Court of Appeals decision in Mosley addresses child support and equitable distribution issues

The November 10, 2010 Court of Appeals opinion in Mosley v. Mosley, 390 S.C. 524, 702 S.E.2d 253 (Ct. App. 2010) reversed the family court’s determinations on child support and equitable distribution and remanding the issue of attorney’s fees.  There was little very novel about the facts in Mosley but the Court of Appeals opinion does clarify some legal issues.  To wit:

Where Wife was paying the day care provider $60.00 per week but sometimes gave her extra money, it was an error for the family court to set child support based on the $390.00 per month that Wife estimated she was paying rather than the $260.00 per month she was obligated to pay.

Where Husband has grossly understated his income and failed to list retirement income in his initial financial declaration, and this financial declaration was used to set his temporary child support obligation, it was not an error for the trial court to increase his child support obligation retroactive to the date of filing.  Husband tried to argue that Wife had not sought such retroactive adjustment in her pleadings but the Court noted  the “decision to award retroactive child support rests in the sound discretion of the family court.”  It is unclear why Husband thought Wife should have plead for retroactive child support with her initial pleading to preserve the right to seek adjustment later on.  It is further unclear why Husband thought the courts should allow him to benefit from his deliberately understating his income.

The Court of Appeals found the family court erred in not treating a $77,000 second mortgage taken out by the parties after litigation commenced to be a marital debt.   The family court found that Wife did not consent to the second mortgage on the house.   However the parties took out this mortgage to pay for construction overruns and to avoid a lien being placed on the property, which Wife acknowledged at the final hearing.  Husband admitted Wife initially hesitated to sign the mortgage, but she was afforded well over a week to take her name off the mortgage before the closing.  Wife presented no testimony that she signed the mortgage as a result of fraud, accident, or mistake.  Wife said she was advised by counsel that she needed to sign the document to protect her rights, but she should not have been responsible because the construction of the house was solely Husband’s project.  Based on these facts, it’s hard to understand why the family court thought the second mortgage wasn’t a marital debt, as the debt meets the test of being for the joint benefit of the parties.

Because the Court of Appeals found this second mortgage to be a marital debt, it determined there was no equity in the marital home to be divided.  The family court’s order apparently failed to equitably divide the parties’ remaining marital property.  The Court of Appeals remanded all equitable distribution issues back to the family court.

Finally because the Court of Appeals modified child support and remanded equitable distribution, it also remanded the family court’s award of $3,880 for Wife’s attorney’s fees.

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