Durden v. Durden

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

George A.
Durden, Appellant/Respondent,

v.

Shirley N.
Durden, Respondent/Appellant.

Appeal From Dorchester County

 Robert N. Jenkins, Sr., Family Court
Judge

Unpublished Opinion No.  2009-UP-159

Submitted March 2, 2009 – Filed March 31,
2009

AFFIRMED

George A. Durden, pro se, of Greenwood, for Appellant/Respondent.

David L. Devane, and Ben F. Mack, both of Summerville, for
Respondent/Appellant. 

PER CURIAM:  George A. Durden (Husband) and Shirley N.
Durden (Wife) both appeal the family court’s final order, reducing Husband’s
alimony to $325 per month and ordering each party responsible for their own
attorney fees and cost.  We affirm pursuant to Rule 220(b), SCACR, and the
following authorities:

I.  Husband’s Appeal

1. 
As to whether this court should defer to the factual findings of the family
court when this court has the right to review the evidence de novo: Ray v.
Ray, 374 S.C. 79, 83, 647 S.E.2d 237, 239 (2007) (holding this court has
the authority to find facts in accordance with its view of the preponderance of
the evidence, but this broad scope of review does not require this court to
disregard the findings of the family court who saw and heard the parties, and
is in a better position to evaluate their credibility).

2.  As
to whether Wife’s financial declaration reflects a true statement of her
financial position, and whether the trial court erred in: (1) considering Husband’s
share of his disability retirement annuity as a source of income for awarding
alimony, (2) amending a draft of its final order, and (3) requiring Husband to
pay a 5% service fee on his alimony: McDavid v. McDavid, 333 S.C. 490, 497,
511 S.E.2d 365, 368-69 (1999) (holding any matter not raised and ruled upon by
the family court cannot be considered by this court on appeal).    

3.  As
to whether the family court erred in not eliminating alimony due to the Husband’s
substantial change of circumstances: Eubank v. Eubank, 347 S.C. 367,
372, 555 S.E.2d 413, 415 (Ct. App. 2001) (“The question of whether to increase
or decrease support due to changed circumstances is within the sound discretion
of the family court and such conclusions will not be disturbed on appeal absent
an abuse of discretion.”). 

4.  As to whether
the family court erred in denying his request for retroactive alimony reduction: Thornton v. Thornton, 328 S.C. 96, 115, 492 S.E.2d 86, 96 (1997) (“The
decision to order retroactive support rests within the sound discretion of the
family court and should not be reversed absent an abuse of discretion by the
family court.”). 

5.  As to whether
the family court erred in denying his request for attorney’s fees:  Simpson
v. Simpson, 377 S.C. 527, 538, 660 S.E.2d 278, 284 (Ct. App. 2008) (“The
award of attorney’s fees is within the sound discretion of the family court and
absent an abuse of discretion, will not be disturbed on appeal.”).

II.  Wife’s
Appeal

1. 
As to whether the family court erred in reducing Husband’s alimony payment to
Wife and in considering Wife’s entitlements from the sale of the marital home
in its decision to reduce Husband’s alimony: Eubank, 347 S.C. at 372,
555 S.E.2d at 415 (“The question of whether to increase or decrease support due
to changed circumstances is within the sound discretion of the family court and
such conclusions will not be disturbed on appeal absent an abuse of
discretion.”); Penny v. Green, 357 S.C. 583, 589, 594 S.E.2d 171, 174
(Ct. App. 2004) (holding the family court may consider several factors in its
determination to modify alimony, including the parties’ standard of living
during the marriage, each party’s earning capacity, and the supporting spouse’s
ability to continue to support the other spouse); Blakely v. Blakely, 249
S.C. 623, 625, 155 S.E.2d 857, 858 (1967) (stating an error must be material
and prejudicial to the substantial rights of the appellant in order for an
alimony order to be reversible). 

2. 
As to whether the family court erred in denying Wife’s request for an award of
attorney’s fees: Simpson, 377 S.C. at 538, 660 S.E.2d at 284 (“The award
of attorney’s fees is within the sound discretion of the family court and
absent an abuse of discretion, will not be disturbed on appeal.”).

AFFIRMED.[1]

HEARN, C.J., PIEPER and LOCKEMY, concur.

[1] We decide this case without oral argument pursuant to
Rule 215, SCACR.