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2004-UP-049 - Fried v. Fried

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Ann Fried,        Respondent,

v.

Dennis A. Fried,        Appellant.


Appeal From Charleston County
Judy C. Bridges, Family Court Judge


Unpublished Opinion No. 2004-UP-049
Submitted November 19, 2003 – Filed January 22, 2004


AFFIRMED


Donald Jay Budman, of Charleston, for Appellant

Frank M. Cisa, of Mt. Pleasant, for Respondent.

PER CURIAM: Husband appeals from a family court’s trial order requiring him to pay the full sum stipulated in the divorce settlement to Wife, in spite of the decrease in the value of the accounts due to market fluctuations. We affirm.

FACTS

Ann and Dennis Fried were divorced in 2002. The parties reached, and the family judge accepted, a settlement concerning the division of the marital estate. In the divorce order dated March 13, 2002, Husband was ordered to give to Wife “by QDRO, to be prepared within thirty (30) days from the date of [the] order, an amount equal to One Hundred Thirty Thousand ($130,000.00) Dollars, payable from all of the funds contained in a SEP-IRA held by Morgan-Stanley Dean Witter and the balance from annuities held in a ‘Putnam Fund’ at USB Paine Webber, both presently titled in [Husband’s] name.”

By a first QDRO, the sum of $95,000.00 from the Morgan Stanley account was assigned to Wife on April 7, 2002. A second QDRO assigned $35,000.00 to Wife from the Putnam account. The Morgan Stanley account subsequently decreased to $77,816.00 due to market fluctuations. Husband was willing to transfer those funds to Wife, but refused to add the lost $17,184.00 from the Putnam account to makeup the difference. Both parties moved for a Rule to Show Cause. The judge found that the divorce decree clearly mandated that Husband pay Wife $130,000.00, market fluctuations notwithstanding. The judge ordered Husband to pay $52,184,00 from the Putnam account. The judge also held Husband in contempt of court and granted attorney’s fees to Wife.

ISSUES

(1)   Did the family court err in finding that Husband should bear the risk of devaluating securities transferred to Wife pursuant to the divorce decree?

(2) Did the family court err in awarding attorney’s fees to Wife?

ANALYSIS  

This Court can determine facts in accordance with its own view of the preponderance of the evidence when reviewing matters from the family court. Wooten v. Wooten, 354 S.C. 242, 248, 580 S.E.2d 765, 768 (Ct. App. 2003). Husband argues that Wife should bear the burden of the market fluctuations because she acquired equitable title to the accounts upon the filing of the divorce decree. For that argument, Husband cites Calhoun v. Calhoun, 331 S.C. 157, 501 S.E.2d 735 (Ct. App. 1998). However, Calhoun is easily distinguishable from the present case. There, the wife had been awarded the actual lots at issue, But here, the divorce decree did not assign the two accounts to Wife. Instead, the divorce decree ordered that Wife be paid the sum certain of $130,000.00 from “all the funds” in the two accounts. The two subsequent QDRO’s were used simply “[i]n furtherance of the agreement to the transfer [of] the $130,000.00,” only “to effectuate the agreement of the parties as contained in the Divorce Decree.” That more money had to come from the Putnam account and less from the Stanley Morgan account is of no import.

Husband also appeals the family court’s decision to award attorney’s fees to Wife. “An award of attorney's fees will not be overturned absent an abuse of discretion.” Wooten, 354 S.C. at 254, 580 S.E.2d at 771. “In deciding whether to award attorney's fees, the family court should consider the parties' ability to pay their own fee, the beneficial results obtained by counsel, the respective financial conditions of the parties, and the effect of the fee on each party's standard of living.” Id. Here, the family court found that Wife had not received “any significant assets incident to the parties’ divorce” and was unemployed at the time of the hearing. Based on these and other facts, the court awarded her attorney’s fees. We cannot say that the family court abused its discretion.

AFFIRMED.

HUFF, STILWELL and BEATTY, JJ., concur.