In the history of South Carolina husbands who wish they had a prenup, I bet there are few with more justification for this feeling than Andrew Michael Myers. The January 19, 2011 Court of Appeals opinion Myers v. Myers, 391 S.C. 308, 705 S.E.2d 86 (Ct. App. 2011), provides some fascinating views of South Carolina’s contemporary divorce jurisprudence. Any man who thinks marriage is a sucker’s bet will find plenty of support for that belief in this opinion.
A nine-year third marriage with no children and no fault for folks in their early sixties is, as even husband conceded, a permanent periodic alimony case!?! From case law noting that rehabilitative alimony should be awarded in very limited circumstances, this has been my understanding of the law. Up to now many of my clients and colleagues would disagree with this understanding of the law but Myers evinces an almost prodigal view towards alimony awards.
Further, during the marriage, by the parties’ agreement, Wife used her salary exclusively for her own benefit while Husband paid all the bills and their living expenses from his earnings. Yet the Court of Appeals affirmed an equitable distribution award that gave Wife 48% of the marital estate!?!
Finally, because Husband earns more than Wife and because Wife obtained permanent alimony, the Court of Appeals affirmed an award of attorney’s fees to Wife that amounted to almost 40% of Husband’s property division award!?!
Bet Mr. Myers wished he had a prenup.
Still the Court of Appeals opinion offered Mr. Myers some relief from the family court order. The family court awarded Wife $3,o00 a month in permanent periodic alimony, which provided Wife with greater income than Husband. This award went to a woman whose leisure activity of choice was, according to this opinion and apparently according to her own testimony, shopping. The family court had no issue with Wife’s $6,000 per month in claimed expenses but took issue with Husband’s exact same figure in claimed monthly expenses because it found he “double counted” some expenses.
The Court of Appeals found some of Wife’s expenses overstated, including her “$2,300 per month on clothing, entertainment, trips, clubs, hair care, cosmetics, pet care, nails, tanning, and gifts” and “almost $1,000 per month for food and household supplies.” Further it appears the family court considered some of Husband’s expenses overstated because his business paid them. But the family court also found Husband’s income was greater than his actual wages because his business paid these housing and car expenses. Thus it was the family court, not Husband, who “double counted” these expenses. Based on Husband’s income of $100,000 a year [$8,133.33 per month] and Wife’s income of $2,455 per month, the Court of Appeals reduced Husband’s alimony obligation to $2,000 per month. Still not bad for a nine-year third marriage in which Wife’s income was used solely for her benefit and her primary leisure activity was shopping.
On equitable distribution, the Court of Appeals found that Husband’s F-150 Truck was not turned into a marital asset merely because the inheritance he used to purchase this truck was initially deposited into the parties’ joint checking account. The Court of Appeals noted:
The nonmarital character of inherited property may be lost if the property becomes so commingled as to be untraceable; is utilized by the parties in support of the marriage; or is titled jointly or otherwise utilized in such manner as to evidence an intent by the parties to make it marital property. The phrase “so commingled as to be untraceable” is important because the mere commingling of funds does not automatically make them marital funds.
Citations omitted. Myers establishes the important point that commingled funds which remain traceable retain their status as separate property. The remainder of the Myers opinion on equitable distribution affirmed an award that it calculated as a 48/52% distribution to Wife. Again, not bad for a nine-year third marriage in which Wife’s income was used solely for her benefit and her primary leisure activity was shopping.
Finally, because, on appeal, the Court of Appeals reduced some of Wife’s beneficial results, it reduced her award from 60% to 50% of the $42,957 in attorney’s fees and costs she sought. It justified this $21,478.50 fee award by Husband’s greater income and greater non-marital assets and on Wife’s successful results in obtaining permanent alimony [an issue Husband didn’t dispute] and property division. Yet again, not bad for a nine-year third marriage in which Wife’s income was used solely for her benefit and her primary leisure activity was shopping.
My male clients often complain that the South Carolina Family Court makes marriage a sucker’s bet. The Myers opinion provides ammunition for this claim. While substantial permanent periodic alimony can be justified in a long-term marriage in which one spouse devotes his (or more likely her) life to raising the parties’ children or in which there is substantial marital fault, I doubt few states other than South Carolina would require a husband to pay almost 25% of his income in alimony in a situation such as this. Further, in a short marriage where one spouse earns and the other spouse shops, how can anything close to a 50/50 division of assets be justified, especially when Husband’s attorney fee obligation amounts to almost 40% of his equitable distribution award?
Surely Ms. Myers deserves some alimony and property division from a husband who evidently left a marriage in which he was unhappy. But after a nine-year marriage that supported his wife’s shopping habit, shouldn’t Mr. Myers be entitled to keep more of his income?