776 S.E.2d 566
S.C.2015Background
- Pedery and McKinney divorced in 2006; the divorce decree required McKinney to pay Pedery $1,500/month permanent periodic alimony.
- In 2009 McKinney moved to terminate or reduce alimony, alleging Pedery was cohabiting with Cynthia Hamby and that McKinney’s income and health had materially worsened.
- Evidence: private investigator testimony that Hamby stayed at Pedery’s house most Wed–Mon each week and left belongings there; Pedery said Hamby maintained a separate residence with her son in Duncan and visited him, taking only an overnight bag when she left.
- Family court terminated alimony, finding continuous cohabitation (not a circumvention of the statute) and denied attorney’s fees to Pedery.
- Court of Appeals affirmed; this Court granted certiorari and reviewed de novo (family court credibility findings still entitled to weight).
Issues
| Issue | Plaintiff's Argument (Pedery) | Defendant's Argument (McKinney) | Held |
|---|---|---|---|
| Whether continued cohabitation under S.C. Code §20-3-130(B) was shown | McKinney failed to prove Hamby and Pedery resided together for 90 consecutive days; Hamby had a separate residence | Hamby effectively lived with Pedery (frequent overnight stays, items at his house); absences were temporary/work-related | Reversed: McKinney did not meet burden; statute requires 90 consecutive days "reside with" under same roof; evidence showed two residences, so no 90 consecutive days |
| Whether an exception applies when separations are to circumvent the 90‑day rule | Pedery argued separations were just job-related and not circumvention | McKinney (and family court) argued absences were job-related but used to circumvent should not matter | Held: No evidence separations were intended to circumvent; exception not met |
| Whether unappealed finding of changed circumstances saves termination under two-issue rule | McKinney argued family court’s evidence of lower income/poor health supports termination independent of cohabitation | Pedery contended family court did not actually base termination on changed circumstances | Held: Family court did not rule that change in circumstances supported termination; remanded so family court can decide reduction/termination on those grounds |
| Whether Pedery should receive attorney’s fees | Pedery sought fees if reversal; argued prevailing party/status and need for findings | McKinney argued no basis shown and family court discretion | Held: Remanded to family court to make required specific findings on attorney’s fees after resolution of alimony on remand |
Key Cases Cited
- Strickland v. Strickland, 375 S.C. 76, 650 S.E.2d 465 (2007) (defines "resides with" as living under same roof at least ninety consecutive days)
- Eason v. Eason, 384 S.C. 473, 682 S.E.2d 804 (2009) (applies Strickland’s strict consecutive‑day test)
- Miles v. Miles, 393 S.C. 111, 711 S.E.2d 880 (2011) (burden to prove changed circumstances by preponderance)
- Semken v. Semken, 379 S.C. 71, 664 S.E.2d 493 (Ct.App.2008) (refuses to equate romantic residence without 90 consecutive days to continuous cohabitation)
- Biggins v. Burdette, 392 S.C. 241, 708 S.E.2d 237 (Ct.App.2011) (upholds strict application where 90 consecutive nights not shown)
- Feldman v. Feldman, 380 S.C. 538, 670 S.E.2d 669 (Ct.App.2008) (denial of termination where evidence did not satisfy Strickland)
- Jones v. Lott, 387 S.C. 339, 692 S.E.2d 900 (2010) (two‑issue rule: unappealed grounds can sustain judgment)
- Griffith v. Griffith, 332 S.C. 630, 506 S.E.2d 526 (Ct.App.1998) (trial court must make specific findings on attorney’s‑fee factors)
- E.D.M. v. T.A.M., 307 S.C. 471, 415 S.E.2d 812 (1992) (factors to consider in awarding attorney’s fees)
- Donahue v. Donahue, 299 S.C. 353, 384 S.E.2d 741 (1989) (attorney’s‑fee determinations are discretionary)