S.E. 2d
THE STATE OF SOUTH CAROLINA
In The Supreme Court
Su Hnyn Sharps, Petitioner
v.
Loyde P. Sharps, Respondent
ON WRIT OF CERTIORARI TO THE COURT OF
APPEALS
Appeal From Berkeley County
Wayne M. Creech, Family Court Judge
Opinion No. 25185
Heard April 6, 2000 - Filed August 14, 2000
REVERSED
Peter D. Deluca, Jr., of Deluca & Maucher, L.L.P., of
Goose Creek, for petitioner.
Constance A. Anastopoulo, of Anastopoulo Law Firm,
of Charleston, for respondent.
CHIEF JUSTICE TOAL: The trial court awarded an increase in
monthly alimony payments to a spouse. The Court of Appeals reversed. We
reverse the Court of Appeals and reinstate the trial court's order.
p.504
Sharps v. Sharps
FACTUAL/PROCEDURAL BACKGROUND
In 1971, Su Hnyn Sharps ("Wife") married Loyde P. Sharps ("Husband")
in Korea. Shortly after their marriage, the couple relocated to the United States
and had two daughters. After thirteen years of marriage, the couple divorced in
1984. In the divorce decree, the court awarded Wife custody of their two minor
children, child support of $400 a month, the marital home, and the right to
pursue alimony after a period of thirty months.
After the thirty-month period, Wife filed a petition seeking alimony. The
court awarded Wife $100 per month in alimony, increased to $150 a month after
one year. By 1996, both children had reached the age of majority and Husband
was no longer required to make child support payments. In 1997, Wife filed a
petition seeking an increase in the amount of alimony payments claiming a
substantial change in circumstances. Wife alleged the changes in both parties'
incomes, an increase in the cost of living, and the termination of the child
support payments warranted an adjustment in the amount of alimony paid by
Husband.
At trial, Wife asserted the changes she believed warranted an increase in
alimony. Wife testified that she was 60 years old, her monthly wages had
increased by $489.63, her monthly expenses increased by $26.80 (due to an
increase in her mortgage payment), the emancipation of her children had ended
Husband's $400 a month child support obligation, she was unable to meet her
financial obligations resulting in a monthly deficit, and she suffered from
arthritis. She had obtained only the equivalent of an eight grade education in
Korea and she could not write English.
Wife called Husband to testify at trial. Husband testified that he has
worked for the United States Post Office since 1987. Since his divorce from Wife,
Husband has remarried and then divorced a second wife. This second marriage
did not produce any children, and Husband has no alimony responsibilities to
the second wife. Husband testified that his income has increased by $1,497 per
month since the initial award of alimony. The trial court also believed Husband
attempted to deceive it concerning his financial obligations. At the time of the
hearing, Husband was engaged for a third time to a woman with multiple
sclerosis. At the hearing, Husband attempted to disguise his fiancee's car loan
as a second loan on his truck. Also, the trial court found Husband attempted to
include some of his fiancee's medical bills as part of his financial obligations.
Following Wife's presentation of her case, Husband moved for a directed
p.505
Sharps v. Sharps
verdict. Husband argued that Wife did not prove a substantial change in
circumstances because the termination of child support was an anticipated event
and general inflation along with Husband's increased income were not proper
reasons for an increase in alimony. The trial court denied Husband's motion.
The trial court found a substantial change in circumstances and increased
Husband's monthly alimony obligation from $150 to $475. The court based its
ruling on the increase in Husband's income, a decrease in Husband's expenses,
the increase in Wife's expenses, the thirteen-year length of the marriage, and
their respective ages.
Husband appealed to the Court of Appeals arguing the family court erred
in finding a substantial change in circumstances, erred in considering the
termination of child support as a change in circumstance, erred in applying
section 20-3-130(C)(12)(the existence of other support obligations), and erred by
overlooking Wife's donations to her church as a sign of lack of need for alimony.
The Court of Appeals agreed with Husband on several grounds. The Court of
Appeals held the trial court improperly relied on the termination of child support
to find a change in circumstances. The Court of Appeals also ruled general
inflation and Husband's increase in salary were not sufficient to warrant a
modification of alimony. The Court of Appeals also questioned the accuracy of
Wife's financial declaration. See Sharps v. Sharps, Op. No. 99-LTP-081 (S.C. Ct.
App. filed February 9,1999). Wife has appealed and the issues before the Court
are:
I. Did the Court of Appeals err in finding the termination of child
support is an anticipated event that cannot qualify as a change in
circumstance?
II. Did the Court of Appeals err in overruling the trial court's
determination that significant changes of circumstances existed
warranting an increase in alimony?
LAW/ANALYSIS
I. Termination of Child Support as a Basis for Increasing Alimony
Wife argues the Court of Appeals erred in overruling the trial court's
reliance on the termination of child support as a factor in finding a substantial
change of circumstances. We agree.
Once a court sets the amount of periodic alimony, that amount may be
p.505
Sharps v. Sharps
modified under the guidelines of S.C. Code Ann. § 20-3-170 (1985). That statute
states in part:
Whenever [a spouse] . . . has been required to make his or her
spouse any periodic payments of alimony and the circumstances of
the parties or the financial ability of the spouse making the periodic
payments shall have changed since the rendition of such judgment,
either party may apply to the court which rendered the judgment for
an order and judgment decreasing or increasing the amount of such
alimony payments or terminating such payments . . .
(emphasis added). In order to justify modification, the changes in circumstances
must be substantial or material. See Thornton v. Thornton, 328 S.C. 96, 492
S.E.2d 86 (1997). Our Court of Appeals has held that: "Generally, changes in
circumstances within the contemplation of the parties at the time the decree was
entered do not provide a basis for modifying either an alimony allowance or a
child support award." Calvert v. Calvert, 287 S. C. 130,139, 336 S.E.2d 884, 889
(Ct. App. 1985).
Using Calvert, courts have refused to adjust alimony where the substantial
change alleged was known by the parties at the time of the decree. For example,
an increase in the wife's income from her re-entry into the workforce after the
divorce has been found not to qualify as a substantial change where her future
employment was contemplated during the divorce proceedings. See Kelley v.
Kelley, 324 S.C. 481, 477 S.E.2d 727 (Ct. App. 1996); Lynn v. Lynn, 290 S.C. 359,
350 S.E.2d 403 (Ct. App. 1986). Also, changes in financial status as a result of
the property division from the divorce are generally in the contemplation of the
parties at the time of the divorce and do not qualify as a substantial change. See
Kielar v. Kielar, 311 S.C. 466, 429 S.E.2d 851(Ct. App. 1993); Kneece v. Kneece,
296 S.C. 28, 370 S.E.2d 288 (Ct. App. 1988). Prior to Calvert, the Court of
Appeals even found the increase in expenses to the husband as a result of the
wife's immediate relocation with her new spouse to Virginia could not be
considered in determining whether a substantial change existed because the
parties contemplated her move during the divorce. See Nelson v. Merritt, 281
S.C. 126, 314 S.E.2d 840 (Ct. App. 1984).
In light of Calvert and subsequent Court of Appeals cases, courts usually
consider only those changes that were unknown to the parties at the time of the
separation decree in determining if a substantial change has occurred
warranting a modification of alimony. The original divorce decree generally
addresses these expected changes. However, there are some future changes
p.506
Sharps v. Sharps
which may be in contemplation of the parties at the time of the decree but, due
to other considerations, cannot be addressed at that time in the divorce decree.
The termination of child support in the current case is one situation
where, even though the future event was known at the time of the separation,
the trial court could not properly address that expected change in the divorce
decree. Because a court cannot always know what conditions will exist in the
future, it would be arbitrary to automatically increase alimony or child support
in the far distant future based on the happening of anticipated events. See
Condon v. Condon, 280 S.C. 357, 312 S.E.2d 588 (Ct. App. 1984); Shafer v.
Shafer, 283 S.C. 205, 320 S.E.2d 730 (Ct. App. 1984). We are not holding that
all automatic increases in alimony are per se unenforceable. In many cases, such
as the current one, the family court may structure a short period of time that
allows the paying spouse to adjust to the new financial situation of a divorce
before raising the amount of monthly alimony to a set amount. As long as any
such increase does not occur too far into the future, these orders are proper and
enforceable.
Our ruling today does not in anyway affect a party's ability to financially
obligate themselves for the payment of expenses to be incurred in the future.
For example, even when a child is very young, a parent may contractually
obligate himself or herself to pay educational expenses of the child beyond the
age of majority. See Stanaland v. Jamison, 275 S.C. 50, 268 S.E.2d 578 (1980).
Such agreements are enforceable. Also, a family court has the authority to
assign responsibility for college expenses if certain factors are met. See Risinger
v. Risinger, 273 S.C. 36, 253 S.E.2d 652 (1979). Since a modification hearing will
not be used to relitigate issues settled in the original divorce decree, these
assignments of responsibility will be enforced.
In the current matter, Wife does not contend that she did not know about
the eventual emancipation of her children and the subsequent cessation of child
support. However, if the original divorce decree had attempted to increase
Wife's alimony following the emancipation of the children, the amount of that
increase would have been arbitrary and unenforceable in light of the substantial
amount of time between the original decree and the emancipation. Also, had the
original decree in this case granted Wife a greater amount of periodic alimony,
it may have unfairly exceeded Husband's financial ability to pay the child
support, the alimony, and support himself as well.
As a general rule, a court hearing an application for a change in alimony
should look not only to see if the substantial change was contemplated by the
p.507
Sharps v. Sharps
parties, but most importantly whether the amount of alimony in the original
decree reflects the expectation of that future occurrence. Our decision today
should not be read as a holding that the cessation of child support will always
result in a substantial change warranting an adjustment in alimony. Cases will
exist where the termination of child support will occur so close in time to the
decree setting alimony that the expected cessation of child support will be
reflected in the alimony amount owed to a spouse. Furthermore, there will be
cases where even though the cessation of child support is very remote in time to
the setting of alimony, the termination of child support will not result in a
substantial change warranting an adjustment of a spouse's alimony.
In the current case, the original amount of alimony awarded to Wife
clearly reflected the consideration that Husband would also be paying child
support. By requiring Wife to wait thirty months before she could pursue
alimony, as well as setting the one-year period of reduced alimony, the family
court further revealed a concern about Husband's ability to afford paying both
child support and alimony while also supporting himself. Although the
emancipation of the children was an expected event, the original divorce decree
would not have been able to make a future adjustment in alimony in favor of
Wife because doing so would have required substantial speculation as to future
conditions. As a result, the family court properly relied on the termination of
child support in its overall analysis of whether a substantial change had taken
place.
II. Substantial Change Warranting an Increase in Alimony
Wife argues the Court of Appeals erred in finding she failed to prove a
substantial change in circumstances warranting the increase in alimony
payments. We agree.
Questions concerning alimony rest with the sound discretion of the trial
court, whose conclusions will not be disturbed absent a showing of abuse of
discretion. Bannen v. Bannen, 286 S.C. 24, 331 S.E.2d 379 (Ct. App. 1985). An
abuse of discretion occurs when the court is controlled by some error of law or
where the order, based upon findings of fact, is without evidentiary support.
McKnight v. McKnight, 283 S.C. 540, 324 S.E.2d 91(Ct. App. 1984). However,
an appellate court reviewing a family court order may find facts in accordance
with its own view of the preponderance of the evidence. Kelley v. Kelley, 324 S. C.
481, 477 S.E.2d. 727 (Ct. App. 1996). We disagree with the Court of Appeals'
conclusion that Husband's increase in income was the only changed
circumstance. Wife also experienced a dramatic increase in the deficit between
p.508
Sharps v. Sharps
her income and expenses. Furthermore, the cessation of child support had a
significant impact on the financial circumstances of Wife. By relying on all of
these factors, the trial court had the authority to adjust the amount of alimony
paid by Husband.
CONCLUSION
For the foregoing reasons, we REVERSE the opinion of the Court of
Appeals and reinstate the trial court's order increasing the amount of alimony.
MOORE, WALLER, BURNETT and PILEICONES, JJ., concur.
p. 509