Court of Appeals affirms custody and relocation but reverses Mother’s rehabilitative alimony award

Posted Wednesday, January 24th, 2024 by Gregory Forman
Filed under Alimony/Spousal Support, Child Custody, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys, South Carolina Appellate Decisions, South Carolina Specific

The Court of Appeals slightly modified its opinion on March 20, 2024

The January 24, 2024, Court of Appeals opinion in Gandy v. Gandy affirmed the family court’s award of custody to Mother and affirmed a relocation with the children to New Orleans but reversed her award of rehabilitative alimony.

Gandy stems from a divorce case involving two children and a ten-year marriage.  During the marriage, Mother stayed home with the children.  The parties lived in Myrtle Beach but Mother’s family was from New Orleans.  Custody, relocation, and alimony were all contested.  At trial, Mother presented testimony from a vocational expert who believed she could earn between $23,000 and $47,000 immediately in the New Orleans area but, if she spent three years obtaining a nursing degree, could earn $60,500.  She also noted she was offered a job in New Orleans that paid $60,000 per year and that she and the children could live rent-free at a house behind her parents’ home.

After trial, the family court granted Mother primary custody and awarded her $5,000 per month in child support. It allowed her to relocate to New Orleans.  Based on Father’s stipulated monthly income of $12,008.67 for alimony, it awarded her eight years of $2,000 per month rehabilitative alimony.  Both parties filed Rule 59(e) motions. The family court reduced Mother’s alimony term to seven years but did not otherwise modify its ruling. Father appealed.

The family court affirmed the award of primary physical custody to Mother.  It noted concerns over Father’s alcohol use and concerns the children’s therapist had regarding Father’s anger, especially as it related to his disciplinary style.  The therapist noted Mother better adapts her disciplinary style to what each child needs, without being inappropriately permissive.

The court noted concerns regarding Mother’s efforts to alienate Father from the older child but the family court did “not believe the efforts of Mother were necessarily intended to destroy the relationship with Father and the children.”

Mother’s history as the primary caretaker, her greater attunement to the children’s emotional needs, and her ability to discipline the children more effectively, were reasons the Court of Appeals affirmed the family court’s custody determination.

The Court of Appeals also affirmed the relocation. The Court of Appeals cited with approval the family court’s finding that, “appellate jurisprudence on this issue shows a trend in favor of recognizing the benefits of relocation in a proper case.”  It further cited the family court’s findings that:

[This court] is left with an exceptionally difficult decision to make. All of the experts in this case indicated that it would be better for the children to remain in Horry County with both parents. On the other hand, Mother, as the primary custodial parent, has clearly established that the Latimer[1] factors weigh in favor of her being permitted to relocate with the children to New Orleans. As the Court of Appeals stated in Rice v. Rice, 335 S.C. 449[, 517 S.E.2d 220] (Ct. App. 1999), “forcing a person to live in a particular area encroaches upon the liberty of an individual to live in the place of his or her choice, the court’s authority to prohibit an out-of-state move should be exercised sparingly.” Unfortunately, this Court is unaware of any case law since Latimer where such a prohibition has been upheld.

The family court acknowledged that ”while the children’s relocation with Mother will undoubtedly come at the expense of less time with Father and their paternal grandparents, Mother’s primary custody of the children is in their overall best interests.” It further noted:

Father will be able to maintain his relationship with the children through regular weekend and long weekend visits, the majority of school breaks and holidays, and through daily electronic visitation. Father clearly has the ability, with his parents’ professed support, to afford air travel on a regular basis and Mother shall contribute to the travel costs…

In affirming the relocation, the Court of Appeals noted Mother’s greater support network in New Orleans, whereas Father and his family offered no assistance to aid her in staying in Myrtle Beach. Mother had no ties to Myrtle Beach but could live very close to her parents, and rent free, in New Orleans.  The children could attend the same school in New Orleans, but not in Myrtle Beach.  Mother had better job prospects in New Orleans. The son’s pulmonologist was much closer in New Orleans than in Myrtle Beach.  Accordingly, the Court of Appeals affirmed the relocation.

The Court of Appeals reversed the award of rehabilitative alimony.  It held:

Our precedent is clear that the purpose of rehabilitative alimony is to encourage a dependent spouse to become self-supporting. We can find no evidence in the record supporting the notion that Mother requires seven years to successfully transition back into the workforce. To the contrary, Mother successfully obtained employment, in an area in which she has experience, with full benefits and a starting salary that was significantly higher than her vocational expert estimated. Moreover, Mother’s living expenses in New Orleans are drastically reduced as she is only responsible for paying the utilities associated with the home. Although Mother initially discussed relying on familial support to go back to nursing school full-time for three years, she testified numerous times that she no longer planned to pursue that occupational path after receiving the job offer from the children’s hospital.

Based on the foregoing, we reverse the family court’s award of rehabilitative alimony to Mother, finding this matter involves the rare instance when the former dependent spouse, Mother, has already become sufficiently self-supporting prior to the end of the case. Thus, it would be inequitable to require Father to pay rehabilitative alimony.

Citations omitted.

Gandy continues the recent trend of affirming reasonable relocation requests and presents a rare example of the appellate court reversing an alimony award because alimony was found unnecessary.

[1] Latimer v. Farmer, 360 S.C. 375, 602 S.E.2d 32 (2004).

4 thoughts on Court of Appeals affirms custody and relocation but reverses Mother’s rehabilitative alimony award

  1. Paul Bradley says:

    Seems like she would have been way better off had she decided to not pursue nursing school and accept the fundraiser job after the divorce was final.

    1. Likely would have just prompted an alimony termination case and would have made her relocation claim harder to win.

      1. Paul Bradley says:

        You are probably right. Given the length of marriage, discrepancy of income even with her new job, custody, etc., I still find it hard to believe that she didn’t get any alimony. Are you finding it becoming increasingly more difficult to get alimony of any type?

        1. No. I’m the attorney who lost Rudick v. Rudick.

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