                    THE STATE OF SOUTH CAROLINA
                         In The Supreme Court

            Mark M. Sweeney, Petitioner,

            v.

            Irene M. Sweeney, Respondent.

            Appellate Case No. 2017-001583



       ON WRIT OF CERTIORARI TO THE COURT OF APPEALS


                       Appeal from Greenville County
                     David E. Phillips, Family Court Judge


                              Opinion No. 27870
                 Heard January 29, 2019 – Filed March 20, 2019


                                 AFFIRMED


            Bruce W. Bannister and Luke A. Burke, both of Bannister,
            Wyatt & Stalvey, LLC, of Greenville, for Petitioner.

            David M. Yokel, of Greenville, for Respondent.
JUSTICE HEARN: In this marital litigation, we address whether the family court
adequately considered the projected growth of a party's liquid assets apportioned
through equitable division in awarding alimony. Although the court acknowledged
Respondent Irene Sweeney would receive substantial income from her share of an
investment account, it granted her alimony. The court of appeals affirmed, noting
the family court extensively analyzed the statutory factors governing alimony.
Sweeney v. Sweeney, 420 S.C. 69, 800 S.E.2d 148 (Ct. App. 2017). We affirm and
clarify that in determining alimony, family courts should consider the effect of
investment income on both parties.

                                       FACTS
       Mark and Irene Sweeney married in 1984 and over the course of their
marriage had three children. Husband worked for several different employers before
establishing a consulting business with a partner, McCallum Sweeney Consulting
(MSC). During this time, Wife stopped teaching special education and remained at
home, caring for the children. In the mid-2000s, MSC became extremely successful,
enabling the family to be financially secure. Eventually, the marriage began to falter,
and Husband filed for a no-fault divorce in February 2012. Wife counterclaimed,
asserting Husband committed adultery and seeking, inter alia, alimony.

      At trial, Husband acknowledged that he had been in contact with a woman
who lived in Chicago, but said she was merely a family friend. He denied having
any adulterous relationship until after he moved out of the marital home.
Additionally, Husband believed the marriage began to fall apart years earlier, and
the couple only planned to remain together until their last minor child vacated the
marital home.

       Wife disputed Husband's account, believing the marriage broke down only
after she discovered Husband had been frequently texting another woman. Wife
confronted Husband, who denied having an affair but agreed he would not contact
her again. However, several months later, in February 2012, Wife searched
Husband's phone and realized he had been texting the woman again. It was then that
the parties separated and this litigation ensued.

       Both parties presented expert testimony concerning the parties' liquid assets,
including a Morgan Stanley investment account containing $1,060,119, several
retirement accounts, and whole life insurance policies. Husband's expert, Michael
Meilinger, testified that the five-year historical rate of return on the account was
6.71%. Based on this rate, Meilinger opined Wife did not need alimony because she
could draw $67,297 annually from the account, or about $5,608 monthly, without
invading the principal. 1 Meilinger imputed $18,000 annually in income—$1,500 per
month, based on minimum wage employment. After testifying that Wife's expenses

1
 Meilinger based this assumption on a 60/40 equitable division in favor of Husband.
Although the family court ultimately awarded a 55/45 split of the total assets in favor
of Husband, Wife received approximately 70% of the funds in the investment
account.
were $5,446.16 per month, Meilinger believed the imputed income and the amount
the account would produce would provide Wife the financial means to maintain a
similar lifestyle without alimony.
       On cross-examination, Meilinger acknowledged that Wife would have to
liquidate the investment account over time in order to pay her monthly expenses. By
doing so, Wife would have only about $100,000 left in the account by the time she
is 80. Meilinger conceded that Husband, with his monthly income of approximately
$34,000, would be able to maintain his share of the investment account without
having to use its income to support himself.

        Wife's expert, Douglas Henderson, recommended an alimony award of $7,500
based on her monthly expenses of $6,699. Regarding the investment account,
Henderson disagreed that an investment return based on a hypothetical future return
rate should be used to offset the need for alimony, as there was too much risk and
too many assumptions underlying the projection. Further, he highlighted financial
documents which demonstrated that the account only produced approximately
$1,281.80 per month during the first quarter of 2014. Finally, he unequivocally
testified that in order to sustain her lifestyle, Wife would have to invade the principal,
and if she did so, the return rate would need to be even higher to replenish the
principal.
      The family court granted the divorce on the grounds of adultery and ordered
a 55/45 equitable division in favor of the Husband, as Wife received approximately
$1.2 million in liquid marital assets. Additionally, the court awarded $5,000 per
month in alimony, basing its decision on numerous statutory factors, including the
length of the marriage, the lifestyle the parties enjoyed, the disparity in income, the
Husband's ability to pay, and Husband's adultery. The family court also stated that
based on the equitable division, Wife would receive substantial income from her
share of the assets. Both parties moved to reconsider, with Husband arguing the
family court did not specify how much income Wife would receive from the
investment account. The court denied both motions, and each party appealed.

       The court of appeals affirmed, noting the family court relied on multiple
grounds for awarding alimony. Regarding the sixth factor—the current and
reasonably anticipated earnings of both spouses—the court of appeals cited evidence
that in the first quarter of 2014, the investment account produced $1,282 in income
per month, with Wife's share being only $897. Additionally, according to Husband's
November 2013 financial declaration, the account only produced $785 per month in
income. Recognizing competent evidence refuted Husband's claim that Wife would
receive $6,710 per month, the court of appeals held the family court did not err in
failing to adopt the account's five-year historical rate of return. Therefore, the court
of appeals found the family court did not err in refusing to assign a definite figure to
Wife’s projected interest income and in awarding alimony. We granted certiorari to
determine whether the family court must consider the expected increase in value of
a party's assets in determining alimony, and whether the alimony award here was
proper.

                                   DISCUSSION
       The family court's decision to award alimony is based on thirteen statutory
factors, two of which are particularly relevant to our decision here. One of those
factors is the marital and nonmarital properties of the parties. S.C. Code Ann. § 20-
3-130(C)(8) (2014) (requiring the court to consider "the marital and nonmarital
properties of the parties, including those apportioned to him or her in the divorce or
separate maintenance action"). Another factor relevant to our inquiry is "the current
and reasonably anticipated earnings of both spouses." S.C. Code Ann. § 20-3-
130(C)(6) (2014). While "earnings" is not defined in this context, our jurisprudence
prior to the General Assembly's decision to codify the alimony factors indicates that
a party's ability to pay, including from investment income, is but one factor in
assessing alimony. See generally Graham v. Graham, 253 S.C. 486, 491, 171 S.E.2d
704, 707 (1970) ("In arriving at the amount of alimony and child support, the trial
judge should take into consideration the needs of the [party seeking alimony]…and
the financial ability of the [paying spouse] to meet them, considering [that person's]
income and assets."); Blackmon v. Blackmon, 294 S.C. 187, 189, 363 S.E.2d 400,
401 (Ct. App. 1987) (noting it was proper for the court to consider money resulting
from an investment in determining alimony, whether that money be characterized as
income or a return on an investment). We do not believe the adoption of section 20-
3-130 changed this consideration. Other jurisdictions follow a similar approach,
recognizing that investment income should be considered in determining alimony.
See In re Marriage of Armstrong, 831 P.2d 501, 503 (Colo. App. 1992) (holding
the sum that an inheritance could be expected to yield was properly included as
earnings for purposes of support); Worsnop v. Worsnop, 204 A.D.2d 624, 625 (N.Y.
App. Div. 1994) (stating investment income should be considered for purposes of
support even where such income from stock is "sporadic and unpredictable");
Brewer v. Brewer, 869 S.W.2d 928, 935-36 (Tenn. Ct. App. 1993) (noting it is proper
to consider a spouse's income from investments to reduce alimony to that spouse).

       However, we reiterate the family court is tasked with analyzing all the relevant
statutory factors, as the family court did here. S.C. Code Ann. § 20-3-130(C) (2014)
("In making an award of alimony or separate maintenance and support, the court
must consider and give weight in such proportion as it finds appropriate to all of the
following factors…."). Moreover, we recognize due to the uncertainty of the market,
it likely would be difficult to project a definitive figure when considering the parties'
earnings. Indeed, the statute's language contemplates this by qualifying that the
earnings must be "reasonably anticipated." S.C. Code Ann. § 20-3-130(C)(6) (2014)
(emphasis added). Requiring the family court to identify a specific amount would be
speculative at best. The testimony presented in this case was not sufficiently certain
to ascertain the rate of return to a mathematical certainty. Instead, the family court
acknowledged that Wife would receive "substantial income from the assets she is
receiving under this equitable apportionment." We believe this finding demonstrates
the family court properly considered the role of investment income in determining
alimony, and accordingly, we decline to embrace Husband's argument that the
family court erred in failing to specify an exact amount that Wife would receive in
income from the account.

       Recognizing that a party's expected earnings is but one factor in awarding
alimony, we turn to whether the family court's decision is supported by our view of
the preponderance of the evidence. See Lewis v. Lewis, 392 S.C. 381, 386, 709
S.E.2d 650, 652 (2011) ("Our standard of review…is de novo."). As the court of
appeals thoroughly discussed, the family court extensively analyzed the statutory
factors in deciding to award alimony. Specifically, the family court noted the parties
were married for nearly thirty years, Husband's adultery contributed to the
breakdown of the marriage, the parties enjoyed a well-above average lifestyle, Wife
supported the family early on while Husband earned his master's degree, the parties'
current financial resources were vastly different, and Husband had the ability to pay
alimony. Applying a de novo standard of review, we agree with the court of appeals
that the family court did not err in awarding alimony.

                                   CONCLUSION
       While Husband is correct in arguing that family courts should consider
investment income as to both parties in assessing a party's anticipated earnings,
given the uncertainty of market fluctuations, we decline to require courts to assign a
specific number to future investment income. Accordingly, because the family court
here properly considered all relevant statutory factors, we affirm.

AFFIRMED.

BEATTY, C.J., FEW, JAMES, JJ., and Acting Justice James E. Lockemy,
concur.
