The South Carolina Courts website lists the roster of cases set for oral argument along with a brief description of the issues on appeal. Maybe I’m cynical, but when the December 2014 roster listed Ricigliano v. Ricigliano as a case in which the issue was whether the family court erred in failing to award a husband permanent periodic alimony I figured the South Carolina appellate courts had finally found a case in which they would approve an award of rehabilitative alimony. Experience has shown how ridiculously difficult it is to get alimony for supported husbands from the South Carolina family courts–even when the income disparity between spouses is stark and even when the wife’s fault in the marital breakup is extreme.
The July 15, 2015 Court of Appeals opinion Ricigliano v. Ricigliano, 413 S.C. 319 775 S.E.2d 701 (Ct. App. 2015), reduces my cynicism a bit–even as it justifies my belief that alimony awards remain the strongest bastion of sexism in the family court. The combination of Wife’s marital fault, the parties’ disparate incomes, and Husband’s sacrifice of his career to further Wife’s career made this an obvious permanent periodic alimony case. That this could even be considered a plausible rehabilitative alimony case (but for the genders of the spouse seeking alimony) is unfathomable.
In Ricigliano, Wife first denied the adultery to Husband. Then she invoked her 5th amendment privilege against self-incrimination when asked about it in discovery. Finally she admitted four adulterous relationships during the marriage, the last of which was ongoing and produced a child.
In 2005, Husband closed a successful business in New York State and relocated to South Carolina to advance Wife’s career with United States Customs and Border Protection. At the time of trial, Wife earned $87,278 a year and was contemplating a move to Washington, DC that would pay her approximately $117,000 a year. Meanwhile Husband struggled to reestablish his business in South Carolina and was earning about $2,100 a month. After trial the family court allowed Wife to relocate with the parties’ daughter to Washington, DC and awarded Husband $500 per month in rehabilitative alimony if he followed Wife to DC. Husband appealed the alimony award along with three other issues.
The Court of Appeals held that this award of rehabilitative alimony was improper and remanded the matter back to the family court for an award of permanent alimony, holding:
[T]he family court clearly erred in awarding Husband rehabilitative alimony. As noted, the law favors the award of permanent periodic alimony, and rehabilitative alimony may be awarded only in exceptional circumstances, when there has been a showing of special circumstances justifying a departure from the normal preference for permanent periodic support. Additionally, the family court failed to consider the appropriate factors in determining whether rehabilitative alimony was proper under the circumstances. Finally, there is no evidence demonstrating Husband will be self-sufficient at the expiration of the ordered payments.
Citations omitted.
In justifying an award of permanent periodic alimony, the Court of Appeals noted:
[T]he preponderance of the evidence supports an award of permanent periodic alimony. In particular, the consideration of the following factors warrants such an award: (1) the duration of the marriage and ages of the parties; (2) the educational background of each spouse; (3) the employment history and earning potential of each spouse; (4) the standard of living established during the marriage; (5) the current and reasonably anticipated earnings of both spouses; and (6) marital misconduct or fault of either or both parties. The parties were married for over twelve years at the time they separated, were married for fifteen years at the time the divorce was finalized, and were in their late thirties at the time of the hearing. Wife is more educated than Husband, with Wife holding a Bachelor’s degree and Husband having only graduated from high school. Wife has maintained steady employment with Customs and was making a substantial income at the time of the hearing with an anticipated promotion in the near future, whereas Husband’s income has fluctuated based upon having to start his business over after relocation for Wife’s career advancement as well as economic conditions that affected his trade. The parties maintained a good standard of living during the marriage. Wife was poised to increase her income with the relocation and custody award of the family court, while Husband was still in the process of trying to turn his business around. Lastly, Wife was completely at fault in the breakup of the marriage, having engaged in numerous affairs during the marriage and ultimately getting pregnant and moving on with her latest paramour, and this misconduct both affected the economic circumstances of the parties and contributed to the breakup of the marriage. As to Husband’s anticipated earnings we note, while his business was in the process of turning around, the only evidence of record was that he still was not making a “decent” income at the time of the hearing and he had not made much money for at least the last two years. The evidence does not support a finding that his anticipated earnings would support him as nearly as is practical, in the same position he enjoyed during the marriage. Additionally, to make such a determination, the family court would have had to engage in speculation, as the record is devoid of evidence of the amount of income Husband is anticipated to receive assuming his business does rebound. Assuming Husband’s business does ultimately improve to the point that he does not need further support, Wife could then bring an action based upon the change in circumstances.
Citations omitted.
Finally the Court of Appeals held that the conditional requirement that Husband relocate in order to receive any alimony was in error. “The only evidence of record concerning the financial impact of relocating on Husband is his and Dr. Gibbs’ testimony that they looked into various alternatives for moving to the D.C. area and it was not economically feasible for Husband to do so. There is nothing to show the trifling amount of rehabilitative alimony the family court awarded would be sufficient to allow Husband to relocate with financial stability.”
Because the Court of Appeals remanded alimony, it also remanded the denial of Husband’s attorney fee request. The Court of Appeals found all but one of Husband’s equitable distribution issues unpreserved because the Rule 59 order did not indicate what issues Husband had raised in his Rule 59 motion and because Husband did not include his Rule 59 motion in the Record on Appeal. It affirmed a 50/50 division of the marital estate despite Husband’s argument that Wife’s fault warranted a 60/40 division. The Court of Appeals finally found Husband had abandoned his request to hold Wife in contempt for allegedly disparaging him in their daughter’s presence.
On August 29, 1988, the Court of Appeals affirmed an award of rehabilitative alimony over wife’s objection in Bryan v. Bryan, 296 S.C. 305, 372 S.E.2d 116, 119 (Ct.App. 1988). This is the last reported South Carolina appellate opinion to do so. Clearly the Riciglianos’ situation suggested an award of permanent alimony was the only proper alimony award. However, given the lingering belief in our family court system that men should not look to their wives for financial support, I am not surprised a family court judge didn’t do so. I am pleasantly surprised the Court of Appeals corrected this obvious injustice.
Ricigliano could have been the first published South Carolina opinion in twenty-seven years affirming an award of rehabilitative alimony. Instead it is the first published South Carolina opinion granting a husband permanent periodic alimony.
In discussing the sexism that (you believe) is inherent in the Family Court, you have previously blogged about how it’s harder for fathers to get custody than it is for mothers to get custody. Do you still hold that opinion? I have gotten custody for fathers at several temporary hearings recently and wonder if you see the same trend of a more critical look at a parent’s behavior rather than their gender. I realize we are in different parts of the state and that things may be very different from county to county.
I don’t attribute more mothers getting custody to sexism. My blog explained the three reasons mothers more often get custody.
The difficulties I have in getting husbands alimony I attribute to sexism.
What this opinion only hints at is that this case centered around custody. Mr. Ricigliano was the primary caretaker of the child during the marriage. Mother was diagnosed Narcassistic personality disorder and was alienating the child during the litigation. With an established week on week off temporary time sharing arrangement the trial court allowed mother to relocate with the child out of state at the end of trial, compartmentalizing Fathers time with the child to two weekends a month, one month in DC and the other in SC (which mother has frequently withheld). The cost of appealing the child related issues were impossible for Father. It is too bad, as an issue the Court App clearly understood was somehow missed at trial- this was a marriage where the typical gender roles were reversed. I must agree with Greg’s earlier blogs.
My first thought was a practical one and one that Theresa mentions above. How in the world does a couple making $80k – $100k per year (wife) and $24k per year (husband), afford to go through contested trial, and then appeal? Are the lawyers getting paid? Do these people really hate each other enough to go into significant debt to fight? Surely this is a case that could have been settled with a good mediator!
This case got expensive because, while no man in South Carolina likes to be told he should pay alimony, no woman in South Carolina believes she should be required to. Too many family court judges agree with these women. I applaud Theresa and David for handling this trial and appeal.
In the case of my husband’s ex-wife there is no way to avoid court. They have been divorced over 5 years and she files a motion every few months. She has filed 5 contempt charges in the past 12 months and the bill our for legal fees is over $25k. The last motion just went to the final hearing and we are waiting on the judge’s ruling. If the judge rules in our favor (as I suspect as she lied no less than 5 times to the judge), I am confident the ruling will be appealed. It is unfair to expect men to support their ex-wives with permanent alimony. I do agree with rehabilitative alimony to allow the ex-wife to obtain the necessary skills to be self-supporting.
Even felons get paroled…