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THE STATE OF SOUTH CAROLINA

In The Supreme Court

Su Hnyn Sharps, Petitioner

v.

Loyde P. Sharps, Respondent

ON WRIT OF CERTIORARI TO THE COURT OF

APPEALS

Appeal From Berkeley County

Wayne M. Creech, Family Court Judge

Opinion No. 25185

Heard April 6, 2000 - Filed August 14, 2000

REVERSED

Peter D. Deluca, Jr., of Deluca & Maucher, L.L.P., of

Goose Creek, for petitioner.

Constance A. Anastopoulo, of Anastopoulo Law Firm,

of Charleston, for respondent.

CHIEF JUSTICE TOAL: The trial court awarded an increase in

monthly alimony payments to a spouse. The Court of Appeals reversed. We

reverse the Court of Appeals and reinstate the trial court's order.

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FACTUAL/PROCEDURAL BACKGROUND

In 1971, Su Hnyn Sharps ("Wife") married Loyde P. Sharps ("Husband")

in Korea. Shortly after their marriage, the couple relocated to the United States

and had two daughters. After thirteen years of marriage, the couple divorced in

1984. In the divorce decree, the court awarded Wife custody of their two minor

children, child support of $400 a month, the marital home, and the right to

pursue alimony after a period of thirty months.

After the thirty-month period, Wife filed a petition seeking alimony. The

court awarded Wife $100 per month in alimony, increased to $150 a month after

one year. By 1996, both children had reached the age of majority and Husband

was no longer required to make child support payments. In 1997, Wife filed a

petition seeking an increase in the amount of alimony payments claiming a

substantial change in circumstances. Wife alleged the changes in both parties'

incomes, an increase in the cost of living, and the termination of the child

support payments warranted an adjustment in the amount of alimony paid by

Husband.

At trial, Wife asserted the changes she believed warranted an increase in

alimony. Wife testified that she was 60 years old, her monthly wages had

increased by $489.63, her monthly expenses increased by $26.80 (due to an

increase in her mortgage payment), the emancipation of her children had ended

Husband's $400 a month child support obligation, she was unable to meet her

financial obligations resulting in a monthly deficit, and she suffered from

arthritis. She had obtained only the equivalent of an eight grade education in

Korea and she could not write English.

Wife called Husband to testify at trial. Husband testified that he has

worked for the United States Post Office since 1987. Since his divorce from Wife,

Husband has remarried and then divorced a second wife. This second marriage

did not produce any children, and Husband has no alimony responsibilities to

the second wife. Husband testified that his income has increased by $1,497 per

month since the initial award of alimony. The trial court also believed Husband

attempted to deceive it concerning his financial obligations. At the time of the

hearing, Husband was engaged for a third time to a woman with multiple

sclerosis. At the hearing, Husband attempted to disguise his fiancee's car loan

as a second loan on his truck. Also, the trial court found Husband attempted to

include some of his fiancee's medical bills as part of his financial obligations.

Following Wife's presentation of her case, Husband moved for a directed

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verdict. Husband argued that Wife did not prove a substantial change in

circumstances because the termination of child support was an anticipated event

and general inflation along with Husband's increased income were not proper

reasons for an increase in alimony. The trial court denied Husband's motion.

The trial court found a substantial change in circumstances and increased

Husband's monthly alimony obligation from $150 to $475. The court based its

ruling on the increase in Husband's income, a decrease in Husband's expenses,

the increase in Wife's expenses, the thirteen-year length of the marriage, and

their respective ages.

Husband appealed to the Court of Appeals arguing the family court erred

in finding a substantial change in circumstances, erred in considering the

termination of child support as a change in circumstance, erred in applying

section 20-3-130(C)(12)(the existence of other support obligations), and erred by

overlooking Wife's donations to her church as a sign of lack of need for alimony.

The Court of Appeals agreed with Husband on several grounds. The Court of

Appeals held the trial court improperly relied on the termination of child support

to find a change in circumstances. The Court of Appeals also ruled general

inflation and Husband's increase in salary were not sufficient to warrant a

modification of alimony. The Court of Appeals also questioned the accuracy of

Wife's financial declaration. See Sharps v. Sharps, Op. No. 99-LTP-081 (S.C. Ct.

App. filed February 9,1999). Wife has appealed and the issues before the Court

are:

I. Did the Court of Appeals err in finding the termination of child

support is an anticipated event that cannot qualify as a change in

circumstance?

II. Did the Court of Appeals err in overruling the trial court's

determination that significant changes of circumstances existed

warranting an increase in alimony?

LAW/ANALYSIS

I. Termination of Child Support as a Basis for Increasing Alimony

Wife argues the Court of Appeals erred in overruling the trial court's

reliance on the termination of child support as a factor in finding a substantial

change of circumstances. We agree.

Once a court sets the amount of periodic alimony, that amount may be

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modified under the guidelines of S.C. Code Ann. § 20-3-170 (1985). That statute

states in part:

Whenever [a spouse] . . . has been required to make his or her

spouse any periodic payments of alimony and the circumstances of

the parties or the financial ability of the spouse making the periodic

payments shall have changed since the rendition of such judgment,

either party may apply to the court which rendered the judgment for

an order and judgment decreasing or increasing the amount of such

alimony payments or terminating such payments . . .

(emphasis added). In order to justify modification, the changes in circumstances

must be substantial or material. See Thornton v. Thornton, 328 S.C. 96, 492

S.E.2d 86 (1997). Our Court of Appeals has held that: "Generally, changes in

circumstances within the contemplation of the parties at the time the decree was

entered do not provide a basis for modifying either an alimony allowance or a

child support award." Calvert v. Calvert, 287 S. C. 130,139, 336 S.E.2d 884, 889

(Ct. App. 1985).

Using Calvert, courts have refused to adjust alimony where the substantial

change alleged was known by the parties at the time of the decree. For example,

an increase in the wife's income from her re-entry into the workforce after the

divorce has been found not to qualify as a substantial change where her future

employment was contemplated during the divorce proceedings. See Kelley v.

Kelley, 324 S.C. 481, 477 S.E.2d 727 (Ct. App. 1996); Lynn v. Lynn, 290 S.C. 359,

350 S.E.2d 403 (Ct. App. 1986). Also, changes in financial status as a result of

the property division from the divorce are generally in the contemplation of the

parties at the time of the divorce and do not qualify as a substantial change. See

Kielar v. Kielar, 311 S.C. 466, 429 S.E.2d 851(Ct. App. 1993); Kneece v. Kneece,

296 S.C. 28, 370 S.E.2d 288 (Ct. App. 1988). Prior to Calvert, the Court of

Appeals even found the increase in expenses to the husband as a result of the

wife's immediate relocation with her new spouse to Virginia could not be

considered in determining whether a substantial change existed because the

parties contemplated her move during the divorce. See Nelson v. Merritt, 281

S.C. 126, 314 S.E.2d 840 (Ct. App. 1984).

In light of Calvert and subsequent Court of Appeals cases, courts usually

consider only those changes that were unknown to the parties at the time of the

separation decree in determining if a substantial change has occurred

warranting a modification of alimony. The original divorce decree generally

addresses these expected changes. However, there are some future changes

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which may be in contemplation of the parties at the time of the decree but, due

to other considerations, cannot be addressed at that time in the divorce decree.

The termination of child support in the current case is one situation

where, even though the future event was known at the time of the separation,

the trial court could not properly address that expected change in the divorce

decree. Because a court cannot always know what conditions will exist in the

future, it would be arbitrary to automatically increase alimony or child support

in the far distant future based on the happening of anticipated events. See

Condon v. Condon, 280 S.C. 357, 312 S.E.2d 588 (Ct. App. 1984); Shafer v.

Shafer, 283 S.C. 205, 320 S.E.2d 730 (Ct. App. 1984). We are not holding that

all automatic increases in alimony are per se unenforceable. In many cases, such

as the current one, the family court may structure a short period of time that

allows the paying spouse to adjust to the new financial situation of a divorce

before raising the amount of monthly alimony to a set amount. As long as any

such increase does not occur too far into the future, these orders are proper and

enforceable.

Our ruling today does not in anyway affect a party's ability to financially

obligate themselves for the payment of expenses to be incurred in the future.

For example, even when a child is very young, a parent may contractually

obligate himself or herself to pay educational expenses of the child beyond the

age of majority. See Stanaland v. Jamison, 275 S.C. 50, 268 S.E.2d 578 (1980).

Such agreements are enforceable. Also, a family court has the authority to

assign responsibility for college expenses if certain factors are met. See Risinger

v. Risinger, 273 S.C. 36, 253 S.E.2d 652 (1979). Since a modification hearing will

not be used to relitigate issues settled in the original divorce decree, these

assignments of responsibility will be enforced.

In the current matter, Wife does not contend that she did not know about

the eventual emancipation of her children and the subsequent cessation of child

support. However, if the original divorce decree had attempted to increase

Wife's alimony following the emancipation of the children, the amount of that

increase would have been arbitrary and unenforceable in light of the substantial

amount of time between the original decree and the emancipation. Also, had the

original decree in this case granted Wife a greater amount of periodic alimony,

it may have unfairly exceeded Husband's financial ability to pay the child

support, the alimony, and support himself as well.

As a general rule, a court hearing an application for a change in alimony

should look not only to see if the substantial change was contemplated by the

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parties, but most importantly whether the amount of alimony in the original

decree reflects the expectation of that future occurrence. Our decision today

should not be read as a holding that the cessation of child support will always

result in a substantial change warranting an adjustment in alimony. Cases will

exist where the termination of child support will occur so close in time to the

decree setting alimony that the expected cessation of child support will be

reflected in the alimony amount owed to a spouse. Furthermore, there will be

cases where even though the cessation of child support is very remote in time to

the setting of alimony, the termination of child support will not result in a

substantial change warranting an adjustment of a spouse's alimony.

In the current case, the original amount of alimony awarded to Wife

clearly reflected the consideration that Husband would also be paying child

support. By requiring Wife to wait thirty months before she could pursue

alimony, as well as setting the one-year period of reduced alimony, the family

court further revealed a concern about Husband's ability to afford paying both

child support and alimony while also supporting himself. Although the

emancipation of the children was an expected event, the original divorce decree

would not have been able to make a future adjustment in alimony in favor of

Wife because doing so would have required substantial speculation as to future

conditions. As a result, the family court properly relied on the termination of

child support in its overall analysis of whether a substantial change had taken

place.

II. Substantial Change Warranting an Increase in Alimony

Wife argues the Court of Appeals erred in finding she failed to prove a

substantial change in circumstances warranting the increase in alimony

payments. We agree.

Questions concerning alimony rest with the sound discretion of the trial

court, whose conclusions will not be disturbed absent a showing of abuse of

discretion. Bannen v. Bannen, 286 S.C. 24, 331 S.E.2d 379 (Ct. App. 1985). An

abuse of discretion occurs when the court is controlled by some error of law or

where the order, based upon findings of fact, is without evidentiary support.

McKnight v. McKnight, 283 S.C. 540, 324 S.E.2d 91(Ct. App. 1984). However,

an appellate court reviewing a family court order may find facts in accordance

with its own view of the preponderance of the evidence. Kelley v. Kelley, 324 S. C.

481, 477 S.E.2d. 727 (Ct. App. 1996). We disagree with the Court of Appeals'

conclusion that Husband's increase in income was the only changed

circumstance. Wife also experienced a dramatic increase in the deficit between

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her income and expenses. Furthermore, the cessation of child support had a

significant impact on the financial circumstances of Wife. By relying on all of

these factors, the trial court had the authority to adjust the amount of alimony

paid by Husband.

CONCLUSION

For the foregoing reasons, we REVERSE the opinion of the Court of

Appeals and reinstate the trial court's order increasing the amount of alimony.

MOORE, WALLER, BURNETT and PILEICONES, JJ., concur.

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