Lewis affirms child custody but remands child support based on improper imputation of husbands’s income

Posted Wednesday, November 14th, 2012 by Gregory Forman
Filed under Attorney's Fees, Child Custody, Child Support, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys, South Carolina Appellate Decisions, South Carolina Specific

The November 14, 2012 Court of Appeals opinion in Lewis v. Lewis, 400 S.C. 354, 734 S.E.2d 322 (Ct. App. 2012), provides some guidance on imputing income to unemployed spouses and parents and deciding whether to award joint custody.

In Lewis, the family court denied Husband’s request for joint custody and imputed monthly income to him of $2,900.00 in setting child support.  Husband appealed.

The Court of Appeals reversed and remanded the child support determination.  It found that the family court failed to set forth an adequate factual basis for imputing that amount of income to unemployed Husband:

The family court made no finding whatsoever as to whether Husband was at fault in losing his job, whether he was voluntarily unemployed, or whether he put forth his best efforts to gain employment equal to his capabilities.  More importantly, it failed to address the necessary factors delineated by the child support guidelines concerning recent work history, occupational qualifications, prevailing job opportunities and earning levels in the community.  Additionally, there is nothing in the record to suggest how the family court arrived at the annual income figure of $34,800 to be imputed to Husband.  Further, the family court specifically acknowledged at the hearing on Husband’s motion for reconsideration that it did not remember why it arrived at that figure.  The family court failed to address the factors required by the guidelines, and we simply cannot find evidence in the record before us to support the court’s imputation figure of $34,800.

However, the Court of Appeals affirmed the family court’s decision not to award Husband joint custody.  The family court had already awarded Husband what would be considered liberal visitation in South Carolina: every other Friday to Monday; one afternoon of off-week visitation; alternating holidays; and four weeks at summer.  Husband had two arguments to support his claim for joint custody.  First, relying upon Paparella v. Paparella, 340 S.C. 186, 191, 531 S.E.2d 297, 300 (Ct. App. 2000), he argued that he was entitled to joint custody because he claimed that the parties shared equally in caring for their son before the separation.  Second, he argued that “because he and Wife do not communicate well, joint custody would be healthiest, as it keeps the child from developing a negative perception of the non-custodial parent.”

The Court of Appeals rejected both arguments. It distinguished Paparella, noting that Husband was awarded more visitation than the father in Paparella and that in Paparella the mother had acknowledged that father should get more time with the child while, in this case, Wife did not agree Husband should get more time.  Moreover, the Court of Appeals concluded that Husband “has [not] met his burden of convincing us by the preponderance of the evidence that he was involved with Son like the father was involved with raising his children in Paparella.”

In rejecting Husband’s claim that he should get joint custody due to the poor communication between the parties, the Court of Appeals found Husband to blame for much of the acrimony.  Prior to the separation, Husband evidently left Wife a note reading “I WISH YOU WOULD LEAVE!”  He admitted to beating the family dog.   He tore up pictures of the parties’ son.  While Husband had explanations for this behavior, the Court of Appeals found this behavior mandated against an award of joint custody:

He likewise admitted putting his fist through a wall, explaining he was hurt and upset at things Wife had said to him during an incident with the dog. Yet, Husband repeatedly denied that he had a temper or that he was angry during the various incidents, and denied being abusive toward Wife. We find Husband’s credibility is suspect.

Finally the Court of Appeals denied Husband request to award him attorney’s fees:

Here, we note that at the time of trial, Husband had managed to pay a substantial portion of the attorney’s fees he incurred with three separate attorneys… More importantly, our review of the record reflects that Husband was, if not primarily, at least equally to blame for the protracted litigation in this matter, and this failure to cooperate supports the family court’s determination that each party should be responsible for his and her own attorney’s fees.  We find further support for this in the position taken by Husband during his motion for reconsideration, wherein his attorney stated, “I cannot imagine, when you apply the law to the financial circumstances of these parties, that there would be any other outcome other than they would each pay their own fees.” Accordingly, we find no error in the denial of attorney’s fees to Husband, even in light of our recommended remand on the issue concerning imputed income.

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