(Un)important unpublished rehabilitative alimony opinion from Court of Appeals

Posted Thursday, February 2nd, 2012 by Gregory Forman
Filed under Alimony/Spousal Support, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys, South Carolina Appellate Decisions

I was eagerly awaiting the Court of Appeals decision in Allen-Hines v. Hines because I was hoping it would answer the question of whether a short marriage alone was sufficient to award rehabilitative alimony rather than permanent periodic alimony.  On August 29, 1988, the Court of Appeals affirmed an award of one year rehabilitative alimony over wife’s objection in Bryan v. Bryan, 296 S.C. 305, 372 S.E.2d 116, 119 (Ct.App. 1988).  This is the last reported South Carolina appellate opinion to do so.

On February 1, 2012 the Court of Appeals issued the second unpublished opinion in this case, Allen-Hines v. Hines.  In the first unpublished opinion, Allen-Hines v. Hines, Op. No. 2008-UP-198 (S.C. Ct. App. filed Mar. 20, 2008), the Supreme Court remanded the family court’s award of rehabilitative alimony with instructions that Wife “is entitled to permanent periodic alimony, unless a showing is made of special circumstances justifying rehabilitative alimony.”

On remand the family court again awarded rehabilitative alimony, finding Wife “is very able to work,” “does not need any training in order to secure employment,” and “does not need any additional time to acquire job skills in that she presently has more than adequate job skills.”  Wife appealed and the Court of Appeals reversed and remanded.  The Court of Appeals concluded “the family court erred in awarding rehabilitative alimony to someone it found needed no rehabilitation.”  It remanded with instructions for that “the family court shall make written findings of fact under the factors listed in subsection 20-3-130(C) of the South Carolina Code (Supp. 2010) and award Karen an appropriate amount of permanent periodic alimony.”

Wife’s attorney, Robert Rosen, graciously sent me the family court’s Order on Remand.  Per that order, this was a 5 year, 4 month marriage in which for 2 ½ years Husband slept at Wife’s house but didn’t live there.  Wife was 53 years old at the time of the remand hearing.  She had assets of $500,000, primarily from the estate of a previous (deceased) husband, had a Masters Degree in Public Administration, and earned $40,000 per year.  Mr. Hines had a comfortable but not extravagant lifestyle and the family court found that the lifestyle Wife established was primarily funded from the money of her first marriage.  None of these factual findings were disputed by the Court of Appeals.  Still, unless this appeal is subsequently reversed, Wife will be awarded permanent alimony.

Had this opinion been published, it would offer substantial support for my (admittedly minority) opinion that, under current South Carolina law, duration of marriage has little bearing on whether the family court should award permanent or rehabilitative alimony and that absent evidence of rehabilitation such alimony awards must be permanent.  Such is my frustration with unpublished appeals.

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