Opinion
Opinion No. 3681.
Submitted September 8, 2003.
Filed October 13, 2003.
Appeal From Horry County, H. T. Abbott, III, Family Court Judge
AFFIRMEDKevin M. Hughes, of North Myrtle Beach; for Appellant.
Frederick L. Harris, of Myrtle Beach; for Respondent.
Linda C. Yates (Wife) appeals from the family court order granting Donald K. Yates (Husband) a divorce on the grounds of Wife's habitual use of alcohol. We affirm.
FACTS
Husband and Wife married for the second time in April 1989. In March 1999, Wife remained in South Carolina when Husband moved to Puerto Rico to supervise a construction company. While he returned to South Carolina approximately every four months thereafter, Husband testified that he did not resume cohabitation with Wife. However, Husband sent home part of his earnings in order for Wife to pay marital bills.
Wife testified that she had been injured at work and had not been employed since 1999; however, she testified that she had once earned as much as $63,800 per year.
From December 1999 to January 2000, Wife was institutionalized for approximately six weeks for alcohol abuse. Husband returned from Puerto Rico after Wife came home from the alcohol treatment center in January 2000. At this point, Husband discovered Wife had disposed of a large portion of marital funds and had removed most of the couple's personal property from the marital home. Wife had also amassed a large amount of debt and was overdue on paying several marital bills. Further, a portion of the $11,600 that Husband sent home to pay marital bills was spent on Wife's addictions to alcohol and gambling.
Husband filed for divorce in March 2000, alleging one year's continuous separation. Wife counterclaimed for divorce on the grounds of adultery and habitual drunkenness.
After a temporary hearing, the family court issued an order specifying that the parties had a "continuing obligation to supplement the list of witnesses and exhibits up to the time of the trial [and that] failure to supplement may result in the exclusion of the exhibit of the witness." The record reveals that Wife consistently failed to respond to discovery, disregarding the court order and multiple pleas for production of her witness list. Husband advised the trial court that Wife had not replied to any of his discovery requests. As the trial began, Wife, through counsel, produced discovery.
At trial Wife testified extensively about her alcohol abuse problem. Husband then moved to amend his complaint to conform "to the evidence and request a divorce on the grounds of habitual drunkenness." The family court allowed the amendment. The family court awarded Husband a divorce on the grounds of Wife's habitual drunkenness.
ISSUES
I. Did the family court abuse its discretion by allowing Husband to amend his complaint?
II. Did the family court err in finding Husband was entitled to a divorce on the grounds of the habitual use of alcohol?
III. Did the family court abuse its discretion by declining to let the parties' child testify on Wife's behalf?
IV. Is there evidence in the record that the final divorce order resulted from an ex parte communication between Husband's counsel and the family court judge?
STANDARD OF REVIEW
In appeals from the family court, this court has the authority to find the facts in accordance with its view of the preponderance of the evidence. Rutherford v. Rutherford, 307 S.C. 199, 204, 414 S.E.2d 157, 160 (1992). This broad scope of review does not, however, require this court to disregard the findings of the family court. Stevenson v. Stevenson, 276 S.C. 475, 477, 279 S.E.2d 616, 617 (1981). Neither is the court required to ignore the fact that the trial judge, who saw and heard the witnesses, was in a better position to evaluate their credibility and assign comparative weight to their testimony. Cherry v. Thomasson, 276 S.C. 524, 525, 280 S.E.2d 541, 541 (1981).
LAW/ANALYSIS
I. Amended Complaint
Wife argues the family court erred by allowing Husband to amend his complaint to include habitual drunkenness as grounds for divorce.
At trial, Wife testified freely about her alcohol abuse problem and subsequent treatment for her addiction. After Wife's testimony, the family court granted Husband's motion to amend his complaint to request a divorce on the grounds of habitual drunkenness. "The decision whether to allow the amendment of pleadings to conform to the evidence is left to the sound discretion of the trial court." Dunbar v. Carlson, 341 S.C. 261, 267, 533 S.E.2d 913, 916 (Ct.App. 2000). "Amendments should be allowed if no prejudice occurs to the opposing party." Id.; see also Rule 15(b), SCRCP.
Wife's challenge to the amendment is limited to a claim of prejudice and the assertion that the evidence was insufficient to warrant the granting of the divorce. The prejudice claim must be examined in light of Wife's longstanding refusal to cooperate with the discovery order and requests. We discern no legal prejudice to Wife and find no abuse of discretion in permitting the amendment. Accordingly, the family court did not err in allowing Husband to amend his complaint to conform to the evidence presented at trial.
II. Habitual Drunkeness
Wife argues the family court erred in granting Husband a divorce on the grounds of habitual drunkenness. We disagree.
In order to prove habitual drunkenness, there must be a showing that the abuse of alcohol or drugs caused the breakdown of the marriage and that such abuse existed at or near the time of filing for divorce. Epperly v. Epperly, 312 S.C. 411, 414, 440 S.E.2d 884, 885 (1994); see also S.C. Code Ann. § 20-3-10 (1985). Here, the record provides ample evidence that Wife's alcoholism eventually led to the breakdown of the marriage. Wife and Husband both testified that Wife's alcohol abuse was so severe that she spent enormous sums of money on alcohol and was eventually institutionalized for alcohol abuse. The apex of Wife's alcohol problem — her stint at an alcohol treatment center — occurred approximately three months before Husband filed for divorce. Husband specifically testified that Wife's drinking problem — and the financial problems associated with Wife's alcoholism — led to the breakdown of the marriage.
Accordingly, there was substantial evidence to support the family court's decision to grant Husband a divorce on the ground of Wife's habitual use of alcohol.
III. Son's Testimony
Wife argues the family court erred in declining to allow the parties' son to testify on her behalf. We disagree.
In the order issued after the temporary hearing, the family court advised the parties that a witness would not be permitted to testify if the parties' witness lists were not updated. However, at trial, Wife attempted to present the parties' son as a witness without having included him on her witness list. The family court declined to allow the son's testimony.
Wife argues that Husband was "constructive[ly]" apprised of the potential witness's testimony because the witness provided an affidavit at the temporary hearing. The fact remains that the witness was not included on Wife's witness list. As such, Husband's attorney did not have adequate time to prepare for cross-examination of this surprise witness. Under these circumstances, it was not an abuse of discretion for the family court to refuse to allow the parties' son to testify. See Hilton Head Beach Tennis Resort v. Sea Cabin Corp., 305 S.C. 517, 520, 409 S.E.2d 434, 436 (Ct.App. 1991) ("Exclusion of testimonial or documentary evidence offered by a party is a remedy available to a trial court for the party's failure to comply with discovery.").
Accordingly, we find the family court acted within his discretion by not allowing the parties' son to testify. Regardless, we are unable to determine the prejudice, if any, to Wife, for she failed to make an offer of proof of the son's proposed testimony as required by S.C.R.E. 103(a)(2).
IV. Ex Parte Communications
Wife argues that, as the written divorce order differed from the oral findings of the family court, the court's final order was the product of "communication between [Husband]'s counsel and [the] family court judge." We disagree.
Wife has not presented any evidence to support her claim of an ex parte communication between the family court and Husband's counsel. Wife bases her argument on the fact that, in the final order, the family court judge found Wife owed Husband $18,425.72 though, in the original post-trial conference, the amount was to be $6,794.31. However, the family court was not bound by the original ruling. See Corbin v. Kohler Co., 351 S.C. 613, 621, 571 S.E.2d 92, 97 (Ct.App. 2002) ("It is well settled that a judge is not bound by a prior oral ruling and may issue a written order which is in conflict with the oral ruling."). Further, a letter from Husband's counsel indicates both parties met with the family judge between the original conference and the submission of the proposed order. Accordingly, we find this issue manifestly without merit.
Moreover, this issue was not raised to the family court, in the form of a motion under Rule 59(e), S.C.R.C.P., or otherwise. Thus, the issue is not preserved for review by this court. See Wilder Corp. v. Wilke, 330 S.C. 71, 77, 497 S.E.2d 731, 734 (1998) (holding an issue cannot be raised for the first time on appeal, but must have been raised to and ruled upon by the trial judge to be preserved for appellate review).
CONCLUSION
Based upon the foregoing, the family court's order is
AFFIRMED.
STILWELL, HOWARD, and KITTREDGE, JJ., concur.