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March 18, 2026 Get Citation Alerts Download PDF Add Note

Heather L. Scherba v. Ronald A. Sherba

Court of Appeals of South Carolina

• Citations: None known

• Docket Number: 2023-000949

• Opinion

• Authorities (22)

• Cited By (0)

• Summaries (0)

• Similar Cases (12.1K)

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Syllabus

In this cross-appeal from a divorce decree involving Heather L. Scherba (Wife) and Ronald A. Scherba (Husband), Husband appeals, arguing the family court erred in (1) awarding Wife alimony and (2) including nonmarital restricted stock units (RSUs) as income in its alimony and child support calculations. Wife appeals, arguing the family court erred in failing to award her attorney's and other fees. We affirm in part and reverse in part.

Combined Opinion

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Heather L. Scherba, Respondent-Appellant,

v.

Ronald A. Scherba, Appellant-Respondent.

Appellate Case No. 2023-000949

Appeal From Lexington County
FitzLee H. McEachin, Family Court Judge

Opinion No. 6128
Heard September 9, 2025 – Filed January 14, 2026
Withdrawn, Substituted, and Refiled March 18, 2026

AFFIRMED IN PART, REVERSED IN PART

Carrie A. Warner, of Columbia, for
Appellant/Respondent.

Yulee E. Harrelson, of Columbia, and Leslie T. Sarji, of
Sarji Law Firm, of Charleston, both for
Respondent/Appellant.

THOMAS, J.: In this cross-appeal from a divorce decree involving Heather L.
Scherba (Wife) and Ronald A. Scherba (Husband), Husband appeals, arguing the
family court erred in (1) awarding Wife alimony and (2) including nonmarital
restricted stock units (RSUs 1) as income in its alimony and child support

1
Companies may compensate employees in the form of RSUs. They are
"restricted" because there are conditions that must be met (such as length of
calculations. Wife appeals, arguing the family court erred in failing to award her
attorney's and other fees. We affirm in part and reverse in part.

FACTS

Husband and Wife married in 1999 and have two children. They separated on
August 1, 2020, and Wife commenced this action. Husband answered and
counterclaimed. By temporary order, the family court determined Husband's gross
monthly income was $25,286 and ordered him to pay $3,000 per month in child
support and $3,000 per month in alimony. The court later denied Husband's
motions for reconsideration and requests for litigation-cost and living-expense
advances, finding he could meet his needs by selling nonmarital Google restricted
stock units (RSUs).2 In addition, Husband amended his answer and counterclaim,
seeking a divorce based on the ground of one-year of continuous separation,
imputation of income to Wife, equitable division of assets and debts, and
attorney's fees and costs, among other relief.

The final hearing occurred over four days in February 2023. The parties testified
they lived frugally during the marriage, typically spending approximately $3,500
per month and carrying little debt. Husband worked in the information technology
(IT) field and was employed by Google from 2019 until 2023. At the time of trial,
he was unemployed but was seeking positions with comparable employers,
including Microsoft and Meta. Wife is licensed to practice law in Pennsylvania
and served in the United States Air Force (USAF) Judge Advocate General Corps
(JAG). By agreement of the parties, she left active duty in 2014 to focus on
raising the children. She continued to serve as an Individual Mobilization
Augmentee, requiring approximately 4.5 weeks of duty annually. Wife reported
income of $77,214 in 2022 and had been promoted from Major to Colonel.

employment or performance goals) before the shares vest. Upon vesting, the
ownership of the shares shifts to the employee, and they are deposited into the
employee's account. See Chris Kawashima, Restricted Stock: RSUs and RSAs (Jan.
10, 2025), https://www.schwab.com/learn/story/restricted-stock-units-and-awards-
guide (last visited Dec. 15, 2025).
2
At Google, RSUs are often referred to as Google Stock Units (GSUs); however,
we refer to Husband's Google Restricted Stock Units as RSUs. An RSU is a
certificate that entitles a Google employee to Alphabet, Inc. capital stock. One
RSU is equivalent to one Google stock; however, the certificate is not worth
anything until it vests. The certificate represents an offer of a benefit, but it has no
worth unless it vests during employment.
Wife testified regarding her reserve income, monthly expenses, and limited job-
search efforts. She acknowledged her income fluctuated month to month and that
her financial declarations from 2020 through 2022 reflected expenses ranging
from $6,439 to $10,016. Wife also conceded she had not explored full-time
civilian employment, federal employment, admission to the South Carolina Bar,
legal opportunities in Georgia where her license held reciprocity, or returning to
active duty. Although one child had exhibited behavioral issues in the past, Wife's
mental-health expert testified the child required only periodic check-ins and that
parents of similarly diagnosed children often work full-time.

Husband presented testimony from CPA Christopher Leventis, who testified the
temporary orders strained Husband's finances and necessitated the sale of
nonmarital RSUs. Leventis estimated Wife's average monthly expenses to be
approximately $8,179. Husband also presented vocational rehabilitation expert
Joel Leonard, who estimated Wife's civilian earning capacity at $101,200
annually. Husband testified he sold approximately 33,000 nonmarital RSUs to
pay legal expenses and was applying for IT positions with expected salaries
between $100,000 and $175,000. Wife's expert, CPA Richard Livingston,
testified Husband's RSUs were reported as compensation on his pay statements
and tax documents and became liquid upon vesting and deposit into his Charles
Schwab account. Livingston opined vested RSUs constituted income available for
support.

The parties stipulated to the characterization and distribution of Husband's marital
and nonmarital RSUs and agreed to an equal division of the marital estate.
Husband was granted a divorce on the ground of one-year continuous separation.
The marital estate had a gross value of more than $1.7 million, with each party
receiving net distributions exceeding $800,000. Wife retained her nonmarital
Thrift Savings Plan and military pension, and Husband retained approximately
$90,000 in nonmarital RSUs.

The family court found Wife overstated some expenses and determined her
average monthly expenses to be $8,079. The court declined to impute civilian
earnings to Wife but found her promotion to Colonel warranted an 11% income
increase, resulting in annual income of $85,960. Prior to setting support awards,
the court again emphasized Husband had been terminated from Google and had
not, at that time, obtained new employment. In determining gross compensation
per month, the court found "[Husband's] gross compensation from Google from
his severance includes principal earnings, bonus, RSUs, and seed money from
group life and a health savings account all totaling $33,000 gross per month."
Ultimately, the court ordered Husband to pay $1,500 per month in permanent
periodic alimony. The court held "[t]his alimony is modifiable in the future based
on a substantial and material change in circumstances." Husband was ordered to
pay child support in the amount of $3,125 per month. In determining the alimony
award, the family court considered the factors set forth in section 20-3-130 of the
South Carolina Code.3 The court declined to award attorney's fees to either party.
Husband's motion to reconsider was denied, and this appeal followed.

3
Our legislature has directed the family court to consider the following factors in
making an award of alimony:
(1) the duration of the marriage together with the ages of
the parties at the time of the marriage and at the time of
the divorce . . .;
(2) the physical and emotional condition of each spouse;
(3) the educational background of each spouse, together
with need of each spouse for additional training or
education . . .;
(4) the employment history and earning potential of each
spouse;
(5) the standard of living established during the marriage;
(6) the current and reasonably anticipated earnings of
both spouses;
(7) the current and reasonably anticipated expenses and
needs of both spouses;
(8) the marital and nonmarital properties of the parties,
including those apportioned to him or her in the divorce
or separate maintenance action;
(9) custody of the children, particularly where conditions
or circumstances render it appropriate that the custodian
not be required to seek employment outside the home, or
where the employment must be of a limited nature;
(10) marital misconduct or fault of either or both parties .
. .;
(11) the tax consequences to each party as a result of the
particular form of support awarded; (12) the existence
and extent of any support obligation from a prior
marriage or for any other reason of either party; and
(13) such other factors the court considers relevant.
STANDARD OF REVIEW

"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). 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 v. Lewis, 392 S.C. 381, 385, 709
S.E.2d 650, 651 52 (2011). "The appellant bears the burden of convincing the
appellate court that the family court committed error or the preponderance of the
evidence is against the family court's findings." Greene v. Greene, 439 S.C. 427,
439–40, 887 S.E.2d 157, 164 (Ct. App. 2023).

LAW/ANALYSIS

A. Husband's Appeal

1. Alimony

Husband argues the family court erred in awarding Wife permanent periodic
alimony based on her capable earnings, education, and qualifications. We agree.

"Generally, alimony should place the supported spouse, as nearly as is practical, in
the same position he or she enjoyed during the marriage." Crossland v. Crossland,
408 S.C. 443, 451, 759 S.E.2d 419, 423 (2014) (quoting Allen v. Allen, 347 S.C.
177, 184, 554 S.E.2d 421, 424 (Ct. App. 2001)). "Alimony should not dissuade a
spouse, to the extent possible, from becoming self-supporting." Rimer v. Rimer,
361 S.C. 521, 525, 605 S.E.2d 572, 574 (Ct. App. 2004). Alimony is based on
both the supporting spouse's ability to pay and the supported spouse's
demonstrated need. See Carter v. Carter, 443 S.C. 585, 608, 905 S.E.2d 405, 417
(Ct. App. 2024), cert. denied (Mar. 12, 2025) (affirming an award of alimony
where the evidence indicated Wife's need and Husband's ability to pay).

"[I]t is proper to consider a supported spouse's earning capacity and impute income
to a spouse who is underemployed or unemployed." Marchant v. Marchant, 390
S.C. 1, 9–10, 699 S.E.2d 708, 713 (Ct. App. 2010). "[T]he common thread in
cases where actual income versus earning capacity is at issue is that courts are to

S.C. Code Ann. § 20-3-130 (C) (2014).
closely examine the [party's] good-faith and reasonable explanation for the
decreased income." Kelley v. Kelley, 324 S.C. 481, 489, 477 S.E.2d 727, 731 (Ct.
App. 1996).

Based on our own view of the preponderance of the evidence, we find Wife is not
entitled to alimony. Our courts have consistently emphasized that alimony is
intended to provide the supported spouse with a substitute for the support
incidental to the marital relationship. In Hawley v. Hawley, 363 S.C. 318, 323, 610
S.E.2d 309, 312 (Ct. App. 2005) and Cohen v. Cohen, 438 S.C. 9, 15–16, 881
S.E.2d 650, 653 (Ct. App. 2022), this court stated that alimony should place the
supported spouse, as nearly as practical, in the same position they enjoyed during
the marriage. Similarly, in Rudick v. Rudick, 437 S.C. 270, 278–79, 878 S.E.2d
686, 690 (2022), our supreme court noted that the objective of alimony is to ensure
the parties separate on as equal a basis as possible, considering the supported
spouse's needs and the supporting spouse's ability to pay. Here, it was established,
and the court agreed as such, that the parties lived a middle-class standard of
living. Each testified that they did not spend lavishly, they purchased their home
in 2016 for approximately $300,000, they carried little to no debt, and they opted
to save/invest throughout their marriage. Because of Husband's support
obligations, Wife's standard of living improved. See Myers v. Myers, 391 S.C.
308, 315, 705 S.E.2d 86, 90 (Ct. App. 2011) ("[I]t is error to award [a spouse]
permanent alimony substantially in excess of her needs."); McElveen v. McElveen,
332 S.C. 583, 600, 506 S.E.2d 1, 10 (Ct. App. 1998), disapproved of on other
grounds by Wooten v. Wooten, 364 S.C. 532, 615 S.E.2d 98 (2005) (reducing the
husband's monthly alimony obligation from $11,000 per month to $7,500 per
month after finding the wife's living expenses, as stated in her financial
declaration, were unnecessarily inflated); Woodward v. Woodward, 294 S.C. 210,
217, 363 S.E.2d 413, 417 (Ct. App. 1987) (finding permanent alimony of $3,000
per month was excessive when the wife had been awarded a fair percentage of the
marital estate and such an award was "substantially in excess of her needs").

We also find the court erred in awarding Wife alimony based on the income
imputed to her because Wife's capable earnings were higher than what the family
court imputed to her. Wife testified at trial that she knew her temporary active-
duty orders with the Air Force would end in February 2021 and that she intended
to seek additional employment when that time came. Wife admitted that she only
applied for two jobs throughout the pendency of this action, both at a school
district doing administrative work. While she did apply for additional duty, Wife
admitted she did not apply until October 2022, two years after the case
commenced. As a part-time reservist, Wife only needs 24 drill days out of the year
to maintain her reservist status. She admitted that other part-time reservists
maintain full-time employment and use reserve duty to supplement their income.
Wife's part time reservist duty afforded her $77,000 in 2022 alone. Wife also
acknowledged that while she commutes to Shaw Air Force Base over an hour and
a half away from her home, she never looked into employment opportunities in
Augusta, Georgia, where her law degrees held reciprocity. When asked if she
explored federal opportunities, she stated, "not necessarily," and conceded she only
looked into federal jobs after receiving Husband's expert's vocational rehab report.
She did not attempt to apply for a South Carolina law license, look into South
Carolina jobs that do not require a license, or consider re-enlisting in active duty.
Although Husband's vocational expert testified to jobs in the civilian market in
which Wife never worked, we do not believe his testimony should be discounted.
Wife is a licensed attorney and could obtain her law license in South Carolina, or
she could seek attorney positions in Georgia, where her license held reciprocity.
Further, during the litigation, Wife was promoted within the USAF twice, resulting
in additional imputed income. See Sanderson v. Sanderson, 391 S.C. 249, 256,
705 S.E.2d 65, 68 (Ct. App. 2010) (holding prevailing job opportunities and
earning levels must be considered when imputing income). At Wife's age, and
with the positive therapeutic progression of the children, we find the evidence
supports that Wife was underemployed. See Gartside v. Gartside, 383 S.C. 35,
45–46, 677 S.E.2d 621, 627 (Ct. App. 2009) (affirming the imputation of minimum
wage income to a wife who had been out of the workforce for twenty years but was
capable and energetic, based on the wife's ability to earn more than her reported
income, taking into account work history and job opportunities). Additionally,
Wife testified she applied for two positions within the Lexington County School
District, and should those positions come to fruition, she could gain additional
income, as well. Wife's inflated monthly expenses and underreporting of her
income as noted by the family court lead us to believe she has not sincerely sought
additional employment to supplement her income. Wife's testimony reflects she
was satisfied with her current lifestyle, which included the support. Wife only had
to work 4.5 weeks per year and still received an imputed annual income of
approximately $85,000. Wife is young, educated, and has the flexibility to
supplement her income in numerous ways. Based on the foregoing, we reverse the
family court's award of alimony to Wife.

1. Restricted Stock Units

Husband argues the family court erred in including his nonmarital RSUs as
income. We disagree.
The family court noted there are no South Carolina cases dealing with whether
RSUs should be considered as income for the purposes of calculating support,
noting that RSUs are different than stock options. 4 The court rejected Husband's
reliance on Shorb v. Shorb, 372 S.C. 623, 643 S.E.2d 124 (Ct. App. 2007), which
considered stock options. The issue of including stock options as income was not
addressed in Shorb, but this court considered whether stock options were
considered marital property, affirming the finding that nonvested stock options
granted during the marriage and before the date of filing for divorce were marital
property subject to equitable distribution. Id. at 631–32, 643 S.E.2d at 128–29.
This court found the family court correctly classified the stock options as marital
property and determined their value based on the date of sale or vesting. Id. at 634,
643 S.E.2d at 130.

Our review of the law governing this issue indicates it is not consistent among
jurisdictions. Generally, "RSUs and performance shares are taxed as employment
income at the time of vesting, based on the fair market value of the shares at that
date. When shares are later sold, the usual rules of whether the gain is taxed as
short term or long term capital gain apply." Shari A. Levitan, Kimberly R.
Willoughby et. al., Realizing the Full Value of Hard to Value Assets, 34 J. Am.
Acad. Matrim. Law. 133, 142 (2021).

We find the cases treating vested RSUs as income compelling. In Matter of
Greenberg, 261 A.3d 293, 298 (N.H. 2021), the court treated vested RSUs as
income for determining child support and stating that "[e]ven if we were to agree . .
. that the restricted stock awards were distributed . . . in the divorce as property,
doing so would not preclude the trial court from treating vested restricted stock as
income for child support purposes. Under New Hampshire law, an asset may be
equitably distributed to a party and the income from the asset may be used to
determine child support." The court in In re E.J.S., 483 P.3d 110, 114–15 (Wash.
Ct. App. 2021) found RSUs were not stock options; thus, an argument regarding
"double counting" was "inapposite" and vested RSUs should have been included in
calculating income. The court stated the following:

4
Livingston also testified that stock options and RSUs are "two completely
different things" because an RSU is a share of stock with restrictions and will
always have value upon vesting if the stock is worth more than zero dollars. Stock
options, on the other hand, are simply the option to purchase stock at a
predetermined price; and, once those options vest, they may or may not have value.
Contrary to [the] suggestion that [the] vested and
delivered RSUs count as income for child support
purposes only if the shares of stock [the wife] received
are actually liquidated, we conclude the trial court abused
its discretion in omitting [the] vested and delivered RSUs
from the income calculation. Consistent with the federal
income tax standards, her vested and delivered RSUs
count as income for child support purposes whether or
not simultaneously liquidated.

Id.; see Vanderveer v. Vanderveer, 964 N.W.2d 694, 712 (Neb. 2021) (finding a
portion of the husband's RSUs was includable in his total income for purposes of
calculating child support where the husband regularly received annual grants of
RSUs from employer, husband's RSU income averaged more than $357,000
annually over the prior three years, and there was no evidence that the pattern was
likely to change in future, even though the trial court classified husband's unvested
RSUs during a four-year period as marital property and equitably divided them);
Hoegen v. Hoegen, 43 N.E.3d 718, 722 (Mass. App. Ct. 2016) (finding RSUs were
part of the husband's compensation as regularly earned income as seen on his
paystubs and stating, "these monies should have been included as gross income,
along with his base salary and bonus compensation, in calculating his child support
obligation").

We recognize Husband cites cases that support his argument; however, we find
them less persuasive. See In re Marriage of Micheli, 15 N.E.3d 512, 520 (Ill. App.
Ct. 2014) (considering the equitable distribution of unvested stock options and
RSUs); Gross v. Zimmerman, 197 So. 3d 1248, 1254–55 (Fla. Dist. Ct. App. 2016)
(affirming the trial court's refusal to consider RSUs received by the father as
income for purposes of determining child support, finding they were "promises by
the father's employer to deliver shares of the employer's company stock in the
future").

To the extent Husband relies on Penner v. Penner, 411 S.W.3d 775, 781 (Ky. Ct.
App. 2013), in which the court remanded to the trial court to divide RSUs upon
vesting and "not include the stock as income to either party," we note it was called
into doubt by Normandin v. Normandin, 634 S.W.3d 589, 600 (Ky. 2020), opinion
modified and superseded on denial of reh'g (Apr. 29, 2021), which held that
"RSUs should have been treated as deferred marital income" and considered "in
determining child support." See Duffy v. Duffy, 540 S.W.3d 821, 830 (Ky. Ct.
App. 2018) (finding "the trial court properly realized that the RSUs could not be
included as a marital asset and also attributed to [the father] as income"). 5

Like the family court, we find the vested RSUs may be considered as income
because they were reflected as compensation on Husband's contracts, W-2s, and
his tax returns as earned income; he received the funds in lieu of other forms of
compensation; and he paid taxes on them as income when they vested.
Accordingly, we affirm the award of child support. 6

B. Wife's Appeal

Wife argues the family court erred in failing to award her attorney's fees and
costs. 7 We disagree.

Each party contends the other party prolonged the litigation and hampered final
resolution of the issues. Wife argues Husband requested DNA testing of the
parties' oldest child; served Wife with a preservation letter regarding her electronic
devices; and subpoenaed the same information from AT&T, requiring Wife to
move to quash to protect confidential USAF information on her cellular phone. He
also filed numerous motions regarding modifying temporary relief and requesting
alteration or amendment of temporary orders; belatedly named a vocational expert
to support his claim that Wife should be earning more money; required Wife to
subpoena Google to learn the details of his termination and severance package; and
presented an in-kind division of Wife's retirement on the eve of trial. Husband
argues Wife's behavior prior to filing was posturing her case, including having
local police conduct a welfare check on Husband; alleging abuse despite any
verifiable evidence, which led to Husband's supervised visitation for nine months;
purposely waiting to file her action until Husband was earning his highest
earnings; not being candid about her earnings; refusing to cooperate in the
discovery process regarding her electronic devices in particular; allegedly refusing

5
We note the court in Duffy relied on Penner.
6
Husband further argues that to the extent the temporary orders of child support
were overpaid because of the family court's inclusion of the RSUs as income, he
overpaid $32,304 of child support. Because we hold the family court did not err by
finding the RSUs properly included in Husband's income, we need not address this
argument. See Futch v. McAllister Towing of Georgetown, Inc., 335 S.C. 598, 613,
518 S.E.2d 591, 598 (1999) (holding an appellate court need not address remaining
issues when disposition of a prior issue is dispositive).
7
We combine Wife's first and second issues on appeal.
to attend her own deposition or submit to a vocational interview; and submitting
allegedly unreasonable proposals for the parties' three mediations.

"[A]ttorney's fees may be assessed against a party in an action brought in the
family court." Patel v. Patel, 359 S.C. 515, 533, 599 S.E.2d 114, 123 (2004)
(citing S.C. Code Ann. § 20-7-430 (38) (Supp. 2023)). "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; and [the]
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). "[T]he family court must
make specific findings of fact on the record for each of the required factors."
Thornton v. Thornton, 428 S.C. 460, 477, 836 S.E.2d 351, 360 (Ct. App. 2019).
"Failing to cooperate and prolonging litigation can serve as an additional ground
for awarding attorney's fees." Daily v. Daily, 432 S.C. 608, 630, 854 S.E.2d 856,
868 (Ct. App. 2021).

Here, the family court considered the factors established in E.D.M. The court
found each party had the ability to pay their fees based on the value of the marital
estate. In particular, the court noted that Husband was unemployed, had been
required to liquidate the nonmarital portion of his RSUs to pay expenses, and owed
$83,000 in tax debt. In comparison, Wife had $115,000 in checking and savings
accounts. The court next noted that although Wife received the most beneficial
results, Husband also received some beneficial results. Regarding the third factor,
the court found each party would have more than $800,000 at their disposal. In
addition, the court noted that although Husband had an excellent financial situation
prior to the proceedings, that had changed over the course of litigation. In
comparison, Wife was in good financial shape. Finally, the court found an award
of fees to either party would affect the other party's standard of living. Our de
novo review leads us to the same conclusion regarding the equities, and we find the
family court did not err in denying Wife an award of attorney's fees and costs. Id.
at 631, 854 S.E.2d at 869 (reviewing an award of attorney's fees in a family court
action based on our de novo review).

CONCLUSION
We affirm the family court's inclusion of vested RSUs in its calculation of
Husband's income, affirm the denial of Wife's request for attorney's fees and costs,
and reverse the award of alimony to Wife.
AFFIRMED IN PART, REVERSED IN PART.

WILLIAMS, C.J., and CURTIS, J., concur.