Domestic Relations – Alimony – Retirement – Deferred Income – Attorneys’ Fees

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The plaintiff-Husband retired and sought a reduction in his alimony obligation. In his post-retirement financial statements to the family court, Husband categorized distributions from his former employer as assets. However, evidence discovered by the defendant-Wife’s attorneys showed that Husband had been spending most of the money from the distributions as income and that his income had risen substantially since the original alimony award.

We affirm the family court’s denial of Husband’s motion to reduce his alimony obligation. We also affirm the family court’s order that Husband pay $42,000 of Wife’s attorneys’ fees.

Facts

Discovery revealed that, since retiring, Husband had lived a lavish lifestyle of international and domestic travel and dining out. Husband represented to the court that – after one last trip to Ireland – he would be living a frugal lifestyle.

In contrast, Wife’s multiple sclerosis was progressing such that her physician expected her to need a wheelchair soon, she could not afford all her medications, a friend had been helping her pay her $1,600 monthly rent, and her health insurance premiums were scheduled to increase significantly within a few months of the hearing on Husband’s motion. Wife’s “splurges” consisted of an annual visit to her daughters and going out to eat when her daughters visited her a few times a year, though she did not pay for her daughters’ meals.

Husband was not forthcoming with respect to his finances. After discovery, Wife’s expert categorized Husband’s deferred compensation as income instead of – as Husband had categorized it – assets. Wife’s expert determined, rather than decreasing as Husband claimed, his monthly income had actually increased by $10,000 gross/$9,000 net since the original alimony award.

Before Husband’s request to decrease alimony from $3,000 to $2,050 per month, Wife had a deficiency of $500 a month, which would increase to $1,600 a month when her insurance premium increased.

The family court found Husband had grossly misrepresented his financial situation and denied his motion.

Analysis

The family court did not err in characterizing the distributions Husband received from his deferred stock units and executive retirement accounts as income.

Husband acknowledged he received substantial annual distributions from the deferred stock units and executive retirement account and admitted he did not include these distributions in the calculation of his gross monthly income on his financial statements. He did not challenge that the distributions from these accounts were included as income on his 2017 and 2018 federal tax returns. Of the more than $100,000 in distributions Husband deposited in January and February 2019, Husband admitted to spending almost $60,000 of that amount as of June 2019.

The family court did not err in characterizing Husband’s required annual payouts from deferred compensation benefit assets as income.

Husband argues the annual distributions he received and will continue to receive should not be considered as income in determining whether he is able to meet his alimony obligation. However, evidence showed Husband spent significant amounts of money after his retirement on travel and dining expenses in excess of the monthly expense figure represented to the family court in his June 2019 financial declaration.

The evidence showed Husband was financially able to meet his alimony obligation. The family court’s findings do not support Husband’s assertion that the family court concluded only an exhaustion of his assets would support a reduction in his alimony obligation. Further, under S.C. Code Ann. § 20-3-170(A), Husband may petition the court at any time to reduce his alimony obligation if the circumstances of the parties or the financial ability of the supporting spouse changes.

Husband failed to show a material change in circumstances to justify a reduction in his alimony obligation.

A review of the relevant factors shows that the family court did not err by awarding Wife attorneys’ fees. The amount of the fees was necessitated by Husband’s misrepresentations regarding his financial position. In fact, one of Wife’s attorneys reduced her customary fee, and neither attorney billed for all of their time. The family court did not err in determining Wife was entitled to $42,000 in attorneys’ fees.

Affirmed.

Downing v. Downing (Lawyers Weekly No. 011-049-23, 22 pp.) (Jerry Vinson, J.) Appealed from Charleston County Family Court (Vicki Snelgrove, J.) William Tinkler and Paul Tinkler for appellant; Mark Andrews and Kelley Andrews-Edwards for respondent. South Carolina Court of Appeals