Campbell v. McPherson

Ness, Justice

(dissenting) :

The majority opinion completely disregards the evidence, undisputed in the record, that the wife’s dividend income exceeds $15,000.00 and that she has recently purchased a shopping center for over $106,000.00, as opposed to a gross income of the husband of $22,000.00, with a net income, after taxes, of approximately $15,600.00.

The amount to be awarded for child support is within the sound discretion of the trial judge and will not be disturbed absent an abuse of discretion. Smith v. Smith, 264 S. C. 624, 216 S. E. (2d) 541 (1975). Facts to be considered include the needs of the child, financial ability of the husband to pay, the wife’s health, age and general condition, and the wife’s income and earning capacity. Graham v. Graham, 253 S. C. 486, 171 S. E. (2d) 704 (1970); 27B C. J. S. Divorce § 322, page 696; 24 Am. Jur. (2d), Divorce and Separation, § 848, page 962.

The increase in the cost of supporting a child may under certain circumstances justify an increase in child support where the change is substantial and the father has the ability to pay. To support the increase desired by the appellant it must be shown not only that the reasonable, not extravagant, needs of the child have increased but also that the respondent has the ability to pay a larger sum. I agree with the trial court that the evidence does not justify an increase in child support payments. 89 A. L. R. (2d) 7, § 21, page 61.

This Court has consistently held, “the parties’ relative financial condition is a valid consideration. Murdock v. Murdock, 243 S. C. 218, 133 S. E. (2d) 323 (1963). It is also proper to consider the husband’s necessities and living expenses. Graham v. Graham, 253 S. C. 486, 171 S. E. (2d) *450704 (1970).” Spence v. Spence, 260 S. C. 526, 529, 197 S. E. (2d) 683 (1973).

In addition to regularly making his support payment of $1,500.00 per year, as ordered by the divorce decree, respondent has paid premiums of $409.00 annually on a $25,000.00 life insurance policy payable to the appellant as trustee for the benefit of the minor child. He has defrayed the child’s medical expenses including a major medical insurance policy for her benefit.

The trial court also found as a fact that the husband’s support of the child constituted between 15 and 20 per cent of his total disposable income, and that many items claimed by the appellant could not be considered necessities of the child.1 We held in Smith v. Smith, supra, that orthodontic treatment of the child was not a necessity, and that in determining the proper amount for child support the court should consider not only the need of the child but “also the ability of the father to pay and all other surrounding circumstances. Lowe v. Lowe, 256 S. C. 243, 182 S. E. (2d) 75.” Smith v. Smith, supra, 264 S. C. at 628, 216 S. E. (2d) at 543. (Emphasis added.)

Former Mr. Chief Justice Moss, speaking for the Court, in Porter v. Porter, 246 S. C. 332, 339, 143 S. E. (2d) 619, 623 (1965), stated:

“Where the findings of fact are by the Trial Judge himself, who had an opportunity of not only considering the testimony but also of viewing the parties and the witnesses and considering their attitudes in adjudging the veracity of their testimony, as in this case, makes for a still stronger application of the rule, that his findings will not be disturbed unless it appears that such are without evidentiary support or against the clear preponderance of the evidence.” See also Beasley v. Beasley, 264 S. C. 611, 613, 216 S. E. (2d) 535 (1975); *451Fender v. Fender, 256 S. C. 399, 406, 182 S. E. (2d) 755 (1971).

Under all of the circumstances, taking into particular consideration the income of the parties and the necessary living expenses of the child, I am of the opinion that the record does not disclose a manifest abuse of discretion and I would affirm the trial court, with the exception that I would remand to take further testimony as to whether psychiatric care is justified.

The claimed necessities included $20.00 per month for guinea pigs and fish, another item for plants and pots, $3.00 per week for books, and $10.00 per week for spending money. Additionally, domestic help for the daughter in the amount of $900.00 annually is listed even though the appellant is unemployed and has a Masters Degree.