Kelley v. Kelley

HEARN, Judge

(dissenting):

Respectfully, I dissent. In my view, the husband failed to carry his burden of proving a substantial change in circumstances.

Here, the primary change in circumstances since the parties’ divorce was the husband’s voluntary reduction in income. He earned $4,216 per month as an accountant at Michelin at the time of the divorce in 1989. In December 1990, the husband resigned from this position. At the time of the hearing on his request for a reduction, the husband was earning $1,625 per month delivering telephone books, a decrease of over $2,500 per month since the divorce. While the wife’s income has increased since the divorce, the majority admits this increase cannot be used to justify a reduction in alimony since it was contemplated by the parties at the time of the divorce. Brown v. Brown, 278 S.C. 43, 45, 292 S.E.2d 297, 298 (1982). The trial judge found the husband was underemployed based upon his education and experience, but inexplicably decreased the husband’s alimony obligation by one-third. I believe this constituted an error of law amounting to an abuse of discretion.

An alimony award may be modified upon a showing of changed circumstances. S.C.Code Ann. § 20-3-170 (1985); Darden v. Witham, 258 S.C. 380, 387, 188 S.E.2d 776, 778 (1972). The burden of showing by the preponderance of the evidence that a change has occurred, however, is upon the party seeking the modification. Cartee v. Cartee, 295 S.C. 103, 104, 366 S.E.2d 269, 269 (Ct.App.1988) (quoting Boney v. Boney, 289 S.C. 596, 597, 347 S.E.2d 890, 892 (Ct.App.1986)).

In Boney, the husband sought a reduction or termination of alimony due to his termination from his former employment. The trial judge, however, as affirmed by this court, found the husband’s potential earning ability should be based upon his *492capacity for prospective earnings rather than upon his actual earnings, and refused to grant a modification. Id. at 599, 347 S.E.2d at 892. Similarly, Mr. Kelley’s voluntary underemployment should not be the basis for a reduction of alimony when his capacity for earning remains the same as it was in 1989. See Fisher v. Fisher, 319 S.C. 500, 507, 462 S.E.2d 303, 307 (Ct.App.1995) (imputing father’s potential income for determination of child support obligation); Robinson v. Tyson, 319 S.C. 360, 363, 461 S.E.2d 397, 399 (Ct.App.1995) (holding father capable of higher earning potential for determination of child support obligation).

Moreover, with the emancipation of the parties’ two children, the husband was relieved from his child support obligation of $966 per month. This change in circumstances substantially improved the husband’s financial condition. Given this fact and the voluntary nature of his own reduction in income, I believe the trial judge erred in granting the husband a reduction in alimony.

I would reverse.