Grumbos v. Grumbos

393 S.C. 33

710 S.E.2d 76

Demetra Kerhoulas GRUMBOS, Respondent/Appellant,

v.George Spyros GRUMBOS, Appellant/Respondent.

No. 4825.

Court of Appeals of South Carolina.

Heard Feb. 8, 2011.Decided April 27, 2011.Rehearing Denied June 23, 2011.

O.W. Bannister, of Greenville, for Appellant–Respondent.Robert M. Rosenfeld, of Greenville, for Respondent–Appellant.WILLIAMS, J.

On appeal, George Grumbos (Husband) contests the family court's decision to impute certain income to Husband in setting Demetra Grumbos' (Wife) entitlement to both temporary and permanent alimony. Husband also argues the family court failed to properly consider the requisite statutory factors in awarding Wife permanent periodic alimony and failed to consider certain marital debts when it divided the marital estate. On cross-appeal, Wife claims the family court erred in finding Husband's overpayment of temporary alimony negated his requirement to pay Wife attorney's fees and costs in the final order. We affirm in part, reverse in part, and remand.

FACTS

On September 21, 2006, Wife filed a complaint, seeking among other things, separate support and maintenance, custody of the parties' minor children, child support, and alimony. In response, the family court issued a temporary order on December 18, 2006, wherein the court found Husband earned $7,000 per month and Wife earned $550 per month. Based upon this finding, the family court awarded Wife $2,500 per month in temporary alimony. Three months later, Husband was found in contempt for failing to pay alimony and child support. On March 26, 2007, Husband filed a motion to reduce these obligations, which the family court denied.

At the final hearing on September 23–24, 2008, the family court permitted Wife to amend her complaint to seek a divorce on the ground of one year's continuous separation. During the two-day trial, the family court heard testimony from the parties and their witnesses. It also received into evidence numerous financial documents pertaining to the parties' income as well as evidence regarding the assets and debts of the marital estate.

The following evidence relevant to this appeal was adduced at the final hearing. Husband and Wife married on January 21, 1996, in Greenville, South Carolina. When the parties married, Husband was thirty-one years old and Wife was thirty-three years old. This was the parties' first marriage, and two minor children were born of the marriage. The parties were married for approximately ten years before they separated on September 21, 2006.

Prior to the parties' marriage, Wife earned a Bachelor of Economics degree from Clemson University, but she had not been employed outside the home in a full-time capacity since the birth of their first child in July 1998. Husband graduated from high school and took college courses from Greenville Technical College but never graduated. Husband, however, worked at his parents' restaurant from an early age and had extensive experience in hosting, serving, and cooking, as well as operating and managing his parents' restaurant. At the time of trial, Husband earned $10 per hour working as a host at his brother-in-law's restaurant. Similarly, Wife earned $10 per hour working part-time as a hostess at a local restaurant. At the time of the divorce, both parties were in good health, despite a noncancerous tumor being removed from Husband's abdomen in 2006.

In its final order, the family court found both parties were underemployed. The court found Wife had the ability to work full-time at her present job and earn a gross monthly wage of $1,733, but because Wife earned $2,000 per month in the past, the family court imputed this amount to Wife as her gross monthly wage.

In determining Husband's gross monthly income, the family court noted the discrepancy between Husband's W–2 form from the family restaurant and his testimony and financial declarations. According to Husband's testimony, he worked forty hours per week; however, a review of his W–2 forms demonstrated Husband's gross annual income reflected a workweek of no more than twenty hours.¹ The family court noted Wife documented Husband's payment of almost $54,000 in household expenses in the preceding twelve months, which computed to monthly expenses averaging approximately $4,500. Because of the discrepancies in Husband's documentation ² and the family court's determination that Husband's testimony lacked credibility, it imputed $4,500 per month to Husband as his gross monthly income.

Also at issue during trial were the income and debt from Husband's family business ventures. Husband contended that while he held varying ownership interests in three family-held limited liability corporations,³ the vast majority of the income from these businesses was a result of one-time events. Despite Husband's argument, the family court found based on the K–1 forms filed with the tax returns for these businesses, Husband earned $92,902 in 2004, $69,400 in 2005, and $80,865 in 2006.

In assessing the parties' debts, the family court considered three promissory notes in the amounts of $80,000, $23,000, and $6,000, which were executed by Husband on May 1, 2006, to his brother, his brother-in-law, and his parents, respectively. The court found each of these debts was nonmarital and noted Wife denied any knowledge of these notes or the underlying debts securing the notes.

Based on these findings, the family court awarded the parties a divorce on the ground of one year's continuous separation and granted Wife permanent periodic alimony in the amount of $630 per month. In dividing the parties' assets and debts, the family court found all debts pertaining to the family-held LLCs, including the three promissory notes, were nonmarital property. The family court awarded Wife attorney's fees; however, in doing so, it found Husband overpaid temporary alimony in excess of two years. Consequently, the family court retroactively reimbursed Husband for this overpayment by crediting Husband the balance of Wife's attorney's fees. Husband appealed, and Wife cross-appealed.

STANDARD OF REVIEW

In appeals from the family court, this court has the authority to find facts in accordance with our view of the preponderance of the evidence. Greene v. Greene, 351 S.C. 329, 335, 569 S.E.2d 393, 397 (Ct.App.2002). This broad scope of review does not require us to disregard the findings of the family court. Id. Neither are we required to ignore the fact that the family court, who saw and heard the witnesses, was in a better position to evaluate their credibility and assign comparative weight to their testimony. Id.

LAW/ANALYSIS

I. Husband's Appeal

A. Imputing Income to Husband

a. Temporary Alimony

Husband claims the family court erred in initially imputing $7,000 per month to Husband as income for purposes of awarding Wife $2,500 per month in temporary alimony.⁴ We disagree.

The allowance of temporary separate maintenance and support, or temporary alimony, is a matter largely addressed to the discretion of the family court whose ruling will not be disturbed on appeal absent an abuse of discretion. Armaly v. Armaly, 274 S.C. 560, 562, 266 S.E.2d 68, 69 (1980).

In awarding Wife $2,500 in temporary alimony, the family court found Husband earned $7,000 per month and Wife earned $550 per month. This finding was based on the financial declarations of the parties, their affidavits, and their respective tax returns. While the family court may only have been privy to that limited evidence based on the timing and nature of the temporary hearing, we discern no abuse in the family court's award of $2,500 per month in temporary alimony.

As noted by the family court in its final order, credibility and veracity of the parties were key factors in this case. Husband claimed he earned only $825 per month at the temporary hearing, yet his financial declaration submitted before the final hearing reflected a gross monthly income of $1,733. Husband failed to explain how his income doubled, despite his concession that he was working for the same wage with the same hours for the same employer. We find the family court was in the best position to question the accuracy of Husband's initial claim that he earned only $825 per month and thus was within its discretion to accordingly weigh Husband's testimony in its decision to impute additional income to him. See Marchant v. Marchant, 390 S.C. 1, 8, 699 S.E.2d 708, 712 (Ct.App.2010) (finding question of husband's credibility was a function of the family court judge who was in the best position to determine whether husband properly stated his income for purposes of calculating alimony and child support).

Husband admits he received over $243,000 in revenue from the family-owned LLCs between 2004 and 2006, but he contends this income was nonrecurring, and as such, it was not a proper basis on which to award Wife temporary alimony. Even if we accept Husband's argument that this revenue was nonrecurring, Husband earned $80,856 alone in 2006 (or $6,738 per month) from his restaurant employment and LLCs, which provides ample basis for the family court's decision to impute $7,000 per month to Husband as income. Additionally, Husband never contested Wife's calculation of $4,100 per month in household expenses. Because Wife only earned $550 per month at the time of the temporary hearing, we discern no error in the family court's efforts to maintain the status quo by requiring Husband to pay Wife $2,500 per month in temporary alimony. See Cannarella v. Cannarella, 275 S.C. 516, 517–18, 273 S.E.2d 529, 529–30 (1980) (finding wife was entitled to temporary alimony considering her income, necessities, and husband's means, particularly when wife earned $372 per month as a waitress, husband earned $7,000 per month from his restaurant business, and wife's monthly living expenses were $1,900).

b. Permanent Alimony

Husband also claims the family court erred in imputing $1,467 per month to...