Rothman v. Rothman

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

Theodore Eric Rothman, Respondent,

v.

Kimberly Kyker Rothman, Appellant.

Appellate Case No. 2018-000904

Appeal From Greenville County
Tarita A. Dunbar, Family Court Judge

Unpublished Opinion No. 2021-UP-320
Submitted February 1, 2021 – Filed September 8, 2021

AFFIRMED

Druanne Dykes White, of White, Davis & White Law
Firm, PA, of Anderson, and Gwendolynn Wamble
Barrett, of Barret Mackenzie, LLC, of Greenville, both
for Appellant.

Joseph M. Ramseur, Jr., of Mitchell Ramseur, LLC, and
David Alan Wilson, of Wilson & Englebardt, LLC, both
of Greenville, for Respondent.
PER CURIAM: Kimberly Kyker Rothman (Mother) appeals the family court's
order, arguing the family court erred in failing to order Theodore Eric Rothman
(Father) to pay her direct child support. We affirm.1

We disagree with Mother's argument that the family court erred in its award of
child support. "On appeal from the family court, the appellate court reviews
factual and legal issues de novo." Tomlinson v. Melton, 428 S.C. 607, 611, 837
S.E.2d 230, 232 (Ct. App. 2019). "Thus, the appellate court has the authority to
find the facts in accordance with its own view of the preponderance of the
evidence." Id. "However, this broad scope of review does not require the
appellate court to disregard the fact that the family court, which saw and heard the
witnesses, was in a better position to evaluate their credibility and assign
comparative weight to their testimony." Id. "Therefore, the appellant bears the
burden of convincing the appellate court that the family court committed error or
that the preponderance of the evidence is against the court's findings." Id. at 611-
12, 837 S.E.2d at 232.

"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). "The burden is upon the party
seeking the change to prove the changes in circumstances warranting a
modification." Id. "This burden is always a high one, hence the requirement that
the change in circumstances be 'substantial.'" Miles v. Miles, 393 S.C. 111, 120,
711 S.E.2d 880, 885 (2011). "A substantial or material change in circumstances
might result from changes in the needs of the children or the financial abilities of
the supporting parent to pay among other reasons." Miller, 299 S.C. at 310, 384
S.E.2d at 717. "Generally, however, changes in circumstances within the
contemplation of the parties at the time the initial decree was entered do not
provide a basis for modifying a child support award." Id. "Once a substantial and
material change in circumstances is found, the court must review the facts and
circumstances in order to determine an appropriate amount of child support." Id. at
312, 384 S.E.2d at 717. "In modifying child support, the court should be guided by
the same principles which guide the court in making its initial award." Id. "The
factors to be considered by the court in establishing the amount of child support
obligations are both parents' income, ability to pay, education, expenses, and assets
and the facts and circumstances surrounding each case." Id. "The court is to
award support in an amount sufficient to provide for the needs of the children and
to maintain the children at the standard of living they would have been provided

1
We decide this case without oral argument pursuant to Rule 215, SCACR.
but for the divorce." Id. "The award should be an amount the parent can pay and
still meet his or her own needs." Id.

"Family court judges are generally required to follow the South Carolina Child
Support Guidelines (Guidelines) when awarding child support." Burch v. Burch,
395 S.C. 318, 331, 717 S.E.2d 757, 764 (2011); see also S.C. Code Ann. §
63-17-470(A) (2010) ("In any proceeding for the award of child support, there is a
rebuttable presumption that the amount of the award which would result from the
application of the guidelines required under [South Carolina Code] Section
43-5-580(b) [(2015)] is the correct amount of child support to be awarded.").
"These guidelines provide for calculated amounts of child support for a combined
parental gross income of up to $30,000 per month, or $360,000 per year. Where
the combined gross income is higher, courts should determine child support awards
on a case-by-case basis." S.C. Code Ann. Regs. 114-4710(A)(3) (Supp. 2020).

Mother argues the family court should have considered the parties' increased
lifestyles, incomes, expenses and standard of living, the children's increased
lifestyles and standard of living, the disparity in the parties' incomes, and that
Mother will now be primarily responsible for the needs of the children, as she now
has full custody. In addition, Mother argues the family court's order does not take
into consideration the dynamic of parental alienation. She asserts that while the
family court ordered Father to pay for all extracurricular activities in which Mother
may enroll the children, Father may pressure the children to decline to participate
if he does not approve. She also asserts parental alienation requires her to work
less, and thus earn less than Father. Additionally, Mother argues that while it was
appropriate for the family court to consider that the children had always attended
private school, their tuition should not have been the only consideration in making
the child support award, and the family court erred in ignoring the children's other
basic needs.

We find the majority of Mother's arguments are not preserved for appellate review
because they were not raised to and ruled upon by the family court. See Wilder
Corp. v. Wilke, 330 S.C. 71, 76, 497 S.E.2d 731, 733 (1998) (stating for an issue to
be preserved for appeal it must have been raised to and ruled upon by the lower
court); Nelson v. Nelson, 428 S.C. 152, 182, 833 S.E.2d 432, 447 (Ct. App. 2019)
(finding some of the husband's arguments were "not preserved because they were
not ruled upon by the family court in its final order or raised in a proper posttrial
motion"); Elam v. S.C. Dep't of Transp., 361 S.C. 9, 24, 602 S.E.2d 772, 780
(2004) ("A party must file [a Rule 59(e)] motion when an issue or argument has
been raised, but not ruled on, in order to preserve it for appellate review.").
In her motion to alter or amend, Mother did not request clarification of the family
court's award of support. Instead, she asserted that the family court's order should
be amended to include a provision requiring Father to purchase a vehicle for each
child at an appropriate age and pay all insurance on the vehicles. She further
stated, "In the alternative, Plaintiff/Father should be ordered to pay
Defendant/Mother child support in the amount of $5,000.00 per month through the
Greenville County Clerk of Court's Office."

Although Father objected to the family court requiring him to purchase vehicles for
the children, the basis for his objection was that such a requirement would create
an entitlement in the children to the vehicles. Father had already provided the
older son with a vehicle. He also pays for the insurance and maintenance on it.
There is no indication Father would not similarly provide the other two children
with vehicles at the appropriate age. The family court may have reasoned Father's
voluntary provision of a vehicle for the older son and presumably the other
children at an appropriate time satisfied Mother's request. See McKissick v. J.F.
Cleckley & Co., 325 S.C. 327, 350, 479 S.E.2d 67, 79 (Ct. App. 1996) (explaining
a party cannot complain on appeal when he or she receives the relief requested at
trial).

Mother asked for $5,000 a month in child support only in the alternative. She did
not set forth how she derived the $5,000 figure. In her pleadings, she requested
child support according to the Guidelines. When asked on cross-examination why
she needed child support, Mother responded, "Children are expensive." Mother
testified that if the children were with her eighty percent of the time pursuant to
Judge Brown's standard visitation, her expenses would increase "a lot." She
explained, "Well it would be twice the amount of food, more clothing, more
incidentals; if they were with me then I would have to provide more gas money for
[the older son] if and when he needs it. I presume I would have to start looking at
getting a car for [the daughter] . . . ."

In lieu of support, the family court ordered Father to pay many of the children's
expenses, including health insurance and all of their private school expenses. See
Burch, 395 S.C. at 329, 717 S.E.2d at 763 (stating a family court may order the
parties to contribute to private school expenses when appropriate). Here, Father
pays all of the children's school expenses, including Mother's share, in lieu of
giving child support directly to Mother.

In addition, the family court increased Father's contribution from seventy-five
percent to one hundred percent for tutors and summer camps and related fees and
expenses. The court also required Father to pay for all extracurricular activities in
which Mother chose to enroll the children and did not give Father the right to limit
these activities. The record shows the children have been involved in numerous
extracurricular activities, including soccer, basketball, flag football, volleyball, and
piano. However, the record does not set forth their current activities or the costs of
those activities. We find Mother's general testimony regarding expenses does not
evidence an increase in the children's needs that would render the support the
family court ordered unreasonable. See Bauckman v. McLeod, 429 S.C. 229, 249,
838 S.E.2d 208, 218 (Ct. App. 2019) ("[G]eneral testimony regarding increased
expenses, without specific evidentiary support, is an insufficient showing of
changed circumstances." (quoting Upchurch v. Upchurch, 367 S.C. 16, 26, 624
S.E.2d 643, 648 (2006))).

Taking our own view of the preponderance of the evidence, we hold Mother failed
to meet her burden of demonstrating the family court erred in its child support
ruling.

AFFIRMED.

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