SC Supremes Reverse Court Of Appeals and Reinstate Permanent Alimony Award

South Carolina is one of the few states where permanent alimony is still preferred when alimony is at issue.  The Supreme Court has just made it more difficult for people trying to end an alimony obligation when their former spouse has moved on to a new relationship.

On August 26, the South Carolina Supreme Court reversed a Court of Appeals ruling terminating an award of permanent alimony in the matter of McKinney v. Pedery. Former Wife (the payor) and had alleged former husband was engaged in a romantic relationship and had lived with his girlfriend for more than 90 consecutive days. The South Carolina Code of laws  (20-3-130(B)(1)) allows this fact to be a basis to terminate an award of permanent alimony:

For purposes of this subsection and unless otherwise agreed to in writing by the parties, “continued cohabitation” means the supported spouse resides with another person in a romantic relationship for a period of ninety or more consecutive days. The court may determine that a continued cohabitation exists if there is evidence that the supported spouse resides with another person in a romantic relationship for periods of less than ninety days and the two periodically separate in order to circumvent the ninety-day requirement.

In this matter, the testimony established that the former husband’s girlfriend lived with former husband four nights per week, then lived with her son in another town for 3 nights per week. Girlfriend was nanny for son’s kids. The Court of Appeals found that girlfriend “shared a home on a continuous and uninterrupted basis for substantially longer than ninety days,” and then held that “(girlfriends) departure was more akin to a temporary absence for out-of-town travel than it was to routine separation based on separate residences.” McKinney v. Pedery, No. 2013-002601, 2015 WL 5036966, at *2.

The Supreme Court reversed and found that the Court of Appeals was in effect modifying the statute:

We do not deny that the facts indicate that Pedery and Hamby’s living situation is a permanent arrangement of a romantic nature. Rather, we focus on the specific requirement under the plain language of section 20–3–130(B). If the statute merely required the supported spouse to “reside with” his paramour, then termination of McKinney’s alimony obligation would be proper. However, the statute mandates cohabitation for ninety consecutive days.

The Supreme Court found that former wife needed to show that the girlfriend actually had moved into the home with the former husband and resided there with him for 90 consecutive days. Noting that it would not even be possible for a member of the Supreme Court to prove that they lived with their spouse for 90 consecutive days due to their work schedules the court found that “the language of the statute is a choice made by the Legislature and creates a result to which we are confined, as the plain meaning of section 20–3–130(B) cannot accord with the so-called “common sense application” of the statute“.

In addressing the exception to the statute, that the two “periodically separate” in order to avoid the 90 consecutive day requirement, the Supreme Court found that girlfriend had maintained a separate home with her son and was nanny to her grandchildren prior to her relationship with the former husband, and therefore her travel was not related to an intention to circumvent the statute.

Once again, a word to the wise: be careful when entering into awards of permanent periodic alimony as these orders are very difficult to change.

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