Pierce v. Pierce

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

Jeffrey Pierce, Appellant/Respondent,

v.

Kristin Pierce, Respondent/Appellant.

Appellate Case No. 2015-000132

Appeal From Dorchester County
W. Thomas Sprott, Jr., Family Court Judge

Unpublished Opinion No. 2017-UP-286
Heard April 18, 2017 – Filed July 12, 2017

AFFIRMED IN PART, REVERSED IN PART,
REMANDED IN PART

Gregory L. Hyland, of Hart Hyland Shepherd, LLC, of
Summerville, for Appellant/Respondent.

Heather S. Shaw, of Shaw Law Firm, LLC, of Mount
Pleasant, for Respondent/Appellant.

PER CURIAM: In this cross-appeal, Jeffrey Pierce (Husband) and Kristin Pierce
(Wife) appeal from a final order from the family court which modified the terms of
rehabilitative alimony Husband owed to Wife pursuant to a court-approved
agreement. Husband argues the family court erred by (1) classifying the
rehabilitative alimony as non-modifiable, lump-sum alimony, (2) failing to reduce
or terminate the rehabilitative alimony, (3) extending the time period for payment
of the rehabilitative alimony, (4) imputing income to Husband, and (5) improperly
admitting and/or considering certain evidence. Wife asserts the family court erred
by (1) determining the rehabilitative alimony award was modifiable and (2)
denying her motion for attorney's fees. We affirm in part, reverse in part, and
remand in part pursuant to Rule 220(b), SCACR, and the following authorities:

1. As to Husband's issues one and three, to the extent the family court reclassified
the rehabilitative alimony as lump-sum alimony, we find the family court erred
because the parties' agreement expressly allowed for modification of the alimony
award under certain circumstances and it specifically referred to the award as
rehabilitative alimony, both of which are characteristics lump-sum alimony does
not have. Compare S.C. Code Ann. § 20-3-130(B)(3) (2014) (stating the family
court may grant "[r]ehabilitative alimony in a finite sum to be paid in one
installment or periodically, terminable . . . or modifiable based upon unforeseen
events frustrating the good faith efforts of the supported spouse to become self-
supporting or the ability of the supporting spouse to pay the rehabilitative
alimony"); with S.C. Code Ann. § 20-3-130(B)(2) (2014)(stating the family court
may grant "[l]ump-sum alimony in a finite total sum to be paid in one installment,
or periodically over a period of time, terminating only upon the death of the
supported spouse, but not terminable or modifiable based upon remarriage or
changed circumstances in the future").

2. As to Husband's issues two and four, the family court erred in failing to
terminate or reduce the overall award of alimony and in finding Husband was
voluntarily underemployed. First, we find Husband's decreased income was a
substantial change in circumstances for which Husband was not at fault. Husband
had a substantial reduction in income when he lost his job with General
Dynamics—well in excess of the ten percent the Agreement required—and as the
family court noted in its final order, it was uncontested that Husband was not at
fault for the loss of his job with General Dynamics. Furthermore, Husband's
income was not the only circumstance that changed—his lifestyle and living
expenses also changed, as he is no longer fed and housed overseas. See Kelley v.
Kelley, 324 S.C. 481, 486, 477 S.E.2d 727, 729-30 (Ct. App. 1996) ("The
following circumstances, without more, have been found insufficient to warrant
modification of alimony: unwarranted debts, inflation, increased or decreased
income of the payor spouse, a payee spouse's anticipated employment, and the
'straitened financial situation[s]' which are a normal consequence of divorce."
(quoting Kielar v. Kielar, 311 S.C. 466, 470, 429 S.E.2d 851, 853 (Ct. App.
1993)); cf. Kielar, 311 S.C. at 469-70, 429 S.E.2d at 853-54 (concluding Father's
involuntary resignation resulting in a salary decrease from $300,000 to $180,000
per year did not constitute a substantial change in circumstances given it did not
impact Father's standard of living or his ability to pay his support obligations).
Thus, we find that under the terms of the parties' agreement, Husband was entitled
to have the alimony award reviewed. Second, we find the family court erred in
failing to reduce the overall amount of alimony Husband owed because Husband
was not voluntarily underemployed. Husband's attempts at employment were
frustrated by the chain of events following the loss of his job in December 2012.
Additionally, Husband should not have been required to find or return to
employment overseas. See Kelley, 324 S.C. at 489, 477 S.E.2d at 731 ("[C]ourts
are reluctant to invade a party's freedom to pursue the employment path of their
own choosing or impose unreasonable demands upon parties." (emphasis added)).
Accordingly, we find Husband was not voluntarily underemployed, and we remand
to the family court for a hearing to determine the amount of the new alimony
award.

3. As to Husband's issue five, we find this issue abandoned because Husband did
not provide any supporting authority to his arguments. See DiMarco v. DiMarco,
399 S.C. 295, 301, 731 S.E.2d 617, 620 (Ct. App. 2012) (stating an issue is
deemed abandoned and will not be considered on appeal if the appellant raises the
argument in his or her brief but does not support it with any authority); id.
(declining to address the appellant's argument on the merits because he "failed to
cite any case law or authority to support his argument, and therefore . . . abandoned
[it] on appeal").

4. As to Wife's issue one, we find this issue not preserved because Wife did not
raise it to the family court at the final hearing or in a Rule 59(e), SCRCP, motion.
See Doe v. Doe, 370 S.C. 206, 212, 634 S.E.2d 51, 54 (Ct. App. 2006) ("To
preserve an issue for appellate review, the issue cannot be raised for the first time
on appeal, but must have been raised to and ruled upon by the [family] court."); id.
at 212, 634 S.E.2d at 55 ("[W]hen an appellant neither raises an issue at trial nor
through a Rule 59(e), SCRCP, motion, the issue is not preserved for appellate
review.").

5. As to Wife's issue two, we find the family court did not abuse its discretion in
denying Wife an award of attorney's fees and costs. See Srivastava v. Srivastava,
411 S.C. 481, 489, 769 S.E.2d 442, 447 (Ct. App. 2015) ("An award of attorney's
fees rests within the sound discretion of the [family court] and should not be
disturbed on appeal absent an abuse of discretion." (quoting Doe v. Doe, 319 S.C.
151, 157, 459 S.E.2d 892, 896 (Ct. App. 1995))).

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED IN PART.

LOCKEMY, C.J., and HUFF and THOMAS, JJ., concur.