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Sweeney v. Sweeney

Court of Appeals of South Carolina

April 5, 2017

Mark M. Sweeney, Appellant/Respondent,
Irene M. Sweeney, Respondent/Appellant. Appellate Case No. 2014-001850

          Heard February 13, 2017

         Appeal From Greenville County David E. Phillips, Family Court Judge.

          Bruce W. Bannister and Luke A. Burke, both of Bannister, Wyatt & Stalvey, LLC, of Greenville, for Appellant/Respondent.

          David M. Yokel, of Greenville, for Respondent/Appellant.

          WILLIAMS, J.

         Mark M. Sweeney (Husband) appeals the family court's final divorce decree, arguing the court erred in (1) awarding alimony to Irene M. Sweeney (Wife), (2) apportioning nonmarital property, (3) miscalculating the amount of rental proceeds he deposited in the parties' joint account during the pendency of litigation, (4) holding him in contempt, and (5) awarding Wife attorney's fees. Wife cross-appeals, asserting the family court erred in (1) failing to impute her income at the minimum wage, (2) awarding an insufficient amount of alimony, (3) overvaluing marital property, (4) crediting Husband for rental proceeds, and (5) failing to consider all of the necessary factors in determining her attorney's fees. We affirm in part and reverse in part.


         Husband and Wife were married on February 18, 1984. At that time, the couple lived in New Orleans, Louisiana, where Wife worked as a teacher and Husband was a graduate student at Tulane University. In early 1986, they relocated to Greenville, South Carolina, where Wife continued teaching and Husband began working at Fluor Daniel, a large construction firm. Husband subsequently took a job at the South Carolina Department of Commerce in 1990, but he returned to Fluor Daniel in 1996.

         In 2000, Husband left Fluor Daniel to start a site selection consulting company named McCallum Sweeney Consulting (MSC), which eventually became successful. Husband and Wife soon amassed a large amount of investment assets, retirement accounts, and whole life insurance policies. By November 2013, Husband reported a gross monthly income of approximately $34, 100.

         During the marriage, the parties raised three children, all of whom are now emancipated. When their first two children were born in 1984 and 1990, Wife took approximately eight months off from teaching to stay at home. Wife, however, did not return to work after the youngest child was born in 1995. In addition to the marital home in Greenville, the parties purchased two homes in Columbia and Charleston, which were used by their eldest son and daughter when they attended college.

         In mid-February 2012, Husband moved out of the marital home and into an apartment. On February 29, 2012, Husband filed an action in the family court, requesting a no-fault divorce, equitable distribution, and joint custody of the couple's then sixteen-year-old child. Wife answered and counterclaimed, seeking a divorce on the ground of adultery, possession of the marital home, joint custody of the minor child, equitable distribution, alimony, and attorney's fees.

         On August 20, 2012, the family court issued a temporary order. In its order, the court incorporated the parties' stipulation not to dispose of any marital property during the pendency of the action. Regarding contested issues, the court required Husband to pay $4, 000 per month to Wife in temporary support. Additionally, the court ordered that "[e]ach party . . . be advanced $75, 000.00 from the parties' joint savings account (the Morgan Stanley account) to cover any expenses incurred up until the merits hearing, inclusive of attorney['s] fees, expert fees[, ] or investigative fees." Husband was also to provide the court with an accounting of all rental income or refunds related to the Columbia and Charleston investment homes at the merits hearing.

         On August 2, 2013, Wife petitioned the family court for a rule to show cause why Husband should not be held in contempt for removing $41, 561.90 from the Morgan Stanley account from October 2012 to July 2013 in willful violation of the temporary order.[1] Husband later admitted he withdrew the funds to pay for education and various expenses of the parties' children.

         The family court held a merits hearing concerning the divorce action over five days in 2013 and 2014. At trial, Husband stated he began having an affair with a woman from Illinois in April 2012, but only after he had separated from Wife. According to Husband, his relationship with Wife actually ended in 2007, but they continued living together in the marital home until their children were emancipated. In an earlier deposition, however, Husband admitted to visiting his paramour for about three years prior to his separation from Wife.

         On July 22, 2014, the family court issued a final divorce decree, granting Wife a divorce on the ground of Husband's adultery. In the final decree, the court divided the marital estate, apportioning 55% to Husband and 45% to Wife. The court awarded the marital home to Wife, while allocating the Columbia and Charleston properties to Husband. Additionally, the court apportioned a health savings account (HSA) established for the parties' eldest son to Husband.

         The court noted Wife reported $6, 979 in post-separation monthly expenses on her financial declaration.[2] Excluding postage, parking, vacations, and individual retirement account (IRA) contributions, the court found Wife had approximately $5, 500 in post-separation monthly expenses. After imputing an income of $1, 500 per month to Wife, the court ordered Husband to pay $5, 000 per month to Wife in permanent, periodic alimony.

         With regard to Wife's contempt petition, the family court found Husband in willful contempt of its temporary order for making unauthorized withdrawals from the Morgan Stanley account. The court required Husband to reimburse $30, 591.29 to Wife-45% of the $72, 480.65 that Husband withdrew from the account since the temporary order, with a $4, 500 credit for rental proceeds from the Charleston home he deposited into the account. The court also required Husband to pay $3, 310 in compensatory attorney's fees to Wife relating to the contempt action.

         Finally, the court awarded $15, 000 in attorney's fees and costs related to the divorce action to Wife. Husband and Wife each filed a motion to alter or amend judgment, and the family court denied the motions on August 13, 2014. This cross-appeal followed.


         In appeals from the family court, the appellate court reviews factual and legal findings de novo. Simmons v. Simmons, 392 S.C. 412, 414, 709 S.E.2d 666, 667 (2011). Although we have the authority to make our own findings of fact, "we recognize the superior position of the family court judge in making credibility determinations." Lewis v. Lewis, 392 S.C. 381, 392, 709 S.E.2d 650, 655 (2011). Therefore, the appellant bears the burden of convincing this court that the family court committed error or the preponderance of evidence is against the court's findings. Id.


         I. Husband's Appeal

         On appeal, Husband argues the family court erred in (1) awarding alimony to Wife, (2) apportioning nonmarital property, (3) miscalculating the amount of rental proceeds he deposited in the Morgan Stanley account during the pendency of litigation, (4) holding him in contempt, and (5) awarding Wife attorney's fees. We address each argument in turn.

         A. Alimony

         Husband first argues the family court erred in awarding permanent, periodic alimony to Wife. We disagree.

         "Permanent, periodic alimony is a substitute for support which is normally incidental to the marital relationship." Butler v. Butler, 385 S.C. 328, 336, 684 S.E.2d 191, 195 (Ct. App. 2009). "Alimony should ordinarily place the supported spouse, as nearly as is practical, in the same position he or she enjoyed during the marriage." Hinson v. Hinson, 341 S.C. 574, 577, 535 S.E.2d 143, 144 (Ct. App. 2000) (per curiam). The family court has a duty to formulate an alimony award that is fit, equitable, and just if the claim is well-founded. Allen v. Allen, 347 S.C. 177, 184, 554 S.E.2d 421, 424 (Ct. App. 2001).

         In making an alimony award, the family court must consider the following statutory factors: (1) the duration of the marriage, (2) physical and emotional health of the parties, (3) educational background of the parties, (4) employment history and earning potential of the parties, (5) standard of living established during the marriage, (6) current and reasonably anticipated earnings of the parties, (7) current and reasonably anticipated expenses of the parties, (8) marital and nonmarital properties of the parties, (9) custody of children, (10) marital misconduct or fault, (11) tax consequences, (12) prior support obligations, and (13) any other factors the court considers relevant. S.C. Code Ann. § 20-3-130(C) (2014).

         Husband raises several points as to why Wife should not be entitled to permanent alimony of $5, 000 per month and why she should return any payments made under the temporary order. First, Husband maintains that Wife's gross monthly income is actually $8, 210 because, in addition to her imputed income of $1, 500 per month, Wife will receive $6, 710 per month in investment income based upon the Morgan Stanley account's historical return rate of 6.71%. Second, Husband claims the family court miscalculated Wife's monthly expenses at $5, 500, which he contends are actually $4, 532 if Wife pays off the mortgage on the former marital home. Third, Husband states the parties both testified to living an extremely frugal lifestyle during the marriage and Wife will receive over $1.2 million in liquid marital assets to support herself.

         We find the family court did not err in awarding alimony to Wife. The family court analyzed the statutory factors extensively in determining its award. Among them, the court stated Husband and Wife were in a long-term marriage of about thirty years, and Husband's adultery contributed to its demise. The court found Wife supported the family in the early years of the marriage while Husband advanced his education and also looked to the vast disparity in the current financial resources of the parties. Contrary to Husband's position that they lived a frugal ...

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