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Ricigliano v. Ricigliano

Court of Appeals of South Carolina

July 15, 2015

Daniel Ricigliano, Jr., Appellant,
v.
Linda Ricigliano, Respondent

Heard December 9, 2014.

Appeal From Dorchester County. William J. Wylie, Jr., Family Court Judge. Appellate Case No. 2012-212586.

David L. DeVane, of Summerville, and Theresa Marie Wozniak Jenkins, of Charleston, for Appellant.

Elizabeth Murray Hight, of Hight Law Firm, LLC, of Summerville, for Respondent.

HUFF, J. SHORT and KONDUROS, JJ., concur.

OPINION

HUFF, J.

In this domestic relations matter, Daniel Ricigliano, Jr. (Husband) appeals the order of the family court asserting the court erred in (1) awarding him rehabilitative alimony instead of permanent periodic alimony and making the award conditional, (2) equally dividing the parties' marital estate, (3) failing to hold Linda Ricigliano (Wife) in contempt for violating the court's order restraining her from disparaging him in their child's presence, and (4) failing to order Wife to contribute to Husband's extraordinary attorney's fees and costs. We affirm in part, reverse in part, and remand.

FACTUAL/PROCEDURAL HISTORY

The parties were married in New York on November 2, 1996, and have one child from the marriage (Daughter), who was ten years old at the time of the hearing in this matter. In 2005, the parties relocated to South Carolina to advance Wife's career with United States Customs and Border Protection (hereinafter Customs).

On January 17, 2009, the parties separated after Wife informed Husband in October 2008 that she did not love him and wanted to separate. Shortly after the separation, on January 23, 2009, Husband filed this action seeking, among other things, a divorce on the basis of Wife's adultery. Husband first had suspicions Wife was committing adultery in 2007 when he discovered sexually explicit images of another man and somewhat seductive pictures of Wife on Wife's cell phone. According to Husband, when he confronted Wife about the pictures, she denied having any sexual encounters with the man, indicating she and this man were just playing around, and Husband forgave Wife for engaging in such behavior. Husband further denied Wife told him about any other affairs or other men involved in her life. In December 2008, Husband again became suspicious of Wife and hired Steven Abrams, an attorney and expert computer forensics examiner, to make a clone of Wife's computer. Abrams' report indicated Wife was having an extramarital affair with an individual named Steven Goldfarb, which appeared to start in Fall 2008. E-mails recovered between Wife and Goldfarb also implied the two may have been contemplating having a baby together. Wife did in fact get pregnant while Wife and Husband were separated and had Goldfarb's baby in September 2010. Husband alleged in his complaint that he believed Wife commenced an adulterous relationship, which he had not condoned. Wife denied this allegation in her Answer. When Husband's Interrogatories raised a question concerning Wife's involvement in affairs, Wife pled " her 5th Amendment right" in August 2009. When also asked to provide the name, address and phone numbers of any individuals with whom she had sexual relations since their marriage, Wife again pled " her 5th Amendment right." In November 2009, Wife amended her Answers to Interrogatories to admit her sexual relationship with Goldfarb. In her June 2010 deposition, Wife finally admitted she had engaged in four extramarital affairs during their marriage.

Husband is a high school graduate who started a company called Prime Builders in New York around 1998 or 1999. After the parties' move to South Carolina, Husband became employed with the company Southern Specialties in August 2006. He also restarted Prime Builders in South Carolina in 2007, while he was continuing to work for Southern Specialties. However, the relocation from New York to South Carolina was a difficult transition for his business, and Husband testified he had to start over and build up his clientele. In Spring 2009, Husband was laid off from Southern Specialties when the company closed. Husband obtained his South Carolina Commercial Residential Builders License in 2009 and was self-employed with Prime Builders at the time of the hearing in 2011.

Husband testified that during the marriage, he cooked and cleaned and maintained the household. He stated he repaired anything that was broken in the home and remodeled the kitchen, bathrooms, living room, and dining room. Wife was responsible for handling the finances and paying the bills. Husband also testified the parties dined out two to three times a week, they made donations to their church as well as charitable donations, and they entertained in their home and threw parties at their pool. He estimated he worked an average of thirty-five to forty hours a week, while Wife worked over forty hours and traveled often for work. Because of his flexible schedule, he had more time to take care of Daughter and the house, and he cared for Daughter when Wife was travelling. He claimed he was the primary caretaker of Daughter prior to the parties' separation. Husband testified his standard of living had been affected " [q]uite a bit" since the parties' separation, and he struggled to pay bills. At the time of the hearing, he had " maxed everything out" on his credit cards and was living in a smaller apartment.

Other than his current income, there is little, and somewhat conflicting, evidence of Husband's financial situation in the record before us. Husband lost the income from Southern Specialties in 2009. At some point, Prime Builders was not doing well because of the economy, but Husband agreed it had improved. However, he characterized it as " turning around" at that point in time and stated he was " still not making decent money." Husband testified he was making about $2,100 a month at the time of the hearing, and his financial declaration showed he had a gross monthly income of $2,136. Additionally, there is a notation in a " Relocation Proposal" document, developed in the parties' counseling sessions by Dr. Gibbs, indicating that from a review of Husband's financial history, it appeared that from 2003 to 2010, Husband made approximately $120,000. However, during Husband's cross-examination, there is an indication that Husband may have testified in his 2010 deposition that his income total for the three previous years had been $354,000.[1] Husband testified his income fluctuated with the economy. This brief and vague reference to Husband's deposition testimony is the only indication Husband may have made a substantial income in the past, other than Wife's assertion that there were times in South Carolina that Husband made as much, if not more, money than she did.

Wife, who holds a degree in criminology with a minor in criminal justice, began working for Customs as an intern while in college and was employed by Customs upon graduation in June 1994. She was originally hired to work at the Port of Buffalo in New York and worked there for twelve years. Wife testified Husband's business did not support their household, but her job did. She did not have training and promotion opportunities in Buffalo, which factored into her decision to leave Buffalo. During a Christmas 2004 trip to see her brother in Mt. Pleasant, South Carolina, Wife interviewed for a position in the Port of Charleston and was hired shortly thereafter in 2005. Wife worked in that position for three years, until November 2008, when she was selected for employment in a three-year temporary position in Charleston as a course developer and instructor with Customs. This position was only to last through November 2011, with the possibility of extending the job two times in one-year increments for a total of five years of employment possible if extensions were granted. Both Wife and her supervisor testified Wife's request for extension was denied. Wife was then allowed to request three locations for continued employment with Customs, and she chose Charleston, Columbia, and Greenville, but none of those choices had available openings for her. Wife then applied for positions with the federal government in the Washington, D.C. area, where Goldfarb was headquartered, and she ultimately received a job offer there to begin shortly after the hearing in this matter. Wife noted her income afforded her the opportunity to provide Daughter with private school, health care, extracurricular activities, vacations, clothes, shoes, food, and everything Daughter needs. In order to continue her career with the federal government, she had to relocate. At the time of the hearing, Wife's Charleston employment provided an annual gross income of $87,278, and she was at level GS-13, Step 3 with the federal government. However, the new job in Washington, D.C. came with an offer of a GS-13, Step 6 to insure she would not lose any income.[2] If she passed her performance review, she had the potential of being promoted to the GS-14 level. A GS-14, Step 4 carried a salary of $93,166, and the pay would be adjusted 24.22 percent for the Washington, D.C. locality. Goldfarb testified he believed Wife's upgrade to GS-14 would be at Step 4 and her annual salary would probably be $117,000. Goldfarb was himself at level GS-14, Step 4. Additionally, both Wife and Goldfarb testified they planned to marry as soon as they possibly could. Goldfarb agreed that he and Wife would have a combined household income of " just shy of [a] quarter of [a] million dollars a year." The Washington, D.C. job would be a promotion for Wife.

Following eight days of hearing in July and August 2011, the family court issued an order on January 20, 2012, (1) granting Husband a divorce on the ground of Wife's adultery, (2) awarding primary custody of Daughter to Wife and allowing Wife to relocate with Daughter, (3) awarding Husband rehabilitative alimony of $500 a month " [i]f and only if" Husband chose to relocate within six months of the decree, with any decision to relocate after the six month period foreclosing any payment of alimony, (4) dividing the marital assets not already divided by agreement of the parties fifty-fifty, (5) requiring each party to pay their own attorney's fees and expenses and equally dividing the fees of the court-ordered psychologist and the Guardian ad Litem, with the exception of ordering Wife to reimburse Husband $3,100 toward the fees of his forensic expert, Abrams, and (6) declining to hold Wife in contempt, finding no clear and convincing evidence she purposely or willfully violated any of the court's orders.

ISSUES

1. Whether the family court erred in awarding conditional alimony and failing to award permanent periodic alimony in light of the duration of the parties' marriage and their educational background, employment history, ...


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