Key v. Key

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

Rosalind V. Key, Appellant,

v.

Harvey G. Key, Respondent.

Appellate Case No. 2017-001855

Appeal From Aiken County
Peter R. Nuessle, Family Court Judge

Unpublished Opinion No. 2020-UP-220
Submitted April 1, 2020 – Filed July 22, 2020

AFFIRMED

Leon Edward Green, of Leon E. Green, PC, of Aiken, for
Appellant.

Portland Jaye Downing Campanaro, of Evans, Georgia,
for Respondent.

PER CURIAM: Rosalind V. Key (Mother) appeals the family court's child support
order, arguing the family court erred in modifying a previous agreement she had
with Harvey G. Key (Father) as to their responsibility for paying for their children's
extracurricular activities. Mother also contends the family court erred in calculating
child support and not awarding her retroactive child support. We affirm.
I.

Mother and Father married in 1999. They have two children together. In 2009, the
family court granted Mother a divorce based on one year's continuous separation.
The divorce decree approved and incorporated the parties' agreement on child
support and extracurricular activities expenses, which provided the parties would
divide child support and extracurricular activities expenses based on the child
support guidelines. The decree did not state these provisions were unmodifiable.

In May 2010, a family court order set Father's child support obligation at $828 per
month. Several months later the parties went back to family court to "eliminate the
back and forth contact between the parties related to the expense for extracurricular
activities." The parties came to an agreement, which the family court approved and
incorporated in an order dated October 4, 2010. This order noted the expenses for
extracurricular activities would be $8,500 annually, and Father agreed to pay Mother
$1,300 quarterly for his portion of these expenses. Nothing in the order stated this
provision was unmodifiable.

In 2016, Mother brought this action requesting an increase in child support based on
a material change in circumstances, alleging Father's income had increased, the
children's living and educational expenses had increased, and Mother had been
unemployed since July 31, 2015. Mother requested any increase in child support be
retroactive to the date of filing. In his pleadings, Father alleged he had been paying
$941.85 per month in child support and approximately $1,164 per month in
extracurricular expenses. He requested dismissal of the complaint, that
extracurricular activity expenses be divided equally between the parties, and that
they be required to agree on which extracurricular activities are feasible given their
income.

At the hearing, Father testified that at Mother's request, he had purchased a satellite
television for her home, furniture, birthday cakes, birthday presents, and a satellite
radio for her vehicle. Mother claimed all of these were extracurricular activities
expenses. Father testified he had to obtain loans from his 401(k) account to pay for
these items. Mother testified that in 2016, she had to take out $35,296 from her
retirement account to pay for "the things that [their children] needed to do." Mother
testified she also accumulated $35,897.16 of debt on three different credit cards to
pay for their children's expenses.
Father testified his 2016 W-2 showed his gross annual income was $78,498, without
any additions, indicating a monthly income of $6,541.50. In the record provided, it
does not show Mother objected to this figure. Mother testified Father's 2015 W-2s
indicate he made $7,757 per month. Mother filed a financial declaration showing
she earned $975 per month; however, there was evidence Mother had previously
earned $1,500 per month. The family court imputed $1,500 as Mother's monthly
income.

The family court ordered (1) future extracurricular expenses will be equally divided
between the parties and shall have a yearly cap of $6,000; (2) Mother shall provide
Father a projected estimate of extracurricular activities annually by September 30;
(3) payment obligations for the extracurricular activities for each minor child shall
terminate upon their eighteenth birthday; (4) Father's child support is set at $1,048
per month until the oldest child emancipates,1 at which time his child support
obligation will be $719 per month. This appeal followed.

II.

Our standard of review is de novo, acknowledging that the family court is in a
superior position to gauge witness credibility. Stoney v. Stoney, 422 S.C. 593, 595,
813 S.E.2d 486, 486–87 (2018). An appellate court "will affirm the decision of the
family court in an equity case unless its decision is controlled by some error of law
or the appellant satisfies the burden of showing the preponderance of the evidence
actually supports contrary factual findings by th[e appellate] court." Bauckman v.
McLeod, 429 S.C. 229, 240–41, 838 S.E.2d 208, 213 (Ct. App. 2019) (alterations in
original) (quoting Holmes v. Holmes, 399 S.C. 499, 504, 732 S.E.2d 213, 216 (Ct.
App. 2012)).

III.

A. Extracurricular Activity Expenses

Mother argues the family court erred when it modified the parties' previous
settlement agreement as to extracurricular activity expenses. We disagree, as the
settlement agreement was modifiable.

1
The eldest child turned eighteen in November 2017; child support for the younger
child was set at $719 per month. The youngest child will emancipate either
May/June 2020 (if she graduated high school this year) or in October 2020 (when
she turns eighteen), per the family court's order.
"The family court has exclusive jurisdiction: . . . to modify or vacate any order issued
by the court." S.C. Code Ann. § 63-3-530(A)(25) (2009); see also Terry v. Lee, 308
S.C. 459, 462, 419 S.E.2d 213, 214 (1992) (holding the family court has exclusive
jurisdiction to determine the rights of parties under an agreement that is incorporated
into a divorce order). However, "parties may by agreement exclude the family court
of jurisdiction to modify any aspect of a separation agreement, except matters
affecting children." Robinson v. Tyson, 319 S.C. 360, 365, 461 S.E.2d 397, 400 (Ct.
App. 1995) (citing Moseley v. Mosier, 279 S.C. 348, 351, 306 S.E.2d 624, 626
(1983)). A provision in an agreement purporting to deny the family court
jurisdiction must be "explicit, clear[,] and plain." Id. (quoting Moseley, 279 S.C. at
353, 306 S.E.2d at 627).

The family court had jurisdiction to modify the parties' respective obligations for
their children's extracurricular activities expenses for two reasons. First, the 2009
Final Order did not provide the parties' agreement as to extracurricular expenses was
unmodifiable. Second, extracurricular activities expenses affect Mother and Father's
children and, therefore, are subject to modification by the family court. Id. (stating
"that the parties may by agreement exclude the family court of jurisdiction to modify
any aspect of a separation agreement, except matters affecting children"). Thus, the
family court did not err in modifying the extracurricular activities expenses.

B. Child Support

Mother contends the family court erred in calculating child support. We disagree.

"The issue of child support is subject to continuing review by the family court."
Fischbach v. Tuttle, 302 S.C. 555, 556, 397 S.E.2d 773, 773 (Ct. App. 1990). As
such, a "family court has authority to modify the amount of a child support award
upon a showing of a substantial or material change of circumstances." Miller v.
Miller, 299 S.C. 307, 310, 384 S.E.2d 715, 716 (1989). "[C]hild support is always
modifiable upon a proper showing of a change in either the child's needs or the
supporting parent's financial ability." Calvert v. Calvert, 287 S.C. 130, 137, 336
S.E.2d 884, 888 (Ct. App. 1985). The burden is on the party requesting a change in
child support to "prove the changes in circumstances warranting a modification."
Miller, 299 S.C. at 310, 384 S.E.2d at 716.

We affirm the family court's child support award of $1,048. The record is
incomplete in regards to the current incomes of both Mother and Father, and the
family court was in a better position to assess credibility. See Stoney, 422 S.C. at
594–95, 813 S.E.2d at 486–87 (noting during de novo review, appellate courts
should remember the family court is in a better position to assess witness credibility,
and the appellant has the burden of showing the appellate court that the
preponderance of evidence is against the family court); Harkins v. Greenville
County, 340 S.C. 606, 616, 533 S.E.2d 886, 891 (2000) (holding the appellant has
the burden of providing the court with an adequate record). However, the parties
stipulated Mother had previously earned $1,500 per month, and this was sufficient
to demonstrate she has the capacity to earn income at this level. The 2010 child
support order reflects Wife's monthly income was $3,326. The family court may
impute income to a party with respect to child support. Jenkins v. Jenkins, 401 S.C.
191, 203, 736 S.E.2d 292, 299 (Ct. App. 2012); S.C. Code Ann. Regs. 114-
4720(A)(5)(B) (West 2020) ("In order to impute income to a parent who is
unemployed or underemployed, the court should determine the employment
potential and probable earnings level of the parent based on that parent's recent work
history, occupational qualifications, and prevailing job opportunities and earning
levels in the community."). The greater weight of the evidence supports the family
court's calculation of Father's income and the child support award.

C. Retroactive Child Support

Mother argues the family court erred in failing to award her retroactive child support.
"The entitlement to retroactive child support depends upon the facts and
circumstances of each case." Engle v. Engle, 343 S.C. 444, 453, 539 S.E.2d 712,
716 (Ct. App. 2000) (affirming trial court's decision not to make support award
retroactive to date of filing). Based on the extraordinary amounts both Mother and
Father have paid for the children's extracurricular activities in this case, the family
court did not err in refusing to award retroactive child support to Mother. There was
testimony regarding the large amounts of money both Mother and Father had to take
out of their respective retirement accounts and the large amount of credit card debt
Mother had incurred. The family court found some of the extracurricular expenses
Wife had charged Father for were "exorbitant." We therefore decline to disturb the
family court's decision not to award retroactive child support.

AFFIRMED.2

WILLIAMS, KONDUROS, and HILL, JJ., concur.

2
We decide this case without oral argument pursuant to Rule 215, SCACR.