Lee B. Moore, Respondent/Appellant,
Debra L. Moore, Appellant/Respondent. Appellate Case No. 2016-000531
October 9, 2018
From Greenville County Tarita A. Dunbar, Family Court Judge
Falkner Wilkes, of Greenville, for Appellant/ Respondent.
Elizabeth Kimberly Berry, of Mooneyham Berry LLC, of
Greenville, for Respondent/Appellant.
divorce action involving cross-appeals, Debra Moore (Wife)
appeals, arguing the family court erred in reducing the
amount of her alimony. Lee Moore (Husband) also appeals,
arguing the family court erred in (1) not sufficiently
reducing his alimony obligation and (2) finding Husband
presented no evidence to support his claim that Wife
cohabitated for 90 consecutive days with her boyfriend and
any periods of separation were intended to circumvent the
90-day rule. Both parties argue the court erred in awarding
attorney's fees. We reverse and remand.
and Wife were divorced on July 15, 2003. Husband was ordered
to pay Wife $3, 800 per month in permanent periodic alimony.
The parties agreed the amount of alimony was determined
"by the circumstances of Husband having a gross yearly
income of approximately $150, 000" and allowed Wife
"the right to earn up to $28, 000 per year from
employment without same being a change of circumstances as to
her independent income status as affecting the issue of
7, 2009, Husband filed an action seeking elimination or
reduction of alimony. Husband stated he had changed jobs and
was earning $130, 000, which was comprised of a guaranteed
base salary of $80, 000 and commissions that were not
guaranteed. Wife earned $20, 789 in 2010. The parties reached
an agreement to reduce Husband's alimony to $3, 250 per
month, beginning February 2011.
29, 2013, Husband filed a second action seeking elimination
or reduction of alimony. His request was based on a reduction
in his income and Wife's continued cohabitation with a
man she was romantically involved with. Husband asserted his
current employment enabled him to earn up to $80, 000 per
year. Wife asserted Husband was changing jobs for lower pay
to avoid paying his alimony obligations. After a temporary
hearing, the court found there had been a substantial change
in Husband's circumstances that warranted reducing his
alimony payments to $2, 000 per month, beginning August 2013.
A hearing was held April 1-2 and June 17, 2015. The court
issued its final order on September 22, 2015. The court
declined to terminate Husband's alimony obligation, but
it reduced Husband's alimony obligation to $2, 275. The
court also ordered Husband to pay $10, 000 of Wife's
October 2015, Wife and Husband filed separate motions to
alter or amend the September 22, 2015 judgment. A hearing on
the motions was held on November 30, 2015. The court issued
its order on January 20, 2016, amending the September 22,
2015 order. In its order, the court further reduced
Husband's alimony obligation to $1, 800 per month. On
February 9, 2016, the court issued a corrective order
regarding the January 20, 2016 order. These appeals followed.
appeal from the family court, this court reviews factual and
legal issues de novo. Stoney v. Stoney, 422 S.C.
593, 594, 813 S.E.2d 486, 486 (2018); Lewis v.
Lewis, 392 S.C. 381, 386, 709 S.E.2d 650, 652 (2011).
Although this court reviews the family court's findings
de novo, we are not required to ignore the fact that the
family court, which saw and heard the witnesses, was in a
better position to evaluate their credibility and assign
comparative weight to their testimony. Stoney, 422
S.C. at 595, 813 S.E.2d at 487; Lewis, 392 S.C. at
384-85, 709 S.E.2d at 651-52. "[D]e novo standard of
review does not relieve an appellant from demonstrating error
in the [family] court's findings of fact."
Lewis, 392 S.C. at 385, 709 S.E.2d at 652 (italics
omitted). Thus, "the family court's factual findings
will be affirmed unless [the] 'appellant satisfies this
court that the preponderance of the evidence is against the
finding of the [family] court.'" Id. at
392, 709 S.E.2d at 655 (quoting Finley v.
Cartwright, 55 S.C. 198, 202, 33 S.E. 359, 360-61