 1998.  The divorce decree divided the marital
estate equally between the parties and granted Wife $1,500 per month in permanent,
periodic alimony.  Wife appealed.  The parties settled the case during the pendency
of the appeal with an agreement approved by the family court.  This agreement
provided Husband would pay Wife $7,500 per month, consisting of $6,000 per month
in equitable distribution payments and $1,500 per month in permanent, periodic
alimony payments until the last equitable distribution payment was made in January
of 2002.  After the Husband’s equitable distribution payment obligations ceased,
Husband’s alimony obligations would increase to $4,000 per month.  The agreement
further provided that at that time, either party could move for a modification
of alimony based on a substantial change of circumstances. 

In February 2002, Husband filed this action
seeking a reduction or elimination of alimony based on a substantial change
of circumstances.  He alleged his businesses’ incomes had decreased substantially
causing similar decreases in his personal income.  In addition to the Husband’s
alleged decrease in income, the family court also considered the wife’s new
employment with a bank in which she earned $1,387.00 per month. 

The family court reduced Husband’s alimony
obligation by $1,000 per month, basing the modification solely on Wife’s new
employment, and not Husband’s alleged loss of business income.  The court awarded
the Wife $2,500.00 of the attorney’s fees she requested.  This appeal followed. 

LAW/ANALYSIS

I.  Reduction in alimony

Wife argues the family court erred in finding
there had been a substantial change in her circumstances that warrant a reduction
in alimony.  We disagree. 

The family court has the authority to alter alimony
payments upon a proper showing of a change of condition.  S.C. Code Ann. § 20-3-170
(1985).  Questions concerning alimony are in the sound discretion of the family
court.  Bryson v. Bryson, 347 S.C. 221, 224, 553 S.E.2d 493, 495 (Ct.
App. 2001).  The family court’s modification of an alimony award will not be
reversed on appeal absent a showing of abuse of discretion.  Thornton v.
Thornton, 328 S.C. 96, 111, 492 S.E.2d 86, 94 (1997).  To justify modification
of an alimony award, the changes in circumstances must be substantial or material. 
Sharps v. Sharps, 342 S.C. 71, 76, 535 S.E.2d 913, 916 (2000).  “Generally,
changes in circumstances within the contemplation of the parties at the time
the decree was entered do not provide a basis for modifying either an alimony
allowance or a child support award.”  Id. (quoting Calvert v. Calvert,
287 S.C. 130, 139, 336 S.E.2d 884, 889 (Ct. App. 1985).  Therefore, courts have
refused to modify alimony where the parties anticipated the substantial change
in circumstances at the time of the divorce decree.  Sharps, 342 S.C.
at 76, 535 S.E.2d at 916.  The original divorce decree generally addresses the
expected change of circumstances.  Id. at 76-77, 535 S.E.2d at
916. 

The family court reduced Husband’s alimony obligation
from $4,000 per month to $3,000 per month.  The court stated, “The only reason
he is receiving the decrease herein awarded is the Wife managed to land a job
immediately before the hearing, candidly disclosed that fact, and allowed that
to be considered by the court.”  Wife contends that the fact she now earns a
$1,387 per month income is not a sufficient change of circumstances to warrant
modification of the alimony award.  She argues the parties clearly anticipated
she would return to the work force, and therefore, it was error for the family
court to modify the alimony award. 

We find Wife’s new employment was a change of
circumstances that was unanticipated by the parties at the time of the decree. 
The original decree stated Wife had “job skills as evidenced by her past work
history, however, she has been out of the job market for a number of years.” 
We do not find this as an expression of the court’s anticipation of Wife’s future
employment.  Instead, we find the court was contemplating the difficulty Wife
might face trying to find employment because of her long absence from the job
market.  We also find no indication the parties anticipated Wife’s re-entry
into the workforce at the time they entered into the settlement agreement. 
In fact, except for some part-time employment, the Wife remained unemployed
from the time of the decree until the day before the hearing.

Wife also argues the reduction in alimony would not allow her to
maintain the standard of living she enjoyed during the marriage.  We find no
error in the family court reducing the alimony award to $3,000 a month when
Wife is now also earning $1,387 a month and listed the property she owns as
valued at $340,623.  In addition, Wife asserts the reduction in alimony penalizes
her for gaining employment.  We find this assertion meritless.  An alimony award
should not serve as a disincentive for a spouse to make reasonable efforts to
improve her employment potential or to dissuade the spouse from providing, to
the extent possible, for her own support.  Brandi v. Brandi, 302 S.C.
353, 358, 396 S.E.2d 124, 127 (Ct. App. 1990).         

Being mindful of our standard of review, which gives the family court judge
discretion in modifying alimony, we find Wife’s new employment and income is
a sufficient change of circumstances to warrant the modification of the alimony
award from $4,000 to $3,000 per month. 

II.      Attorney’s Fees 

Wife argues the family court erred by only awarding her a portion of her attorney’s
fees and costs.  We disagree. 

An award of attorney’s fees and costs is in the
discretion of the family court and will not be overturned absent an abuse of
discretion.  Donahue v. Donahue, 299 S.C. 353, 365, 384 S.E.2d 741, 748
(1989).  To prevail on appeal, a party must show the court’s conclusions were
without factual support, resulted in prejudice, and amounted to an error of
law.  Alliegro v. Alliegro, 287 S.C. 154, 157, 337 S.E.2d 252, 254 (Ct.
App. 1985). 

In determining the proper amount to award, we
consider: the nature, extent, and difficulty of the services rendered; the time
necessarily devoted to the case; the professional standing of counsel; the contingency
of compensation; the beneficial results obtained; and the customary legal fees
for similar services.  Glasscock v. Glasscock, 304 S.C. 158, 161, 403
S.E.2d 313, 315 (1991). 

We recognize Wife’s attorney spent a considerable
amount of time deciphering Husband’s confusing business records in defending
the Husband’s claim for a reduction of alimony.  However, Wife is capable of
paying her own fees.  Her gross monthly income, including the reduced alimony,
is $4,387 and she owns $340,623 in total property according to her financial
declaration.  Furthermore, as to the beneficial results obtained, although the
family court rejected Husband’s contention that alimony should be reduced due
to his decrease in income, it nevertheless granted his request for a reduction
based on Wife’s new employment.  Therefore, Husband was successful in his claim
for a reduction in alimony.  Based on the above, we find the family court did
not abuse its discretion in awarding Wife $2,500.00 in attorney’s fees and costs.

CONCLUSION 

For the foregoing reasons, the decision of the
family court is

AFFIRMED.

HUFF, STILWELL, and CURETON, JJ., concur.