Child Support Law Cases and Guidelines In South Carolina
In an action on appeal from the family court, the appellate court may find facts in accordance with its own view of the preponderance of the evidence. Epperly v. Epperly, 312 S.C. 411, 414, 440 S.E.2d 884, 885 (1994).
However, this does not mean that the court should disregard the findings of the family court judge, who saw and heard the witnesses. Hooper v. Rockwell, 334 S.C. 281, 297, 513 S.E.2d 358, 367 (1999).
Child support awards are addressed to the sound discretion of the trial judge and, absent an abuse of discretion, will not be disturbed on appeal. Mitchell v. Mitchell, 283 S.C. 87, 92, 320 S.E.2d 706, 710 (1984).
An abuse of discretion occurs when the court is controlled by some error of law or where the order, based upon the findings of fact, is without evidentiary support. Kelley v. Kelley, 324 S.C. 481, 485, 477 S.E.2d 727, 729 (Ct. App. 1996).
The Guidelines further provide:
Potential Income. If the court finds that a parent is voluntarily unemployed or underemployed, it should calculate child support based on a determination of potential income which would otherwise ordinarily be available to the parent.
(b) In order to impute income to a parent who is unemployed or underemployed, the court should determine the employment potential and probable earning level of the parent based on that parent's recent work history, occupational qualifications, and prevailing job opportunities and earning levels in the community. 27 S.C. Code Ann. Regs. 114-4720(A)(5) (Supp. 1999).
Where a parent voluntarily lessens his or her earning capacity, this Court will closely scrutinize the facts to determine the parent's earning potential, rather than the parent's actual income. See Camp v. Camp, 269 S.C. 173, 174, 236 S.E.2d 814, 815 (1977); Robinson v. Tyson, 319 S.C. 360, 363, 461 S.E.2d 397, 399 (Ct. App. 1995);
see also Chastain v. Chastain, 289 S.C. 281, 283, 346 S.E.2d 33, 35 (Ct. App. 1986) (finding that father with master's degree voluntarily removed himself from the job market to attend law school and his earning potential was properly considered in calculating child support).
Deviation from the Guidelines should be the exception rather than the rule. Sexton v. Sexton, 321 S.C. 487, 491, 469 S.E.2d 608, 611 (Ct. App. 1996).
"When the court orders a child support award that varies significantly from the amount resulting from the application of the Guidelines, the court shall make specific, written findings of those facts upon which it bases its conclusion supporting that award." 27 S.C. Code Ann. Regs. 114-4710(A)(1) (Supp. 1999).
A list of possible reasons for deviation from the Guidelines is provided by statute. See S.C. Code Ann. 20-7-852 (Supp. 1999).
Neither of the court's explanations for a deviation from the Guidelines is included among the factors supporting deviation listed in the regulations. See id.