South Carolina Court of Appeals Opinion 2-25-15

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On Wednesday, February 25, 2015, the Court of Appeals handed down a decision in Srivastava v. Srivastava.

In this divorce action, Jane Srivastava (Wife) appeals the family court’s final order. Ms. Srivastava argues that the family court erred by: (1) failing to either impute income to Husband or deviate from the Child Support Guidelines in its child support award, (2) giving credit to Husband for excess child support payments, (3) awarding Husband attorney’s fees, (4) not awarding Wife attorney’s fees, (5) dividing the material property in an equitable manner, (6) finding Husband did not condone Wife’s adultery, (7) denying Wife alimony, and (8) rendering a partial and biased decision.

On the first two issues, the Court held that Wife did not preserve her arguments for appellate review because she failed to raise the issues to the family court, and never filed a Rule 59(e) motion for the family court to consider the issues.

For the award of attorney’s fees, the Court found that the family court erred in awarding $50,000 to Husband as the evidence did not support the attorney’s fees awarded.  The court, in comparing the award of attorney’s fees to Wife’s annual income, found that the $50,000 award represents approximately 90% of Wife’s gross annual income. Moreover, Husband earned a substantially higher annual income than Wife.  The family court generally acknowledged that it considered the four factors in E.D.M. v. T.A.M. in deciding whether to reward attorney’s fees, and then referenced the Glasscock factors in determining how much to award in attorney’s fees. The income-to attorney’s fees ratio made it apparent that the family court did not sufficiently consider each party’s ability to pay, their respective financial conditions, and the effect of the award on each party’s standard of living.  Therefore, the Court found the awarded amount of attorney’s fees to Husband to be excessive and an abuse of discretion. And thus, the Court remanded this issue to the family court for reconsideration.

As well, the Court reversed the family court’s finding that Husband did not condone Wife’s adultery. The Court found that the evidence of continued martial cohabitation and two counseling sessions did not support the family court’s finding of the absence of condonation, on the part of Husband and, therefore, Wife is not barred from receiving alimony. The Court remanded the issue of alimony back to the family court for reconsideration.

Finally, the Court found Wife’s allegation of bias on the part of the family court to be without merit.

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