Court of Appeals reinstates final order’s award of alimony and attorney’s fees

Posted Thursday, August 4th, 2022 by Gregory Forman
Filed under Alimony/Spousal Support, Attorney's Fees, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys, South Carolina Appellate Decisions, South Carolina Specific

The August 3, 2022, Court of Appeals opinion in Cohen v. Cohen, 438 S.C. 9 881, S.E.2d 650 (Ct. App. 2022), reinstates the family court’s final order’s award of alimony and attorney’s fees to Wife.

In Cohen Wife filed for divorce after discovering Husband was having an affair with her second cousin. The case proceeded to trial.  At the time of trial, Wife had a bachelor’s degree and two master’s degrees, one of which she obtained during the marriage.  Wife was working in education, earning $4,713.53 per month gross and $2,788.49 per month net. She had monthly expenses of $3,966.28, which included a small monthly mortgage but substantial student loans.

In contrast, Husband worked as a longshoreman for the ILA.  He has been laid off by the ILA nine times between 2005 and 2018, and Wife provided most of the financial support during this period. However, at the time of trial, Husband was working as a longshoreman making $6,745 per month gross and $4,103 per month net.  He declared monthly expenses of $4,544, some of which was his temporary spousal support obligation.  He also admitted his live-in girlfriend shared in some of his monthly expenses.

The family court initially awarded Wife $650 per month in permanent periodic alimony and ordered Husband to pay $10,500 of Wife’s attorney’s fees.  Husband filed a Rule 59(e) motion.  Upon reconsideration the family court reversed its alimony award. It found, by Wife’s admission, Husband did not provide financial support to her during the marriage.  The family court further reversed its award of attorney’s fees.  Wife appealed

The Court of Appeals reinstated the family court’s initial final award of alimony and attorney’s fees. On the alimony issue, Wife argued that she supported Husband while he accrued the ILA seniority that now enabled him to earn more money than her.  The Court of Appeals found that the family court, in denying Wife alimony, placed too much emphasis on her non-marital assets and her low mortgage.  It held the family court failed to properly consider all the alimony factors of S.C. Code § 20-3-130(C).

In weighing these factors, the Court of Appeals noted “that Wife and Husband’s ten-year marriage, while not long-term, was not of such a short duration to overly affect our alimony determination, especially considering other factors militate towards Husband paying alimony.” It noted Wife would still have a shortfall after paying off the home mortgage and that her potential student loan forgiveness was “speculative.”  It further noted Husband’s fault in the marital breakup and his financial ability to pay alimony.

The Court of Appeals further justified reinstating the $650 per month alimony obligation by noting:

Finally, Wife supported Husband through his injuries and a great economic downturn using her education and stable employment as a school teacher. Wife’s support allowed Husband to heal his injuries, return to work, receive senior status with the ILA, and realize a substantial pay increase. Wife now shows a need for alimony and would not require alimony but for Husband’s adulterous relationship. Wife should not be penalized now, and left in need, because she supported Husband for the majority of their marriage, especially considering Husband’s ability to contribute financially to the marriage transpired at the end of the marriage and after his adulterous relationship. Because Wife shows a need for alimony, Husband has the ability to pay alimony, and the other factors militate towards awarding Wife alimony, we find the family court erred in denying Wife alimony.

The Court of Appeals also reversed and reinstated the $10,500 attorney fee award. It found:

[T[he family court erred in denying Wife attorney’s fees in Order II. The family court determined Wife was not entitled to attorney’s fees because Husband conceded he had no interest in the marital home and there was not “a great deal of discovery done in this case.” This analysis fails to evaluate any of the factors courts should weigh when determining whether to award attorney’s fees.

The Court of Appeals found numerous justifications to reinstate the $10,500 attorney fee award, noting Husband’s infidelity necessitated this action, his failure to answer discovery necessitated substantial fees (and his being pro se at the time did not excuse his failure to answer discovery), and Wife obtained successful results on alimony and defending Husband’s claim of special equity in her non-marital property.  It further noted the hardship Wife would have in paying all her fees and Husband’s greater ability to pay fees.

One of my own appeals, Rudick v. Rudick, has been under advisement in the Supreme Court for almost 16 months. I expect that decision will provide guidance on when alimony should be awarded.  Assuming Rudick does not substantially modify the law on the rationale for awarding alimony, Cohen establishes two interesting points on alimony.  First, a ten-year marriage is neither so long as to essentially mandate alimony nor so short as to mitigate against it. Second, one can be a supported spouse at the time of the marital breakup despite historically being the primary wage earner.

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