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Srivastava v. Srivastava

Court of Appeals of South Carolina

December 23, 2014

Jane Srivastava, Appellant,
v.
Ravindra Srivastava, Respondent. Appellate Case No. 2013-000344

Heard September 10, 2014

Appeal From Beaufort County Peter L. Fuge, Family Court Judge

Jane Srivastava, of Hilton Head Island, Pro Se.

H. Fred Kuhn Jr., of Moss Kuhn & Fleming, LLC, of Beaufort, for Respondent.

OPINION

GEATHERS, J.

In this divorce action, Jane Srivastava (Wife) appeals the family court's final order. Wife argues the family court erred by (1) failing to either impute income to Ravindra Srivastava (Husband) or deviate from the Child Support Guidelines in its child support award, (2) giving credit to Husband for excess child support payments, (3) awarding Husband attorney's fees, (4) not awarding Wife attorney's fees, (5) dividing the marital property in an inequitable manner, (6) finding Husband did not condone Wife's adultery, (7) denying Wife alimony, and (8) rendering a partial and biased decision. We affirm in part, reverse in part, and remand.

ISSUES ON APPEAL

I. Did the family court err in failing to either impute income to Husband or deviate from the Child Support Guidelines in its child support award?

II. Did the family court err in giving credit to Husband for excess child support payments?

III. Did the family court err in awarding Husband attorney's fees and not awarding Wife attorney's fees?

IV. Did the family court err in finding Husband did not condone Wife's adultery and, thus, err in denying Wife alimony?

V. Did the family court err in dividing the marital property in an inequitable manner? VI. Did the family court fail to render an impartial and nonbiased decision?

STANDARD OF REVIEW

"The family court is a court of equity." Lewis v. Lewis, 392 S.C. 381, 386, 709 S.E.2d 650, 652 (2011). In appeals from the family court, the appellate court reviews factual and legal issues de novo. Simmons v. Simmons, 392 S.C. 412, 414, 709 S.E.2d 666, 667 (2011) (citations omitted). "De novo review permits appellate court fact-finding, notwithstanding the presence of evidence supporting the [family] court's findings." Lewis, 392 S.C. at 390, 709 S.E.2d at 654-55. However, this broad scope of review does not require the appellate court to disregard the factual findings of the family court or ignore the fact that the family court was in the better position to assess the credibility of the witnesses. Pinckney v. Warren, 344 S.C. 382, 387, 544 S.E.2d 620, 623 (2001). Moreover, the appellant is not relieved of the burden of convincing this court that the family court erred in its findings. Id. at 387-88, 544 S.E.2d at 623. Accordingly, we will affirm the decision of the family court unless its decision is controlled by some error of law or the appellant satisfies the burden of showing that the preponderance of the evidence actually supports contrary factual findings by this court. See Lewis, 392 S.C. at 390-91, 709 S.E.2d at 654-55.

LAW/ANALYSIS

Wife argues the family court erred in its final order for several reasons. We address each issue in turn.

I. Did the family court err in failing to either impute income to Husband or deviate from the Child Support Guidelines in its child support award?

Wife argues the family court erred in its child support determination by failing to (a) impute income to Husband, or (b) deviate from the Child Support Guidelines to award a larger sum of child support. Husband asserts these arguments are not preserved. We agree with Husband.

"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." Doe v. Doe, 370 S.C. 206, 212, 634 S.E.2d 51, 54 (Ct. App. 2006). "Therefore, when an appellant neither raises an issue at trial nor [files] a Rule 59(e), SCRCP, motion, the issue ...


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