Mark M. Sweeney, Appellant/Respondent,
Irene M. Sweeney, Respondent/Appellant. Appellate Case No. 2014-001850
February 13, 2017
From Greenville County David E. Phillips, Family Court Judge.
W. Bannister and Luke A. Burke, both of Bannister, Wyatt
& Stalvey, LLC, of Greenville, for Appellant/Respondent.
M. Yokel, of Greenville, for Respondent/Appellant.
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.
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.
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.
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
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
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.
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. Husband later admitted he withdrew the
funds to pay for education and various expenses of 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
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.
court noted Wife reported $6, 979 in post-separation monthly
expenses on her financial declaration. 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.
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.
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
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
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.
first argues the family court erred in awarding permanent,
periodic alimony to Wife. We disagree.
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).
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).
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
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 ...