South Carolina Lawyers Weekly
Although the plaintiff-Wife has more education and steadier employment than the defendant-Husband, since (1) Husband’s adultery was the impetus behind this litigation, (2) Wife has significant student loans to repay, and (3) Wife’s support during the marriage allowed Husband to reach a seniority level in the International Longshoremen’s Association that now allows him to earn significantly more than Wife, the family court erred when it denied Wife’s claim for alimony.
We reverse the family court’s order denying Wife alimony and attorney’s fees.
The family court originally awarded Wife both alimony and attorney’s fees. However, on Husband’s motion for reconsideration, the family court declined to award Wife either alimony or attorney’s fees.
Alimony
Wife supported Husband while he accrued the International Longshoremen’s Association (ILA) seniority that now enables him to earn more money than her.
In denying Wife alimony, the family court considered only the disposition of the parties’ assets, focusing primarily on Wife’s award of the home as nonmarital property, the small mortgage on the home, and the fact that Wife’s expenses would be minimal after she paid off the mortgage. The court focusing its alimony analysis on these few considerations was an error as it failed to adequately consider all of the mandatory, statutory factors in determining Wife was ineligible for alimony.
Under our evaluation of the statutory factors, we find Wife has a need for alimony. The parties’ ten-year marriage was not so short as to overly affect our alimony determination. Furthermore, even though Husband was injured at work several times throughout the marriage and was laid off several times following the 2008 recession, his income is much higher than Wife’s after accruing seniority with the ILA.
Turning to the parties’ financial declarations, Wife shows a financial need for alimony as her monthly expenses far exceed her monthly net income. While the family court relied heavily on the fact that Wife received the marital home and would have a decrease in expenses when the relatively small mortgage was paid off, the $407.28 decrease in expenses associated with the mortgage still leaves Wife with a monthly deficit of $503.51. Wife also has a principal balance of $207,039.86 in student loans.
On the other hand, given his seniority with the ILA, Husband has the ability to pay Wife alimony. In 2017, he reported a gross income of $80,942. His financial declaration reflects a monthly net income of $4,103 and total monthly expenses of $4,544 that primarily consists of rent and his $1,100 temporary support to Wife. While Husband’s financial declaration shows a deficit, it quickly changes to a surplus when the $650 alimony obligation in the family court’s original order is substituted for the $1,100 temporary support obligation. Moreover, Husband shares expenses with a live-in girlfriend.
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 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. Therefore, we reverse and reinstate Husband’s alimony obligation.
Attorney’s Fees
Because Wife would not have incurred litigation expenses but for Husband’s adultery, she was burdened with more fees because of Husband’s uncooperativeness, Husband has a better ability to pay a portion of Wife’s attorney’s fees, and the fee is less likely to affect Husband’s standard of living, we find Wife is entitled to Husband paying a portion of her attorney’s fees. Therefore, we reverse on this issue and reinstate Wife’s attorney’s fees.
Reversed.
Cohen v. Cohen (Lawyers Weekly No. 011-045-22, 8 pp.) (Bruce Williams, C.J.) Appealed from Charleston County Family Court (Michèle Patrão Forsyth, J.) William Clifford for appellant; Alan David Toporek for respondent. S.C. App.
