Biggins v. Burdette
392 S.C. 241
S.C. Ct. App.2011Background
- Biggins sought to terminate alimony to Burdette based on her relationship with a paramour; family court denied termination and awarded Burdette about $126,797 in attorney's fees.
- Biggins and Burdette divorced in 2004 after a 27-year marriage on grounds of the husband's adultery.
- Burdette began a sexual relationship with a man in June 2005; they did not intend or live together, though they spent nights together on multiple occasions.
- Private investigators observed Burdette and the boyfriend leaving Burdette's home on several mornings; boyfriend maintained his own residence.
- The family court found no continual cohabitation under § 20-3-150 and held the alimony termination was not warranted; the court also awarded Burdette attorney's fees.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether continued cohabitation existed under § 20-3-150 | Biggins argues Burdette and Boyfriend cohabitated under the statute. | Burdette contends they did not live under the same roof for ninety consecutive days. | No continued cohabitation; 90 days with same roof not shown. |
| Whether the alimony termination was proper given cohabitation findings | Biggins asserts alimony should terminate due to cohabitation. | Burdette asserts no ninety-day cohabitation under the statute. | Term not terminated; findings support denial. |
| Whether the attorney's fees award to Burdette was proper and supported by Glasscock factors | Biggins argues the fee award was improper or excessive. | Burdette contends the award reasonably reflects the Glasscock factors. | Fee award affirmed; no abuse of discretion. |
| Whether the issue of Glasscock factors was properly preserved for review | Biggins argues the court failed to make or preserve specific Glasscock-factor findings. | Burdette contends the issue was not preserved for review. | Not preserved for review; merits not reached. |
Key Cases Cited
- Strickland v. Strickland, 375 S.C. 76 (2007) (defines 'continued cohabitation' as ninety consecutive days under the same roof)
- Terwilliger v. Terwilliger, 298 S.C. 144 (Ct.App. 1989) (credibility determinations are the trial judge's function)
- Eason v. Eason, 384 S.C. 473 (2009) (two to four weeks cohabitation does not satisfy ninety-day requirement)
- Fiddie v. Fiddie, 384 S.C. 120 (Ct.App. 2009) (cohabitation not established when residence is alternated with other arrangements)
- Feldman v. Feldman, 380 S.C. 538 (Ct.App. 2008) (no ninety-day cohabitation; corroborating testimony shows separate living)
- Semken v. Semken, 379 S.C. 71 (Ct.App. 2008) (reversed termination where no ninety-day cohabitation was proven)
- Glasscock v. Glasscock, 304 S.C. 158 (1991) (six factors to determine attorney's fees: nature, time, counsel, contingency, results, customary fees)