The November 10, 2010 Court of Appeals opinion in Mosley v. Mosley, 390 S.C. 524, 702 S.E.2d 253 (Ct. App. 2010) reversed the family court’s determinations on child support and equitable distribution and remanding the issue of attorney’s fees. There was little very novel about the facts in Mosley but the Court of Appeals opinion does clarify some legal issues. To wit:
Where Wife was paying the day care provider $60.00 per week but sometimes gave her extra money, it was an error for the family court to set child support based on the $390.00 per month that Wife estimated she was paying rather than the $260.00 per month she was obligated to pay.
Where Husband has grossly understated his income and failed to list retirement income in his initial financial declaration, and this financial declaration was used to set his temporary child support obligation, it was not an error for the trial court to increase his child support obligation retroactive to the date of filing. Husband tried to argue that Wife had not sought such retroactive adjustment in her pleadings but the Court noted the “decision to award retroactive child support rests in the sound discretion of the family court.” It is unclear why Husband thought Wife should have plead for retroactive child support with her initial pleading to preserve the right to seek adjustment later on. It is further unclear why Husband thought the courts should allow him to benefit from his deliberately understating his income.
The Court of Appeals found the family court erred in not treating a $77,000 second mortgage taken out by the parties after litigation commenced to be a marital debt. The family court found that Wife did not consent to the second mortgage on the house. However the parties took out this mortgage to pay for construction overruns and to avoid a lien being placed on the property, which Wife acknowledged at the final hearing. Husband admitted Wife initially hesitated to sign the mortgage, but she was afforded well over a week to take her name off the mortgage before the closing. Wife presented no testimony that she signed the mortgage as a result of fraud, accident, or mistake. Wife said she was advised by counsel that she needed to sign the document to protect her rights, but she should not have been responsible because the construction of the house was solely Husband’s project. Based on these facts, it’s hard to understand why the family court thought the second mortgage wasn’t a marital debt, as the debt meets the test of being for the joint benefit of the parties.
Because the Court of Appeals found this second mortgage to be a marital debt, it determined there was no equity in the marital home to be divided. The family court’s order apparently failed to equitably divide the parties’ remaining marital property. The Court of Appeals remanded all equitable distribution issues back to the family court.
Finally because the Court of Appeals modified child support and remanded equitable distribution, it also remanded the family court’s award of $3,880 for Wife’s attorney’s fees.
I find it interesting that the court of appeals required the family court on remand to include a copy of the child support worksheet in the final order, something that probably should be done in every case even in the absence of any direction by the court.
I attach the worksheet being used (if child support is being set by the guidelines) in any of my orders in which child support is being resolved. It makes it much easier to figure out what is a “substantial change of circumstances” in subsequent cases. If support is not being set by the guidelines I indicate the relevant figures that were used in setting child support.
It’s endlessly frustrating to not be able to advise a potential client on whether child support modification is likely because one cannot determine how support was set previously.
All of this over a one year marriage. Interesting. I found the babysitter’s testimony that she was occasionally “blessed” with extra money, which is in essence a tip, I suppose, to be very unusual. I wonder why the sitter kept reducing her weekly rate? Maybe because she knew mom couldn’t pay any more? I don’t think I have ever felt obliged to plead for retroactive child support. I have always believed it is the “law of the land” that child support can be set beginning as of the date of the filing of the complaint. The fact that the husband under reported his income by over $2400 per month (which is more than a lot of my clients actually earn) is far more significant to me on the child support issue.
The construction loan/second mortgage issue is also something that frequently comes up when one spouse thinks the other spouse’s “project” should not be her financial responsibility. This clearly demonstrates our society’s view that marriage is not a partnership, but rather two “me” oriented people seeing what they can get. I think this is the largest problem in our families today. People rush into marriage for all the wrong reasons, without really knowing each other, or simply because they have had a baby. It causes loads of problems. I think this opinion reflects that this couple seemed to have that view. Very sad. It appears that reason and responsiblity flew out the window with both of the Moseleys. Husband should have stepped up and paid what he owed on child support; Wife should have acknowledged the marital debt and that there is no equity in the $400,000 home.