THE STATE OF SOUTH CAROLINA 

In The Court of Appeals 

Richard W. Downing, Appellant, 

v. 

Rebecca B. Downing, Respondent. 

Appellate Case No. 2019-001980 

Appeal From Charleston County 

Vicki J. Snelgrove, Family Court Judge 

Opinion No. 6002 

Heard September 15, 2022 – Filed July 26, 2023 

AFFIRMED 

William P. Tinkler and Paul E. Tinkler, both of Tinkler 

Law Firm, LLC, of Charleston, for Appellant. 

Mark O. Andrews and Kelley D. Andrews-Edwards, both 

of Andrews Mediation and Law Firm, PA, of Mount 

Pleasant, for Respondent. 

VINSON, J.: Richard W. Downing (Husband) appeals the family court's order 

denying his request for a reduction in his alimony obligation and awarding 

attorney's fees to Rebecca B. Downing (Wife). On appeal, Husband argues the 

family court (1) failed to analyze the factors enumerated in section 20-3-170(B) of 
 

the South Carolina Code (2014),1 (2) improperly characterized his deferred 

compensation benefit as income, (3) erred in finding there had not been a material 

change in circumstances, and (4) erred in awarding Wife $42,000 in attorney's fees. 

We affirm. 

FACTS AND PROCEDURAL HISTORY 

Husband and Wife (collectively, the parties) were married in 1982 and separated in 

January 2010. In March 2010, Wife filed a summons and complaint. The family 

court approved a final settlement agreement (the Agreement) in 2011,2

 which 

provided Husband would pay Wife $3,500 per month in permanent periodic 

alimony and $60,000 in lump sum alimony. Husband was further obligated to 

equally share his pension income with Wife. Husband's 2010 financial declaration 

reflected $13,050 in gross monthly income; $6,898 in monthly expenses; $311,000 

in assets; and over $485,000 in debt. The circumstances upon which the 

Agreement was based are set forth below. 

In May 2018, Husband filed an action for divorce and a reduction in alimony. 

Husband alleged a material change in circumstances owing to his retirement in 

March 2018 and resulting reduction in his monthly income from $13,000 to 

$4,000. Husband's June 2018 financial declaration reflected $4,000 in gross 

monthly income; $4,495 in monthly expenses; more than $800,000 in assets; and 

$130,000 in debt. After a hearing, the family court issued a temporary order 

finding Husband failed to make a prima facia case warranting a temporary 

modification in his alimony obligation and ordered Husband contribute $5,000 to 

Wife's temporary attorney's fees. 

Wife filed a motion to compel discovery in September 2018 seeking certain 

financial documentation from Husband, some dating as far back as seven years. At 

the motion hearing, Wife alleged Husband had not been forthright regarding his 

"financial landscape" and failed to provide Wife with documentation in response to 

her requests to produce and interrogatories. Among the information Wife sought 

were financial records pertaining to Husband's monthly expenses and his Regions 

Bank account, which Wife discovered after issuing subpoenas to financial 

1 Section 20-3-170(B) enumerates the factors the family court must consider when 

evaluating whether there has been a material change of circumstances for the 

purpose of modifying alimony upon the supporting spouse's retirement. 

2

 The copy of the Agreement included in the record on appeal is missing the 

next-to-last page. 
institutions to determine where Husband held accounts. The family court found 

several requests for production of documents were outstanding but limited the 

disclosure of some financial information, including credit card statements, to the 

three-year period immediately preceding Husband's action. 

The family court held a final hearing on June 17 and 18, 2019. Husband testified 

that during the marriage, Wife was a traditional homemaker, earning income only 

from modeling early in their marriage and later, teaching piano lessons. He 

recalled Wife was diagnosed with multiple sclerosis in 2003 or 2004—before their 

separation—and confirmed he had witnessed a progression in her symptoms. 

Husband entered his 2017 and 2018 federal and state tax returns into evidence 

without objection and identified his June 2019 financial declaration. He explained 

that at the time of the parties' separation in 2010, they were "essential[ly] 

bankrupt." Husband testified that under the Agreement, he agreed to assume 

certain debts, both to individuals and to various financial institutions. He 

confirmed the Agreement obligated him to pay Wife $3,500 in monthly alimony 

and half his monthly pension, which totaled an additional $500 a month. 

Husband testified his position with his employer was eliminated in April 2017 but 

he secured another position within the company at that time; however, this position 

was eliminated in March 2018 and he retired. Husband was sixty-seven at the time 

of his retirement, and he received a severance package as a result of his 

termination. Based on a statement from the Social Security Administration, 

Husband confirmed his taxed Medicare earnings for 2010 totaled $216,000 and by 

2016, his earnings had reached a high point of $279,598. He indicated his earnings 

dropped to $83,000 in 2018 as a result of his retirement. Husband testified he did 

not search for another job outside of his company when his position was eliminated 

in March 2018 but indicated he was prepared to work until about the time of the 

hearing. He believed his age, health, and eyesight problems would have prevented 

him from finding employment. Husband elaborated that he suffered "eye issues" 

for a number of years, which made tasks such as reading and driving in adverse 

conditions difficult. To support this testimony, Husband entered into evidence 

medical information dating from 2014 regarding his eyesight issues, including a 

retinal detachment in one eye. 

Husband explained his financial strategy from 2010 forward was to pay down his 

debts and defer as much income into his retirement accounts as possible. Husband 

testified he lived with a roommate in Atlanta, Georgia, with whom he split rent and 

expenses, until two years before the hearing. At the time of the final hearing, he 

lived in a one-bedroom apartment. He stated he had cut his expenses by cancelling 
 

his cable subscription and country club membership, and he indicated he intended 

to move out of Atlanta to reduce his expenses further. However, Husband 

acknowledged he had spent more money than usual in the year preceding the 

hearing due to his retirement. Husband testified he took "a series of small trips" in 

2018 to Los Angeles, California to attend the Rose Bowl; Aruba; Iceland; 

Copenhagen, Denmark; and Spain. Husband maintained this reflected the majority 

of his travel in that year and his other travels included driving to destinations such 

as Florida, where he could stay with friends free of charge. 

In reviewing his June 2019 financial declaration, Husband confirmed he included 

the following as monthly income: $645 in pension benefits; $2,700 in social 

security benefits; $77 from Prudential insurance; and $1,704 in interest.3 He 

explained the interest figure reflected the total principal balance of his retirement 

accounts charged at an interest rate of 3.5%. Husband testified his retirement 

accounts were comprised of deferred stock units in his former employer that he 

categorized as deferred income, an IRA account,4

 and a Wells Fargo Executive 

Retirement Account. He determined the value of the deferred stock units by 

multiplying the number of units he held by the stock price of the day. The total 

pretax value of these retirement accounts was $676,219. 

As to the deferred stock units, Husband explained that after receiving a 

distribution, the stock units went into an account from which he could then sell the 

stock after paying a commission. Husband testified he received annual 

distributions from his deferred stock and executive retirement account in February. 

He explained he would receive two more annual deferred stock distributions and 

eight additional annual distributions from his executive retirement account. 

Husband indicated he purchased a $10,000 United States Treasury Bill with 

proceeds from the sale of his deferred stock units and he intended to use the return 

from that investment later in the year to pay his debts. He stated his financial 

3

 A notation on Husband's June 2019 financial declaration stated the $1,704 

interest figure represented "imputed income derived from 3.5% of net worth 

($584,077)."

4

 Husband's June 2018 financial declaration does not list the Janney Montgomery 

Scott IRA account, which was valued at $160,324 on his June 2019 financial 

declaration. His June 2018 financial declaration lists two 401(k) accounts, with a 

total value of $152,755, that are not listed on his June 2019 financial declaration. 

In his March 2019 deposition, Husband testified he transferred one of these 401(k) 

accounts into the IRA account; however, his deposition testimony was unclear as 

to whether the second 401(k) account was also transferred into the IRA account. 
strategy since 2011 was "first and foremost" to ensure he could meet all of his 

monthly obligations to Wife, and he then prioritized significantly reducing his debt 

obligations and ensuring he could meet his own financial needs. He believed that a 

reduction in his monthly alimony obligation to $2,050 a month was "fair and 

sustainable." 

On cross-examination, Husband confirmed he received distributions valued at 

approximately $40,000 in both 2018 and 2019 from his executive retirement 

account. Husband could not recall the amount of the February 2019 distribution 

from his deferred stock units. He acknowledged he deposited $56,000 into one of 

his bank accounts in February 2018. Husband testified those funds were related to 

a stock distribution that he sold from his deferred stock account. He explained the 

$34,816 stock value listed under the company name "Wells Fargo Share Owner's 

Stock" in the nonretirement securities section on his June 2018 financial 

declaration reflected the value of the distributed stock he had not sold at the time 

he completed his financial declaration. When asked where he indicated on his 

financial declarations that he had received distributions from his deferred stock and 

executive retirement accounts, Husband responded it was reflected in the value of 

his retirement assets. He testified the income he received in regular salary before 

his retirement in March 2018 and $26,000 severance payment were reflected in his 

bank account balances on his June 2018 financial declaration. 

Husband confirmed that both his June 2018 and June 2019 financial declarations 

reflected monthly expenses totaling approximately $4,500 and he intended that to 

be a truthful representation. Husband later testified this amount reflected what he 

anticipated spending in the future and his expenses since his retirement were not 

typical. Wife then questioned Husband about his direct testimony related to his 

travel the previous year. She specifically questioned Husband about charges made 

to three of his credit card accounts that appeared in his monthly statements from 

March 2018 to April 2019. Husband confirmed charges related to the trips he 

testified to during his direct testimony as well as charges related to additional trips 

within the United States to attend social and sporting events and other international 

travel. The charges reflected substantial amounts spent on airfare and dining. In 

addition to air travel, Husband testified he drove long distances on several 

occasions, including to the Florida Keys and New York, in an attempt to reduce his 

travel expenses. He testified he also planned to travel to Ireland in July 2019 to 

attend the Open Championship. Husband maintained his monthly expenditures 

would match those reflected in his financial declarations after this trip. 
Husband acknowledged he had less than $100,000 in assets at the time the parties 

entered into the Agreement in 2011 and the total value of his assets had increased 

by almost $850,000 since that time. He also acknowledged he had paid down a 

significant portion of his debt, almost $400,000. Husband agreed this showed a 

$1.2 million increase to his net worth. 

Husband confirmed his 2018 federal tax return showed he had $279,491 in gross 

income that year, which he agreed that divided monthly throughout the year, 

totaled $23,000 per month. When asked why he indicated on his financial 

declaration his monthly income was only $4,400, Husband responded, "So those 

have already been distributed, so I didn't count them as monthly income." He 

explained the distributions had been captured as assets on his financial declaration. 

Husband confirmed that based on his 2018 and 2019 financial declarations, his 

monthly expenses were $2,400 less than his stated monthly expenses in 2011. 

Husband confirmed he deposited $48,442 into his bank accounts in January 2019 

and an additional $81,977 in February 2019. He testified he put some of those 

funds into high-interest savings accounts and purchased a United States Treasury 

Bill for $9,875. Husband admitted to withdrawing funds from the savings 

accounts to fund his debts. He further admitted to using around $60,000 of the 

approximate $100,000 he deposited into his bank accounts in January and February 

2019 to pay debts. Later, Husband could not recall what he did with significant 

amounts of cash totaling over $15,000 he received from checks issued by his 

employer as part of a stock distribution. 

Wife then questioned Husband about check deposits made into his Regions Bank 

account from a company named "Potter Concrete" in Texas. Husband did not 

disagree with Wife's assertion that the funds deposited since 2011 totaled almost 

$450,000. Husband stated the funds were connected with his facilitation of the 

sale of badges to the Masters Tournament to friends. On redirect, Husband 

testified his arrangement with Potter Concrete to procure badges for the Masters 

Tournament predated the Agreement by almost thirty years. He maintained he did 

not earn any income from these transactions. Husband explained he would cash 

part of the checks to pay the badge sellers and would retain some funds across 

multiple accounts for later payment; he also stated he did not like to carry large 

amounts of cash as explanation for why he only partially cashed these checks. 

Husband admitted to facilitating ticket sales to another sporting event but 

maintained he did not make a profit off of the transaction. 

Husband confirmed he felt a strong obligation to support Wife. He stated he was 

unaware Wife would have a monthly deficiency of over $3,000 if his alimony 
obligation was reduced to $2,050. Husband maintained he did not have any hidden 

sources of income. He stated the record of how much money he was able to save 

was evidence of his frugal lifestyle. Husband expressed his desire for Wife to 

move to Washington state to live with her brothers in an attempt to cut expenses 

and to have someone nearby to support her. He believed it would be less 

expensive for her to live in Washington than in Mount Pleasant, South Carolina. 

Husband acknowledged Wife did not have the financial means to pay his attorney's 

fees or her own attorney's fees. 

Kelly Simon, a forensic accountant, testified she used Husband's 2018 federal tax 

return to create a mock financial declaration document. She explained she 

differentiated Husband's regular wages and deferred compensation income but that 

both were included as income. Simon also included Husband's pension and 

annuity income, as well as his social security income and dividend interest for a 

total gross monthly income of $23,666. Simon explained that she created a 

comparison of Husband's 2010 financial declaration and her mock financial 

declaration and it reflected an almost $10,000 increase in Husband's gross monthly 

income from 2010 to 2018. She explained the difference in Husband's net income 

for that time period showed an increase of almost $9,000. As to the check deposits 

from Potter Concrete, Simon testified the total amount deposited since 2011 was 

more than $457,000. She testified that over the fourteen-month period from 

February 1, 2018 to March 31, 2019, Husband deposited $374,885 into his bank 

accounts. Simon further testified Husband had credit card charges totaling $62,259 

from January 2018 to March 2019, and he regularly paid his credit card balances in 

full. On cross-examination, Simon confirmed she did not review any of Husband's 

older credit card statements. She acknowledged she could not determine whether 

Husband provided cash payments to the individuals selling their Masters 

Tournament badges. 

On the second day of trial, Wife published a letter from her physician regarding her 

multiple sclerosis diagnosis. The letter stated Wife suffered from primary 

progressive multiple sclerosis and her condition would continue to worsen over 

time. Her physician noted Wife suffered from muscle weakness and fatigue and 

she had to make many adjustments to accommodate her condition, including 

having her groceries delivered to her home and using a wagon to get the groceries 

inside her home, which still caused great difficulty. The letter also described 

Wife's difficulty in preparing meals and washing dishes and completing everyday 

tasks such as picking items up with both hands. Her physician expected Wife to be 

wheelchair-bound in the future and would require assistance with routine activities 

such as bathing, dressing, and meal preparation. The letter stated Wife had been 
unable to work for many years due to her diagnosis and cautioned Wife to limit her 

piano teaching to avoid exhausting herself. Finally, Wife's physician stated Wife 

would require regular medical care and in the future, specialized medical 

equipment. 

Wife testified she was fifty-nine years old. She stated she had lived at her current 

residence since 2012. Wife explained the house met her medical needs and the 

landlord had made further improvements to accommodate her changing needs. 

She stated her neighbors helped her with everyday tasks and checked in on her. 

Wife noted she had many friends that lived near her. She testified she made $325 

per month teaching piano lessons. In describing her daily routine, Wife testified it 

took her two-and-a-half to three hours to get ready in the morning if leaving the 

house. She described herself as a "homebody" but noted she occasionally had 

friends and family visit her or she would go to dinner or drinks with friends. Wife 

explained she splurged approximately three times a year on dinner when her 

daughters visited but noted she did not pay for their meals. She testified she 

typically only traveled to visit her daughters once a year due to cost. 

Wife testified that in two months' time, her medical insurance premium would 

increase significantly to over $1,000 per month. She stated her monthly rent 

totaled $1,600 and food and household supplies cost her approximately $400 per 

month. Wife noted she tried to eat inexpensively by purchasing basic food items 

such as beans and rice. She indicated her largest expenses were related to her 

medical needs, including a recent increase in her prescription drug prices. Wife 

testified she was unable to afford all of the medication prescribed to treat her 

multiple sclerosis. She confirmed she had a current deficiency of $500 a month 

that would increase to $1,600 a month when her insurance premium increased. 

Wife acknowledged she had significant personal debts owed to a friend as well as 

outstanding fees and costs of $41,938 owed to her attorneys. She stated she did not 

have the ability to pay these debts or the $4,500 in fees associated with Simon's 

financial services. She confirmed that pursuant to the fee agreement with her 

attorneys, one of her attorneys, Kelly Andrews-Edwards, reduced her hourly rate 

from $400 to $175 for representation in this matter. Wife testified a friend gifted 

her $3,000 annually to cover a prior increase in her rent. She indicated there was 

no assurance she would continue to receive these funds and her friend had recently 

informed her that her financial circumstances had changed. Wife confirmed she 

had a Roth IRA account valued at $17,000 but if Husband's alimony obligation 

was reduced to $2,050, her monthly deficiency would increase to $3,600 and those 

funds would be quickly depleted. 
On cross-examination, Husband entered a financial analysis he had prepared for 

the temporary hearing into evidence. The analysis included imputed income at 4% 

of the value of his nonmarital assets and showed figures reflecting his net income 

when his alimony obligation was set at 50%, 40%, and 33% of his net income. 

During redirect, the family court told the parties it understood Husband's position 

that his assets would be depleted at the current level of alimony and Wife's position 

that Husband misrepresented his income in his financial declarations as it pertained 

to the distributions from his deferred compensation and executive retirement 

accounts. 

In its August 2019 order denying Husband's request for a reduction in his alimony 

obligation, the family court stated it "considered Husband's recent retirement, 

examined the circumstances which existed at the time Husband's alimony 

obligation was established in 2011, examined Husband's current financial 

circumstances, and examined Wife's needs and Husband's present ability to meet 

those needs." The family court also stated it considered and gave appropriate 

weight to the factors enumerated in section 20-3-130(C) of the South Carolina 

Code (2014). It stated Husband was sixty-eight years old and in reasonably good 

health at the time of his retirement. The family court also stated Husband's 

employer "closed down" the division Husband worked in, which led to his 

retirement. The court then noted, 

Retirement by a supporting spouse is grounds to warrant 

a hearing to evaluate whether there has been a change of 

financial circumstances sufficient to modify an existing 

alimony obligation. To justify modification or 

termination of alimony, the moving party must establish 

that there has been a substantial or material change of 

financial circumstances. It is well established that even 

where a supporting spouse['s] salary or income has been 

reduced by retirement, the [family c]ourt must examine 

the totality of the supporting spouse's financial 

circumstances such as the availability of assets which 

could be utilized to pay support. The [family c]ourt must 

assess the overall ability of the supporting spouse to pay 

the [c]ourt ordered alimony. 

In its analysis, the family court made specific factual findings pertaining to 

Husband's 2018 taxable income, deposits of funds into Husband's checking 

accounts, distributions from Husband's retirement assets, Husband's assets and 
liabilities at the time alimony was established, Husband's financial needs at the 

time alimony was established and his current financial needs, Husband's actual 

spending at the time of filing the alimony reduction action, Wife's medical needs 

and ability to earn income, and Wife's current expenses and assets. Specifically, 

the family court found Husband's income in 2018 totaled $283,987, or $23,666 per 

month. It determined Husband "grossly understated" his income by approximately 

$19,000 per month in his sworn June 2018 financial declaration. The family court 

concluded Husband's income was substantially greater than his income when his 

alimony obligation was established by the Agreement. It further found Husband's 

bank account records showed deposits totaling over $450,000 related to his selling 

Masters Tournament badges. The family court concluded "a great deal of cash 

[was] unaccounted for in these transactions" and Husband's testimony that he 

merely facilitated the sale of badges was not credible. Without determining a 

specific monetary amount, the family court concluded "Husband had income from 

sources other than those disclosed by [him]." 

The family court further found Husband's 2019 year-to-date income substantially 

exceeded the amount he represented on his sworn June 2019 financial declaration. 

It concluded Husband received $83,000 in net deferred compensation income, 

representing more than $100,000 in gross income. The family court stated 

Husband failed to disclose this income or future streams of compensation from his 

former employer on his financial declarations. It concluded Husband presented no 

credible evidence showing his retirement materially reduced his income, as 

compared to his income when alimony was established, or that his retirement 

impacted his ability to meet his $3,500 per month alimony obligation. The family 

court rejected Husband's assertion that the majority of the funds disbursed to him 

in 2018 and 2019 were retirement pay and not income. It found Husband was 

required to disclose all retirement income on the first page of his financial 

declarations, which he failed to do. The family court noted Husband would receive 

deferred compensation income "in substantial but yet to be determined amounts" 

through 2027. The family court found Husband's financial declarations did not 

show or explain that Husband had received, and would continue to receive, income 

from his deferred compensation plans. It stated, "Husband portrayed a very 

misleading financial picture to . . . Wife and to the [family c]ourt." 

The family court compared Husband's financial situation in 2011 to his current 

financial situation, finding it had substantially improved. The family court found 

Husband's monthly expenses had decreased since 2011; however, it determined 

Husband had "grossly misrepresented his spending related to travel, incidentals, 

and entertainment on his sworn financial declarations." It noted, "Husband was 
enjoying a lavish, if not extravagant, lifestyle." The family court determined the 

testimony and evidence presented at trial did not support Husband's sworn 

testimony that he had modified his lifestyle and was living frugally. It specifically 

noted Husband's extensive travel and dining expenditures. The court determined 

Husband's spending evidenced his ability to pay alimony at the established amount. 

The family court concluded clear and overwhelming evidence showed Husband's 

overall financial circumstances had improved and he failed to demonstrate an 

inability to continue to pay Wife $3,500 in monthly alimony. It further noted 

Wife's "clear and profound need for continued alimony from Husband" due to her 

worsening medical condition and inability to earn significant income—Wife had 

no earned income at the time alimony was established in 2011. The family court 

determined Wife had a "very modest lifestyle" and was $400 a month short of 

meeting her monthly expenses, which would increase by $1,000 per month 

beginning September 2019 as a result of an increase in her health insurance 

premium. It noted Wife had virtually no assets from which she could draw to meet 

any financial shortfall and concluded that "[w]ithout the alimony payment from 

Husband, Wife would find herself unable to pay for her essential expenses and she 

would be in a truly destitute situation." 

The family court also awarded Wife $42,000 in attorney's fees and costs. It found 

Husband made "gross misrepresentations . . . of virtually every material aspect of 

his financial circumstances." Specifically, the family court found Husband failed 

to provide Wife with sufficient responses to her requests for documentation, which 

necessitated Wife filing a motion to compel discovery. It determined that through 

the efforts of Wife's counsel, "Wife established that Husband had grossly 

understated his income and his spending." The family court acknowledged that 

"[a]t first blush," Wife's attorney's fees seemed more than what would be expected; 

however, it found that "in light of the gross misrepresentations by Husband, of 

virtually every material aspect of his financial circumstances . . . the efforts put 

forth by Wife's [counsel] were both reasonable and necessary." The family court 

concluded that without the efforts of Wife's counsel in uncovering evidence of 

Husband's financial circumstances, it "would have had only . . . Husband's 

misleading financial information upon which to base its decision." The family 

court further found the hourly rates charged by Wife's counsel were reasonable in 

light of their experience and standing in the legal community and that the time 

spent working on the case was necessary. It determined "Husband ha[d] 

demonstrated little if any financial restraint as evidenced by his lavish spending 

during the pendency of this action and his planned trip to Ireland in July 2019. 

Husband ha[d] the financial ability to contribute to the attorney's fees incurred by 
 

Wife." The family court ordered Husband to pay the outstanding balance of Wife's 

attorney's fees totaling $42,000.5 

Husband filed a motion for a new trial, or in the alternative, to alter or amend and 

for stay of the final order pursuant to Rules 59 and 62(b) of the South Carolina 

Rules of Civil Procedure. Husband requested that the family court receive 

additional evidence, including Husband's 2011 and 2019 deposition transcripts. He 

argued his 2011 deposition showed the Masters Tournament badge scheme was 

discussed with Wife's counsel before the Agreement was finalized and therefore 

Wife was "collaterally estopped from claiming [he] made money from this source." 

Husband further argued the family court misapprehended facts relating to the 

calculation of his income. Finally, Husband argued Wife's attorney's fees were 

unreasonable and much of the work Wife's counsel billed for was unnecessary. 

At the outset of the motion hearing, the family court stated it had read the 

depositions submitted by Husband. Wife argued the depositions were not properly 

before the court. During the hearing, the parties addressed Husband's arguments 

relating to his 2011 and 2019 depositions, how his deferred income should be 

treated, the representations Husband made on his financial declaration, and the 

family court's alleged failure to address the elements under section 20-3-170(B) in 

its final order. Husband also noted Wife would be eligible to receive social 

security income in two years' time, and the family court responded it could not 

predict future events and Husband would need to file a motion at that time to 

reevaluate his alimony obligation. The family court denied Husband's motions and 

lifted the stay on the final order. It stated it had considered all of Husband's written 

submissions in reaching its decision. This appeal followed. 

ISSUES ON APPEAL 

1. Did the family court err by failing to analyze Husband's request for a reduction 

of alimony under the factors enumerated in section 20-3-170(B)? 

2. Did the family court improperly characterize Husband's required annual payouts 

from his deferred compensation benefit assets as income when these assets made 

up the bulk of his post retirement net worth and were insufficient to last his 

lifetime if he continued to make alimony payments at the existing level? 

5

 Wife's attorney's fees totaled $75,444, which was reduced by $33,500 to account 

for Husband's $5,000 payment under the temporary order and a $28,500 payment 

made by Wife's friend. 
 

 

3. Did the family court err in finding that there had not been a material change of 

circumstances when Husband was mandatorily retired at the age of sixty-seven, 

had developed problems with his vision, was no longer earning a salary, and his 

assets were insufficient to last his lifetime if he continued to make alimony 

payments at the existing level? 

4. Did the family court err by awarding Wife $42,000 in attorney's fees? 

STANDARD OF REVIEW 

"The family court is a court of equity." Lewis v. Lewis, 392 S.C. 381, 386, 709 

S.E.2d 650, 652 (2011). "Appellate courts review family court matters de novo, 

with the exceptions of evidentiary and procedural rulings." Stone v. Thompson, 

428 S.C. 79, 91, 833 S.E.2d 266, 272 (2019). "[O]ur review of a family court's 

order on whether to modify support awards is de novo." Miles v. Miles, 393 S.C. 

111, 117, 711 S.E.2d 880, 883 (2011). "[T]his court may find facts in accordance 

with its own view of the preponderance of the evidence." Weller v. Weller, 434 

S.C. 530, 537, 863 S.E.2d 835, 838 (Ct. App. 2021). Although this court reviews 

the family court's findings de novo, we are not required to ignore the fact that the 

family court, which saw and heard the witnesses, was in a better position to 

evaluate their credibility and assign comparative weight to their testimony. Lewis, 

392 S.C. at 385, 709 S.E.2d at 652-53. "The appellant maintains the burden of 

convincing the appellate court that the family court's findings were made in error 

or were unsubstantiated by the evidence." Weller, 434 S.C. at 538, 863 S.E.2d at 

838. 

LAW AND ANALYSIS 

I. Consideration of Factors Under Section 20-3-170(B) 

Husband argues the family court "ignored" section 20-3-170(B) in its order 

denying alimony modification by failing to mention the statute or analyzing the 

enumerated factors. We disagree. 

Retirement by the supporting spouse is sufficient grounds 

to warrant a hearing, if so moved by a party, to evaluate 

whether there has been a change of circumstances for 

alimony. The court shall consider the following factors: 
 

(1) whether retirement was contemplated when 

alimony was awarded; 

(2) the age of the supporting spouse; 

(3) the health of the supporting spouse; 

(4) whether the retirement is mandatory or 

voluntary; 

(5) whether retirement would result in a decrease 

in the supporting spouse's income; and 

(6) any other factors the court sees fit. 

§ 20-3-170(B). 

We find the family court considered all the factors enumerated in section 

20-3-170(B) in its order denying Husband's request for a reduction in his alimony 

obligation. Although the family court did not specifically cite to section 

20-3-170(B) in its order, it addressed all of the factors in its analysis. The family 

court specifically acknowledged the circumstances that led to Husband's retirement 

and his age and health. The court examined Husband's income in great detail, 

noted Husband participated in a "systematic plan to defer a portion of his earnings" 

subsequent to 2011, and referenced Husband's testimony "that he deferred income 

in order to continue to pay his obligations, with the exception of alimony, into his 

retirement."6

 Accordingly, we find the family court considered the mandated 

factors under section 20-3-170(B) and affirm as to this issue. 

II. Deferred Compensation Distributions 

Husband contends the only "new" income he earned after his retirement came from 

his pension and social security payments and "yields from funds and securities he 

managed to save (or defer) over the years he was employed." He asserts his 

"previously earned assets"—the deferred compensation accounts—were not 

monthly income for purposes of evaluating his alimony obligation, but rather, were 

"annual conversions of pre-tax savings to post-tax savings." Husband avers this 

deferred income vested before his retirement and was "tantamount to retirement 

6

 Husband contests the veracity of this factual finding; however, this demonstrates 

the family court considered the first enumerated factor under section 20-3-170(B). 
 

savings." He argues that if this court accepts Wife's reasoning, he would be unable 

to modify his alimony until 2027, when his scheduled payments from his deferred 

compensation end and when his assets would be nearly depleted. We disagree. 

We hold the family court did not err in characterizing the distributions Husband 

received from his deferred stock units and executive retirement accounts as 

income.7

 At the final hearing, Husband testified his financial strategy from 2010 

onward was to defer as much income into retirement accounts as possible. His 

retirement assets included deferred stock units in his former employer, an IRA 

account, and an executive retirement account, which held both stock and cash 

assets. Husband acknowledged he received substantial annual distributions from 

the deferred stock units and executive retirement account and admitted he did not 

include these distributions in the calculation of his gross monthly income on his 

financial statements. He did not challenge that the distributions from these 

accounts were included as income on his 2017 and 2018 federal tax returns. Of the 

more than $100,000 in distributions Husband deposited in January and February 

2019, Husband admitted to spending almost $60,000 of that amount as of June 

2019. 

Husband's June 2018 and June 2019 financial declarations listed his deferred stock 

units and executive account as both nonmarital assets and voluntary retirement 

accounts. In the nonmarital property section, the accounts were noted as a source 

of income to Husband. The value of these two accounts decreased by over 

$137,000 from 2018 to 2019; however, these distributions were not captured as 

income, Husband merely decreased the value of the assets without explaining how 

the entire value of the distributions from these accounts were spent or reinvested. 

Furthermore, Husband testified the asset values for these accounts included on his 

financial declaration were based on the stock's pretax value on a given day. This 

valuation failed to reflect the known actual value of the stock assets distributed to 

Husband in 2018 and 2019. Moreover, although Husband included imputed 

income derived from 3.5% of his net worth on his June 2019 financial declaration 

in his calculation of gross monthly income, this figure was inadequate to capture 

the actual value of the funds Husband was receiving, and admittedly spending, 

7

 We note Husband failed to cite to any South Carolina case law in support of his 

argument that these distributions represented previously earned assets and should 

not be considered monthly income for purposes of reviewing his alimony 

obligation. See Weller, 434 S.C. at 538, 863 S.E.2d at 838 ("The appellant 

maintains the burden of convincing the appellate court that the family court's 

findings were made in error or were unsubstantiated by the evidence."). 
from his deferred compensation accounts. In addition, Simon's testimony 

supported the family court's characterization of the distributions as income. Simon 

testified Husband's 2018 gross monthly income was $23,666, which included 

Husband's deferred compensation distributions. Based on the foregoing, we hold 

the family court did not err in characterizing Husband's required annual payouts 

from deferred compensation benefit assets as income. See Weller, 434 S.C. at 537, 

863 S.E.2d at 838 ("[T]his court may find facts in accordance with its own view of 

the preponderance of the evidence."). 

Furthermore, in determining whether to make an award of alimony, the family 

court must consider the nonmarital properties of the parties. S.C. Code Ann. 

§ 20-3-130(C)(8) (2014). Husband categorized his deferred compensation 

accounts as nonmarital property on his June 2018 and June 2019 financial 

declarations. Accordingly, we find the family court's consideration of the listed 

value of these accounts and distributions under these accounts was proper. 

As to Husband's argument the family court implicitly found the exhaustion of 

assets was a necessary statutory element for a reduction in alimony upon 

retirement, we find this argument is without merit. Section 20-3-170(B) merely 

provides that retirement by the supporting spouse is sufficient grounds to warrant a 

hearing under section 20-3-170(A) and sets forth specific factors the family court 

must consider in determining whether there has been a change in circumstances. 

As discussed in more detail below, here, the family court determined there had not 

been a material change in circumstances warranting a reduction in Husband's 

alimony obligation. In reaching this conclusion, the court not only considered the 

mandatory factors set forth under section 20-3-170(B) but it also considered 

Husband's financial ability to pay his alimony obligation. Husband argues the 

annual distributions he received and will continue to receive should not be 

considered as income in determining whether he is able to meet his alimony 

obligation. However, testimony and evidence showed Husband spent significant 

amounts of money after his retirement on travel and dining expenses in excess of 

the monthly expense figure represented to the family court in his June 2019 

financial declaration. At the time of the final hearing, this evidence showed 

Husband was financially able to meet his alimony obligation. Accordingly, we 

find the family court's findings do not support Husband's assertion that the family 

court concluded only an exhaustion of his assets would support a reduction in his 

alimony obligation. Further, under section 20-3-170(A), Husband may petition the 

court at any time to reduce his alimony obligation if the circumstances of the 

parties or the financial ability of the supporting spouse changes. Although the 

family court determined that at the time of the final hearing there had not been a 
 

material change in circumstance that supported reducing Husband's alimony 

obligation, this does not foreclose Husband's ability to petition the court at a later 

date to consider whether his or Wife's financial situation has changed to warrant a 

future reduction in his obligation. Accordingly, we reject this argument. 

III. Material Change of Circumstance 

Husband argues the family court erred in failing to determine an appropriate 

alimony obligation. Specifically, Husband contends his assets would be depleted 

in twelve years if his alimony obligation remains unchanged. We disagree. 

"The change in circumstances must be substantial or material in order to justify a 

modification of the previous alimony obligation." Thornton v. Thornton, 328 S.C. 

96, 111, 492 S.E.2d 86, 94 (1997). "Further, the change in circumstances must be 

unanticipated." Penny v. Green, 357 S.C. 583, 589, 594 S.E.2d 171, 174 (Ct. App. 

2004). "The party seeking modification has the burden to show by a 

preponderance of the evidence that the unforeseen change has occurred." Butler v. 

Butler, 385 S.C. 328, 336, 684 S.E.2d 191, 195 (Ct. App. 2009) (quoting Kelley v. 

Kelley, 324 S.C. 481, 486, 477 S.E.2d 727, 729 (Ct. App. 1996)). "In addition to 

the changed circumstances of the parties, the financial ability of the supporting 

spouse to pay is a specific factor to be considered." Riggs v. Riggs, 353 S.C. 230, 

236, 578 S.E.2d 3, 6 (2003). 

Whenever any husband or wife, pursuant to a judgment 

of divorce from the bonds of matrimony, has been 

required to make his or her spouse any periodic payments 

of alimony and the circumstances of the parties or the 

financial ability of the spouse making the periodic 

payments shall have changed since the rendition of such 

judgment, either party may apply to the court which 

rendered the judgment for an order and judgment 

decreasing or increasing the amount of such alimony 

payments or terminating such payments and the court, 

after giving both parties an opportunity to be heard and to 

introduce evidence relevant to the issue, shall make such 

order and judgment as justice and equity shall require, 

with due regard to the changed circumstances and the 

financial ability of the supporting spouse, decreasing or 

increasing or confirming the amount of alimony provided 
for in such original judgment or terminating such 

payments. 

S.C. Code Ann. § 20-3-170(A) (2014). 

We hold the family court did not err in finding there had not been a material 

change of circumstances to support reducing Husband's alimony obligation. 

Husband's argument on appeal relies substantially on Husband's 

"back-of-the-envelope" calculations included in his June 2019 trial brief and a 

comparison of the average amount of alimony as a percentage of the supporting 

spouse's gross income and the spouses' combined gross income awarded by South 

Carolina appellate courts in the five years preceding June 2019. Husband's 

argument ignores the family court's statutory and credibility findings concerning 

Husband's financial situation at the time of the final hearing. First, as discussed 

above, the family court did not err in characterizing Husband's required annual 

payouts from deferred compensation benefit assets as income. As to Husband's 

back-of-the-envelope calculations, we find they fail to reflect the known actual 

value of the stock assets distributed to Husband in 2018 and 2019 and how much 

of the distributions Husband spent as opposed to reinvesting. Moreover, the 

calculations were based on the value of Husband's retirement holdings at a certain 

point in time and without supporting testimony or evidence, the calculations were 

merely speculative. See Butler, 385 S.C. at 336, 684 S.E.2d at 195 ("The party 

seeking modification has the burden to show by a preponderance of the evidence 

that the unforeseen change has occurred." (emphasis added) (quoting Kelley, 324 

S.C. at 486, 477 S.E.2d at 729)). 

Second, Husband's reliance on comparisons of alimony as a percentage of gross 

income in support of his argument is misguided. In evaluating the statutory 

factors, the family court found "Husband portrayed a very misleading financial 

picture to . . . Wife and to the [c]ourt," and we defer to this finding. See Lewis, 392 

S.C. at 385, 709 S.E.2d at 652-53 (holding that although this court reviews the 

family court's findings de novo, we are not required to ignore the fact that the 

family court, which saw and heard the witnesses, was in a better position to 

evaluate their credibility and assign comparative weight to their testimony). At the 

final hearing, Husband testified his financial declaration reflected what he 

anticipated spending after his July 2019 trip to Ireland, not his actual spending in 

the year prior to the final hearing. The testimony and evidence presented by the 

parties at the final hearing show Husband made significant credit card charges 

related to travel and dining from March 2018 to April 2019, after Husband's 

retirement. This included international travel, extensive domestic travel, and social 
expenditures demonstrating a non-frugal lifestyle. Simon testified Husband's 

credit card charges totaled $62,259 over the fourteen-month period from January 

2018 to March 2019 and Husband regularly paid his credit card balances in full. 

We find this testimony and evidence demonstrated that contrary to Husband's 

assertions, his lifestyle had not been negatively impacted by his retirement; further, 

Husband failed to present any evidence regarding his expenditures prior to his 

retirement. 

In addition, a comparison of Husband's 2010 financial declaration with his 2018 

and 2019 financial declaration shows an improvement in Husband's financial 

situation. In 2010, Husband had debts totaling $275,500 and assets with a negative 

value of $304,000. On his June 2019 financial declaration, Husband listed debts 

totaling $119,000 and assets valued at over $703,000. As discussed above, 

Husband's actual income in 2018 was significantly higher than the amount 

reflected on his financial declaration. In addition, Simon testified that over the 

fourteen-month period from February 1, 2018, to March 31, 2019, Husband 

deposited $374,885 into his bank accounts. Furthermore, the family court found 

"Husband had income from sources other than those [he] disclosed" in connection 

with its consideration of deposits totaling over $450,000 into one of Husband's 

bank accounts from Potter Concrete from November 2011 to March 2019. 

Although Husband asserts his March 2011 deposition testimony demonstrates he 

had not previously received any income from these transactions, we conclude 

Husband's testimony at the final hearing was inadequate to show he was not 

receiving income from these transactions. Husband failed to provide any evidence 

to support his contention that the cash received from these deposits was paid in full 

to the Masters Tournament badge holders. This evidence failed to demonstrate that 

Husband was unable to meet his alimony obligation at the time of the final hearing. 

See Riggs, 353 S.C. at 236, 578 S.E.2d at 6 ("In addition to the changed 

circumstances of the parties, the financial ability of the supporting spouse to pay is 

a specific factor to be considered."). Based on the foregoing, we find Husband 

failed to show a material change in circumstances to justify a reduction in his 

alimony obligation. See Thornton, 328 S.C. at 111, 492 S.E.2d at 94 ("The change 

in circumstances must be substantial or material in order to justify a modification 

of the previous alimony obligation."). Accordingly, we hold the family court did 

not err in finding there had not been a material change of circumstances to support 

reducing Husband's alimony obligation. 

IV. Attorney's Fees 
 

Husband argues Wife's attorney's fees were unreasonable and he should not be 

required to contribute to any of Wife's attorney's fees beyond the $5,000 paid under 

the temporary order. We disagree. 

In determining whether an attorney's fee should be 

awarded, the following factors should be considered: 

(1) the party's ability to pay his/her own attorney's 

fee; 

(2) beneficial results obtained by the attorney; 

(3) the parties' respective financial conditions; 

(4) effect of the attorney's fee on each party's 

standard of living. 

E.D.M. v. T.A.M., 307 S.C. 471, 476-77, 415 S.E.2d 812, 816 (1992). In 

determining the amount of attorney's fees to award, the court should consider "(1) 

the nature, extent, and difficulty of the case; (2) the time necessarily devoted to the 

case; (3) professional standing of counsel; (4) contingency of compensation; (5) 

beneficial results obtained; [and] (6) customary legal fees for similar services." 

Glasscock v. Glasscock, 304 S.C. 158, 161, 403 S.E.2d 313, 315 (1991). 

We hold the family court did not err in awarding Wife $42,000 in attorney's fees. 

The family court did not err in determining to award Wife attorney's fees because 

the factors under E.D.M. v. T.A.M. were met. First, the testimony and evidence 

presented at the final hearing showed Wife did not have the financial means to pay 

her own attorney's fees. Wife testified she had a current deficiency of $500 a 

month that would increase to $1,600 a month when her insurance premium 

increased within two months of the final hearing. Second, Wife's counsel 

successfully defended Husband's alimony reduction action and was able to 

maintain Wife's current alimony amount. Third, as addressed in more detail above, 

Husband's financial condition supported substantial travel and social expenditures 

despite his retirement. Conversely, Wife testified she owed comparatively 

significant personal debts and had a modest retirement asset valued at $17,000. 

Wife further testified to an extremely frugal lifestyle. Lastly, Wife's standard of 

living would decrease significantly if she was required to pay her attorney's fees. 

Wife's health condition would continue to worsen over time as a result of her 

primary progressive multiple sclerosis diagnosis. Her physician expected Wife to 

be wheelchair-bound in the future and require assistance with routine activities 
 

such as bathing, dressing, and meal preparation. Wife was already unable to pay 

for all of her medications at the time of the final hearing and she anticipated an 

increase in her prescription drug costs in the future, in addition to a significant 

increase in her health insurance premium. In contrast, based on the evidence 

previously discussed, Husband's standard of living would be impacted far less if 

ordered to pay attorney's fees. For these reasons, we find the family court did not 

err in awarding Wife attorney's fees. See Weller, 434 S.C. at 537, 863 S.E.2d at 

838 ("[T]his court may find facts in accordance with its own view of the 

preponderance of the evidence."). 

As to the amount of attorney's fees awarded, we find the family court did not err in 

determining Wife was entitled to $42,000 in attorney's fees. See Glasscock, 304 

S.C. at 161, 403 S.E.2d at 315 (holding in determining the amount of attorney's 

fees to award, the court should consider "(1) the nature, extent, and difficulty of the 

case; (2) the time necessarily devoted to the case; (3) professional standing of 

counsel; (4) contingency of compensation; (5) beneficial results obtained; [and] (6) 

customary legal fees for similar services."). Wife's attorney's fees were 

substantially related to services rendered in preparing a motion to compel 

discovery, issuing subpoenas to financial institutions in an attempt to discern 

Husband's financial position, and preparing for the two-day final hearing. We 

conclude the time spent in association with these services was justified in light of 

Husband's misrepresentations regarding his financial position as demonstrated by 

the discrepancies between the information he provided in his financial declarations 

and the testimony and evidence presented at the final hearing refuting his initial 

representations to both Wife and the family court. Both of Wife's attorneys are of 

good professional standing. As noted previously, Wife's counsel successfully 

defended Husband's alimony reduction action and were able to maintain Wife's 

current alimony amount. One of Wife's attorneys reduced her customary hourly 

fee from $250 to $175, and neither attorney billed for all of their time. We 

acknowledge that $75,4448

 in attorney's fees would typically be considered high in 

an alimony reduction action; however, in light of Husband's unwillingness to be 

forthcoming about his financial situation, the fee was reasonable under the 

circumstances. See Bodkin v. Bodkin, 388 S.C. 203, 223, 694 S.E.2d 230, 241 (Ct. 

App. 2010) ("[W]hen parties fail to cooperate and their behavior prolongs 

proceedings, this is a basis for holding them responsible for attorney's fees."). 

Accordingly, we find the family court did not err in determining Wife was entitled 

to $42,000 in attorney's fees. See Weller, 434 S.C. at 537, 863 S.E.2d at 838 

8

 The award amount was reduced by Husband's $5,000 payment under the 

temporary order and a $28,500 payment made by Wife's friend. 
 

 

("[T]his court may find facts in accordance with its own view of the preponderance 

of the evidence."). 

CONCLUSION 

Based on the foregoing, we affirm the family court's final order denying Husband's 

request for a reduction in his alimony obligation and awarding Wife $42,000 in 

attorney's fees. 

AFFIRMED. 

KONDUROS and HEWITT, JJ., concur.