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Sweeney v. Sweeney

Supreme Court of South Carolina

March 20, 2019

Mark M. Sweeney, Petitioner,
v.
Irene M. Sweeney, Respondent. Appellate Case No. 2017-001583

          Heard January 29, 2019

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

         ON WRIT OF CERTIORARI TO THE COURT OF APPEALS

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

          David M. Yokel, of Greenville, for Respondent.

          HEARN JUSTICE.

         In this marital litigation, we address whether the family court adequately considered the projected growth of a party's liquid assets apportioned through equitable division in awarding alimony. Although the court acknowledged Respondent Irene Sweeney would receive substantial income from her share of an investment account, it granted her alimony. The court of appeals affirmed, noting the family court extensively analyzed the statutory factors governing alimony. Sweeney v. Sweeney, 420 S.C. 69, 800 S.E.2d 148 (Ct. App. 2017). We affirm and clarify that in determining alimony, family courts should consider the effect of investment income on both parties.

         FACTS

         Mark and Irene Sweeney married in 1984 and over the course of their marriage had three children. Husband worked for several different employers before establishing a consulting business with a partner, McCallum Sweeney Consulting (MSC). During this time, Wife stopped teaching special education and remained at home, caring for the children. In the mid-2000s, MSC became extremely successful, enabling the family to be financially secure. Eventually, the marriage began to falter, and Husband filed for a no-fault divorce in February 2012. Wife counterclaimed, asserting Husband committed adultery and seeking, inter alia, alimony.

         At trial, Husband acknowledged that he had been in contact with a woman who lived in Chicago, but said she was merely a family friend. He denied having any adulterous relationship until after he moved out of the marital home. Additionally, Husband believed the marriage began to fall apart years earlier, and the couple only planned to remain together until their last minor child vacated the marital home.

         Wife disputed Husband's account, believing the marriage broke down only after she discovered Husband had been frequently texting another woman. Wife confronted Husband, who denied having an affair but agreed he would not contact her again. However, several months later, in February 2012, Wife searched Husband's phone and realized he had been texting the woman again. It was then that the parties separated and this litigation ensued.

         Both parties presented expert testimony concerning the parties' liquid assets, including a Morgan Stanley investment account containing $1, 060, 119, several retirement accounts, and whole life insurance policies. Husband's expert, Michael Meilinger, testified that the five-year historical rate of return on the account was 6.71%. Based on this rate, Meilinger opined Wife did not need alimony because she could draw $67, 297 annually from the account, or about $5, 608 monthly, without invading the principal.[1] Meilinger imputed $18, 000 annually in income-$1, 500 per month, based on minimum wage employment. After testifying that Wife's expenses were $5, 446.16 per month, Meilinger believed the imputed income and the amount the account would produce would provide Wife the financial means to maintain a similar lifestyle without alimony.

         On cross-examination, Meilinger acknowledged that Wife would have to liquidate the investment account over time in order to pay her monthly expenses. By doing so, Wife would have only about $100, 000 left in the account by the time she is 80. Meilinger conceded that Husband, with his monthly income of approximately $34, 000, would be able to maintain his share of the investment account without having to use its income to support himself.

         Wife's expert, Douglas Henderson, recommended an alimony award of $7, 500 based on her monthly expenses of $6, 699. Regarding the investment account, Henderson disagreed that an investment return based on a hypothetical future return rate should be used to offset the need for alimony, as there was too much risk and too many assumptions underlying the projection. Further, he highlighted financial documents which demonstrated that the account only produced approximately $1, 281.80 per month during the first quarter of 2014. Finally, he unequivocally testified that in order to ...


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