Menefee v. Menefee

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

Terry Menefee, Appellant,

v.

Delinda Menefee, Respondent.

Appellate Case No. 2015-001694

Appeal From Aiken County
Randall E. McGee, Family Court Judge

Unpublished Opinion No. 2017-UP-301
Heard June 5, 2017 – Filed July 26, 2017

AFFIRMED

Aaron G. Walsh, of Walsh Law, PA, of Aiken, for
Appellant.

Stephen K. Surasky, of Surasky Law Firm, LLC, of
Langley, for Respondent.

PER CURIAM: Terry Menefee (Husband) appeals various rulings of the family
court regarding his divorce from Delinda Menefee (Wife). We affirm pursuant to
Rule 220(b), SCACR, and the following authorities:
1. As to the family court's denial of Husband's motion to interview the minor
child: R & G Constr., Inc. v. Lowcountry Reg'l Transp. Auth., 343 S.C. 424, 437,
540 S.E.2d 113, 120 (Ct. App. 2000) ("An issue is deemed abandoned if the
argument in the brief is only conclusory."); Dodge v. Dodge, 332 S.C. 401, 418-19,
505 S.E.2d 344, 353 (Ct. App. 1998) (finding the family court did not abuse its
discretion in declining to interview an eleven-year-old child in a custody
proceeding).

2. As to the family court finding Husband failed to prove Wife committed
adultery: McLaurin v. McLaurin, 294 S.C. 132, 133, 363 S.E.2d 110, 111 (Ct. App.
1987) ("To obtain a divorce on the ground of adultery in South Carolina, the proof
of the alleged adultery 'must be clear and positive, and the infidelity must be
established by a clear preponderance of the evidence. The proof must be
sufficiently definite to identify the time and place of the offense, and the
circumstances under which it was committed.'" (quoting Brown v. Brown, 215 S.C.
502, 512-513, 56 S.E.2d 330, 335 (1949))); Brown v. Brown, 379 S.C. 271, 277,
665 S.E.2d 174, 178 (Ct. App. 2008) (per curiam) ("When the evidence is
conflicting and susceptible of different inferences, the family court has the duty of
determining not only the law of the case, but the facts as well, because it had the
benefit of observing the witnesses and determining how much credence to give
each witness's testimony."); see also Cox v. Cox, 296 S.C. 414, 415, 373 S.E.2d
694, 694 (Ct. App. 1988) (per curiam) (finding when the evidence conflicts as to
whether a party committed adultery, the appellate court should not disregard the
findings of the family court who saw and heard the witnesses and was in a better
position to evaluate the witnesses' testimony).

3. As to the family court finding Husband failed to prove physical cruelty as a
basis for granting the parties' divorce: Gorecki v. Gorecki, 387 S.C. 626, 633, 693
S.E.2d 419, 422 (Ct. App. 2010) ("The party alleging physical cruelty has the
burden of proving it by a preponderance of the evidence."); id. ("In considering
what acts constitute physical cruelty, the family court must consider the
circumstances of the particular case."); id. ("A single assault by one spouse upon
the other spouse can amount to physical cruelty."); id. ("The assault must,
however, be life-threatening or must be either indicative of an intention to do
serious bodily harm or of such a degree as to raise a reasonable apprehension of
great bodily harm in the future.").

4. As to the minor child's visitation with Wife and counseling: Curtis v. State, 345
S.C. 557, 567, 549 S.E.2d 591, 596 (2001) ("An appellate court will not pass on
moot and academic questions or make an adjudication where there remains no
actual controversy."); Mathis v. S.C. State Highway Dep't, 260 S.C. 344, 346, 195
S.E.2d 713, 715 (1973) ("A case becomes moot when judgment, if rendered, will
have no practical legal effect upon [the] existing controversy. This is true when
some event occurs making it impossible for [the] reviewing [c]ourt to grant
effectual relief."); Carpenter v. S.C. Dep't of Soc. Servs., 278 S.C. 167, 167-68,
293 S.E.2d 432, 432 (1982) (per curiam) (finding issues regarding the removal of a
minor who turned eighteen during the pendency of the appeal were rendered
moot).

5. As to the family court declining to award child support to Husband for the time
period between commencement of litigation and trial: Mosley v. Mosley, 390 S.C.
524, 531, 702 S.E.2d 253, 257 (Ct. App. 2010) ("The decision to award retroactive
child support rests in the sound discretion of the family court."); R & G Constr.,
Inc., 343 S.C. at 437, 540 S.E.2d at 120 ("An issue is deemed abandoned if the
argument in the brief is only conclusory.").

6. As to the family court declining to award reimbursement to Husband for
automobile insurance paid on Wife's behalf: Helms Realty, Inc. v. Gibson-Wall
Co., 363 S.C. 334, 339, 611 S.E.2d 485, 487-88 (2005) (declining to address the
merits of an appellant's claim based on the appellant's failure to meet the burden of
providing a sufficient record for review).

7. As to the family court's equitable distribution: King v. King, 384 S.C. 134, 143,
681 S.E.2d 609, 614 (Ct. App. 2009) ("The division of marital property is within
the family court's discretion and will not be disturbed on appeal absent an abuse of
that discretion. The appellate court looks to the overall fairness of the
apportionment. If the end result is equitable, the fact that the appellate court would
have arrived at a different apportionment is irrelevant." (citations omitted));
Wooten v. Wooten, 364 S.C. 532, 546, 615 S.E.2d 98, 105 (2005) ("Marital debt,
like marital property, must be specifically identified and apportioned in equitable
distribution."); Pruitt v. Pruitt, 389 S.C. 250, 267, 697 S.E.2d 702, 711 (Ct. App.
2010) (deferring to the family court's finding that alleged debts listed by the
husband as marital debts did not qualify as marital debts because they were not
adequately explained by his testimony at trial).

8. As to the family court finding Husband in contempt of a court order: Durlach v.
Durlach, 359 S.C. 64, 70, 596 S.E.2d 908, 912 (2004) (indicating an appellate
"[c]ourt should reverse a decision regarding contempt 'only if it is without
evidentiary support or the [family court] has abused [its] discretion'" (quoting
Stone v. Reddix-Smalls, 295 S.C. 514, 516, 369 S.E.2d 840, 840 (1988))); see also
Henderson v. Henderson, 298 S.C. 190, 197, 379 S.E.2d 125, 129 (1989) ("A
finding of contempt rests within the sound discretion of the [family court].").

9. As to the family court's decision to deny Husband's request for attorney's fees
and to split the guardian ad litem fees equally: Nash v. Byrd, 298 S.C. 530, 537,
381 S.E.2d 913, 917 (Ct. App. 1989) (per curiam) (stating an award of attorney's
fees or guardian ad litem fees "lies within the sound discretion of the [family court]
and will not be disturbed on appeal absent an abuse of discretion"); Garris v.
McDuffie, 288 S.C. 637, 644, 344 S.E.2d 186, 191 (Ct. App. 1986) ("The same
equitable considerations [that] apply to attorney's fees also apply to costs."); see
E.D.M. v. T.A.M., 307 S.C. 471, 476-77, 415 S.E.2d 812, 816 (1992) (designating
the following factors as determinative in whether to award attorney's fees and
costs: "(1) the party's ability to pay his/her own attorney's fee; (2) beneficial results
obtained by the attorney; (3) the parties' respective financial conditions; [and] (4)
effect of the attorney's fee on each party's standard of living").

AFFIRMED.

SHORT, WILLIAMS, and KONDUROS, JJ., concur.