Mark M. Sweeney, Petitioner,
Irene M. Sweeney, Respondent. Appellate Case No. 2017-001583
January 29, 2019
from Greenville County David E. Phillips, Family Court Judge
OF CERTIORARI TO THE COURT OF APPEALS
W. Bannister and Luke A. Burke, both of Bannister, Wyatt
& Stalvey, LLC, of Greenville, for Petitioner.
M. Yokel, of Greenville, for Respondent.
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
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.
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.
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.
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. 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.
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.
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 ...