For the 25 years I have been practicing family law no published South Carolina appellate opinion has approved an award of rehabilitative alimony. While I only began reading unpublished opinions in 2004, I cannot recall any such unpublished opinions. I certainly cannot recall any opinion in which an appellate court reversed an award of permanent periodic alimony and awarded rehabilitative alimony instead.

Thus the May 15, 2019 Court of Appeals opinion in Gillmann v. Gillmann is unprecedented. Further the Gillmann opinion offers only opaque justification for this reversal:

We find the family court erred in awarding Wife permanent periodic alimony, and we award Wife alimony of $2,000 per month for eighteen months from the date of divorce. There was compelling evidence that, given her impressive experience and marketable skills in the banking industry, Wife would be able to find suitable employment at a significant salary within this eighteen month period.

We acknowledge permanent periodic alimony is the preferred form, but based on our review of the facts and considering the statutory factors, we find an alimony award of $2,000 per month to Wife for eighteen months is just and equitable in this case.

Citations omitted.

Perhaps Wife has “impressive experience and marketable skills in the banking industry” that would have enabled her to maintain the marital lifestyle within eighteen months of the divorce–a time period that elapsed on February 9, 2018. However the Gillmann opinion fails to substantiate this claim. Given how unusual it is for the South Carolina appellate courts to approve rehabilitative alimony–and it being even more unusual to reverse an award of permanent periodic alimony to reach this result–a more thorough explanation is certainly justified.

…And if ever a family law appeal justified a petition for certiorari–after the required petition for rehearingGillmann is it.

I rarely blog about unpublished opinions because even when they are interesting, and even when they should have been published, they rarely do anything other than restate legal principals that have been established in published opinions.

However two recent unpublished family court opinions make new law–or would make law if they were published and therefore citable as legal authority: the June 14, 2017 opinion in Lester v. Sanchez and the July 26, 2017 opinion in Murphy v. Murphy. Both should have been published.

Lester was a custody case between the child’s father (Lester) and grandparents (Sanchez). The opinion discusses South Carolina’s recent De Facto Custodian statute, S.C. Code § 63-15-60 (2012), which no published opinion yet interprets. The family court awarded Lester custody and the Sanchezes appealed. One of the arguments they raised on appeal was that they were de facto custodians, and therefore alleged equal custody rights to a natural parent. Under subsection C of the de facto custodian statute, “[t]he family court may grant visitation or custody of a child to the de facto custodian if it finds by clear and convincing evidence that the child’s natural parents are unfit or that other compelling circumstances exist.”

While the family court did not find the Sanchezes to be de facto custodians, the Court of Appeals addressed their claim by holding that the Sanchezes being de facto custodians would not have changed the trial outcome. To reach this conclusion it gave the following interpretation to Subsection C:

This language does not negate the rebuttable presumption that it is in a child’s best interest to be in the custody of a biological parent or suggest de facto custodians are on equal footing with biological parents.

I have litigated a couple of de facto custodian cases and the issue often arises, what “position” does a party hold as it regards custody and visitation once that party establishes that he or she is a de facto custodian. One obvious interpretation of Subsection C is that, had the legislature wanted to place de facto custodians on equal footing with parents, it would not have required “compelling circumstances” to award such folks visitation. This is an interpretation the Lester opinion adopts. Another interpretation of the statute is that one must have assumed a parental role (and that at least one parent must have abdicated a parental role) for someone to become a de facto custodian–so why shouldn’t that person have equal rights to the child?

What “compelling circumstances” must exist to award such persons custody? If the child’s natural parents are fit does the de facto custodian have a strong claim to visitation? If the child’s natural parents are fit does the de facto custodian have an equal right to custody? Subsection C answers none of these questions. Lester answers that last question but does not answer it in a manner that is binding on the family court. Had it been published it would be binding.

Murphy is interesting because it is a rare case in which rehabilitative alimony was ordered. It is even more interesting because it was the Court of Appeals that ordered it, rather than merely approving the family court’s award.

The last published appellate opinion approving rehabilitative alimony was from 1988: Bryan v. Bryan, 296 S.C. 305, 372 S.E.2d 116, 119 (Ct.App. 1988). Murphy involved a ten year marriage that produced no children. It Wife’s second marriage and she was 53 years old at the time of separation. At trial Wife sought, but was not awarded, alimony. This was one of the issues she raised on appeal. The Court of Appeals found Husband’s actual gross monthly income was at least $8,500 and Wife’s monthly income was $2,913 with an ability to earn at least $4,642 per month if anticipated surgery enabled her to recover sufficiently from a knee injury to go back to work as a teacher. The Court of Appeals awarded Wife alimony of $1,250 per month for a maximum duration of sixty months, which it found to be “just and equitable.”

This was a ten-year marriage with an $8,500/$2,913 income disparity and with a potentially disabled Wife. The opinion does not address marital fault but it does not appear the family court or the Court of Appeals found Wife at fault in the breakup of the marriage. Both parties were of an age in which their anticipated future earnings will decrease, but it is hard to see how this might justify rehabilitative alimony. Normally this situation would call for an award of permanent alimony with the possibility of a downward adjustment if Wife was able to go back to teaching.

Is it that this was a second marriage which produced no children that caused the Court of Appeals to award only rehabilitative alimony? Is the ten-year duration of the marriage the reason for this award? The opinion doesn’t explain its reasoning. However, given how rarely rehabilitative alimony is even approved by the appellate courts, the Murphy opinion is noteworthy. The Court of Appeals should have better explained its reasoning and should have published its opinion.

The South Carolina Courts website lists the roster of cases set for oral argument along with a brief description of the issues on appeal. Maybe I’m cynical, but when the December 2014 roster listed Ricigliano v. Ricigliano as a case in which the issue was whether the family court erred in failing to award a husband permanent periodic alimony I figured the South Carolina appellate courts had finally found a case in which they would approve an award of rehabilitative alimony. Experience has shown how ridiculously difficult it is to get alimony for supported husbands from the South Carolina family courts–even when the income disparity between spouses is stark and even when the wife’s fault in the marital breakup is extreme.

The July 15, 2015 Court of Appeals opinion Ricigliano v. Ricigliano413 S.C. 319 775 S.E.2d 701 (Ct. App. 2015), reduces my cynicism a bit–even as it justifies my belief that alimony awards remain the strongest bastion of sexism in the family court. The combination of Wife’s marital fault, the parties’ disparate incomes, and Husband’s sacrifice of his career to further Wife’s career made this an obvious permanent periodic alimony case. That this could even be considered a plausible rehabilitative alimony case (but for the genders of the spouse seeking alimony) is unfathomable.

In Ricigliano, Wife first denied the adultery to Husband. Then she invoked her 5th amendment privilege against self-incrimination when asked about it in discovery. Finally she admitted four adulterous relationships during the marriage, the last of which was ongoing and produced a child.

In 2005, Husband closed a successful business in New York State and relocated to South Carolina to advance Wife’s career with United States Customs and Border Protection. At the time of trial, Wife earned $87,278 a year and was contemplating a move to Washington, DC that would pay her approximately $117,000 a year. Meanwhile Husband struggled to reestablish his business in South Carolina and was earning about $2,100 a month. After trial the family court allowed Wife to relocate with the parties’ daughter to Washington, DC and awarded Husband $500 per month in rehabilitative alimony if he followed Wife to DC. Husband appealed the alimony award along with three other issues.

The Court of Appeals held that this award of rehabilitative alimony was improper and remanded the matter back to the family court for an award of permanent alimony, holding:

[T]he family court clearly erred in awarding Husband rehabilitative alimony. As noted, the law favors the award of permanent periodic alimony, and rehabilitative alimony may be awarded only in exceptional circumstances, when there has been a showing of special circumstances justifying a departure from the normal preference for permanent periodic support. Additionally, the family court failed to consider the appropriate factors in determining whether rehabilitative alimony was proper under the circumstances. Finally, there is no evidence demonstrating Husband will be self-sufficient at the expiration of the ordered payments.

Citations omitted.

In justifying an award of permanent periodic alimony, the Court of Appeals noted:

[T]he preponderance of the evidence supports an award of permanent periodic alimony. In particular, the consideration of the following factors warrants such an award: (1) the duration of the marriage and ages of the parties; (2) the educational background of each spouse; (3) the employment history and earning potential of each spouse; (4) the standard of living established during the marriage; (5) the current and reasonably anticipated earnings of both spouses; and (6) marital misconduct or fault of either or both parties. The parties were married for over twelve years at the time they separated, were married for fifteen years at the time the divorce was finalized, and were in their late thirties at the time of the hearing. Wife is more educated than Husband, with Wife holding a Bachelor’s degree and Husband having only graduated from high school. Wife has maintained steady employment with Customs and was making a substantial income at the time of the hearing with an anticipated promotion in the near future, whereas Husband’s income has fluctuated based upon having to start his business over after relocation for Wife’s career advancement as well as economic conditions that affected his trade. The parties maintained a good standard of living during the marriage. Wife was poised to increase her income with the relocation and custody award of the family court, while Husband was still in the process of trying to turn his business around. Lastly, Wife was completely at fault in the breakup of the marriage, having engaged in numerous affairs during the marriage and ultimately getting pregnant and moving on with her latest paramour, and this misconduct both affected the economic circumstances of the parties and contributed to the breakup of the marriage. As to Husband’s anticipated earnings we note, while his business was in the process of turning around, the only evidence of record was that he still was not making a “decent” income at the time of the hearing and he had not made much money for at least the last two years. The evidence does not support a finding that his anticipated earnings would support him as nearly as is practical, in the same position he enjoyed during the marriage. Additionally, to make such a determination, the family court would have had to engage in speculation, as the record is devoid of evidence of the amount of income Husband is anticipated to receive assuming his business does rebound. Assuming Husband’s business does ultimately improve to the point that he does not need further support, Wife could then bring an action based upon the change in circumstances.

Citations omitted.

Finally the Court of Appeals held that the conditional requirement that Husband relocate in order to receive any alimony was in error. “The only evidence of record concerning the financial impact of relocating on Husband is his and Dr. Gibbs’ testimony that they looked into various alternatives for moving to the D.C. area and it was not economically feasible for Husband to do so. There is nothing to show the trifling amount of rehabilitative alimony the family court awarded would be sufficient to allow Husband to relocate with financial stability.”

Because the Court of Appeals remanded alimony, it also remanded the denial of Husband’s attorney fee request. The Court of Appeals found all but one of Husband’s equitable distribution issues unpreserved because the Rule 59 order did not indicate what issues Husband had raised in his Rule 59 motion and because Husband did not include his Rule 59 motion in the Record on Appeal. It affirmed a 50/50 division of the marital estate despite Husband’s argument that Wife’s fault warranted a 60/40 division. The Court of Appeals finally found Husband had abandoned his request to hold Wife in contempt for allegedly disparaging him in their daughter’s presence.

On August 29, 1988, the Court of Appeals affirmed an award of 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. Clearly the Riciglianos’ situation suggested an award of permanent alimony was the only proper alimony award. However, given the lingering belief in our family court system that men should not look to their wives for financial support, I am not surprised a family court judge didn’t do so. I am pleasantly surprised the Court of Appeals corrected this obvious injustice.

Ricigliano could have been the first published South Carolina opinion in twenty-seven years affirming an award of rehabilitative alimony. Instead it is the first published South Carolina opinion granting a husband permanent periodic alimony.

For reasons that are only marginally explicable, South Carolina attorneys and judges are reluctant to issue orders or enter agreements that combine rehabilitative alimony with permanent alimony.  However, there are common circumstances in which a combined alimony award makes sense.

Permanent periodic alimony is designed to allow a supported spouse to maintain the marital lifestyle in a long-term manner.  Rehabilitative alimony is designed to carry a supported spouse for a period of time while he or she “rehabilitates” and can earn greater income.  However often supported spouses can only partially rehabilitate.  Circumstances might prevent that spouse from earning at his or her full capacity for a period of time (which justifies rehabilitative alimony) but even when that period is over that spouse might not be able to maintain the marital lifestyle (which justifies permanent alimony).  This often arises when the supported spouse cares for young children, which limits career opportunities or makes full-time employment not cost effective.  It also arises when the supported spouse needs time for career development or education.

Typically in this situation the family court orders, or the parties agree, to a strictly permanent alimony award with an understanding that the supported spouse’s “rehabilitation” will be a changed circumstance, allowing the supporting spouse to seek an alimony reduction. There are two problems with this approach.  First, it discourages the rehabilitating spouse from rehabilitating.  Second, it requires a whole subsequent litigation, often mere years after the divorce.

A combined support award limits these problems.  As an example of how this combined support works, consider a stay-at-home mother who worked in nursing until her two children were born.  She needs $5,000.00 a month to maintain the marital lifestyle and will be getting $1,000.00 per month in child support.  The children are pre-school age and she can work part time, making $1,500.00 per month) with minimal child care expenses but will have substantially greater day care expenses, and more difficultly balancing work and child care, if she immediately works full-time.  However, in four years, she can work full-time, making $3,000.00 per month with minimal child care, and be better able to balance work and family.

In a typical scenario, the family court either awards her $2,500.00 per month in permanent alimony (actually its pre-tax equivalent but let’s ignore taxes in this example) or imputes her an earning capacity of $3,000.00 and awards her $1,000.00 per month in permanent alimony.  If, instead, the court awarded (or the parties’ agreed to) $1,500.00 per month in rehabilitative alimony and an additional $1,000.00 per month in permanent alimony, she would have four years to resume working at her full capacity (and would have sufficient support to maintain herself on part-time employment in the interim) with incentive to partially rehabilitate in that period.

When a supported spouse needs time to “rehabilitate” but even rehabilitation won’t enable him or her to maintain the marital lifestyle, a combination of rehabilitative and permanent alimony is often more just and prudent than a set amount of permanent alimony and a subsequent fight over partial rehabilitation.

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.

Most family law attorneys and divorcing parties seem to believe a short marriage suggests an award of rehabilitative rather than permanent alimony.  I’m not so sure.  Next month the Court of Appeals will hear oral argument in the appeal of Karen Allen-Hines v. Franklin Hines.  One of the issues on appeal is whether the family court erred in awarding wife rehabilitative alimony instead of permanent periodic alimony.  If the Court of Appeals affirms it will be the first published opinion affirming rehabilitative alimony over the supported spouse’s objection in over 23 years.

Under South Carolina law, permanent alimony is the preferred form of alimony and rehabilitative alimony requires “special circumstances.” As noted in Jenkins v. Jenkins, 345 S.C. 88, 545 S.E.2d 531, 535 (Ct.App. 2001) (citations omitted):

Although rehabilitative alimony may be an appropriate form of spousal support in some cases, permanent periodic alimony is favored in South Carolina.  If a claim for alimony is well-founded, the law favors the award of permanent periodic alimony.   Rehabilitative alimony may be awarded only upon a showing of special circumstances justifying a departure from the normal preference for permanent periodic support.  The purpose of rehabilitative alimony is to encourage a dependent spouse to become self-supporting after a divorce.  It permits former spouses to develop their own lives free from obligations to each other.  However, it should be approved only in exceptional circumstances, in part, because it seldom suffices to maintain the level of support the dependent spouse enjoyed as an incident to the marriage.

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.

Since then the our appellate courts have repeatedly reversed awards of rehabilitative alimony, often remanding for a determination of permanent alimony.  See Jenkins, supra (reversing rehabilitative alimony award and remanding for award of permanent alimony); Belton v. Belton, 325 S.C. 456, 481 S.E.2d 174, 176 (Ct.App. 1997) (reversing rehabilitative alimony award and remanding for award of permanent alimony); Carroll v. Carroll, 309 S.C. 22, 419 S.E.2d 801, 802 (Ct.App. 1992) (reversing award of nine months of alimony at rate of $800.00 per month because trial court didn’t make “finding[s] of special circumstances” to justify either a lump sum or rehabilitative alimony award); Crawford v. Crawford, 301 S.C. 476, 392 S.E.2d 675, 680 (Ct.App. 1990) (reversing and remanding award of rehabilitative alimony where no evidence that wife would be able to be self-sufficient at the end of the three-year rehabilitation period); Johnson v. Johnson, 296 S.C. 289, 372 S.E.2d 107,114 (Ct.App. 1988) (reversing rehabilitative alimony award and remanding for award of permanent alimony).

During this time, the appellate courts have further rejected supporting spouses’ claims that the court should have only awarded rehabilitative alimony. Canady v. Canady, 296 S.C. 521, 374 S.E.2d 502, 504 (Ct.App. 1988) (rejecting husband’s claim that court should have only awarded rehabilitative alimony in eighteen-year marriage).  In the two reported decisions since 1988 in which the appellate courts have affirmed rehabilitative alimony it was because the supported spouse did not challenge the award. Bowers v. Bowers, 349 S.C. 85, 561 S.E.2d 610, 613 (Ct.App. 2002) (family court awards rehabilitative alimony of $1,000.00 per month for twelve months in six year marriage where husband committed adultery; alimony award not challenged on appeal); C.A.H. v. L.H., 315 S.C. 389, 434 S.E.2d 268, 269 (1993) (affirming “$150.00 per month as rehabilitative alimony for a period of one year” over husband’s objection where “Wife sought ‘relocation alimony’ for the expenses involved in having to quickly move out of the marital home upon her discovery of the sexual abuse.”).

The Bryan opinion is 23 years old and rehabilitative alimony was affirmed, in part, because wife testified at trial “she needed between $2500 and $3000 a month for two years to get her back on her feet,” thus indicating that rehabilitative alimony was sufficient.  The last reported case to reverse an award of permanent alimony and remand for consideration of whether rehabilitative alimony is more appropriate was Woodward v. Woodward, 294 S.C. 210, 363 S.E.2d 413, 417 (Ct.App. 1987).

No doubt there are cases in which a supported spouse needs a few years to obtain further education, get retrained into his or her past profession, or wait for the children to become old enough to resume full-time employment.  In those cases rehabilitative alimony may still be appropriate.  However, I am curious as to whether the Hines appeal will indicate that rehabilitative alimony is appropriate merely because the marriage was short term.  Until some appellate court affirms a rehabilitative alimony award based merely upon the brevity of the marriage, I think the general assumption about short marriages leading to rehabilitative alimony may be mistaken.

Put Mr. Forman’s experience, knowledge, and dedication to your service for any of your South Carolina family law needs.

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