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2004-UP-104 - Lippincott v. Lippincott
Sharon and Richard Lippincott appeal certain aspects of the family court’s distribution of marital property following their di

THE STATE OF SOUTH CAROLINA
In The Court of Appeals


Sharon Lippincott,        Appellant/Respondent,

v.

Richard Lippincott,        Respondent/Appellant.


Appeal From Dorchester County
Gerald C. Smoak, Jr., Family Court Judge


Unpublished Opinion No. 2004-UP-104
Submitted January 12, 2004 – Filed February 18, 2004


AFFIRMED


George J. Morris, of Charleston, for Appellant-Respondent.

Richard Lippincott, of Mt. Pleasant, for Respondent-Appellant.

PER CURIAM:  Sharon Lippincott (“Wife”) and Richard Lippincott (“Husband”) each appeal the family court’s valuation of certain assets in its equitable distribution of marital property following their divorce.  We affirm.

FACTS

Husband and Wife initiated this divorce proceeding in 1998.  Following their separation, they entered into a settlement agreement that was approved and incorporated into an order of the family court dated July 17, 2001.  Under the terms of the agreement, Husband and Wife agreed to distribute their marital estate in equal shares.

A disagreement arose, however, regarding the value of several marital assets and liabilities.  The disputed items included:  Wife’s money purchase pension plan, furniture from the marital home, marital debt and expenses, and Husband’s Individual Retirement Account (IRA).  Unable to resolve the problem themselves, Husband and Wife sought the aid of the family court to determine the value of these items.  On June 4, 2002, the court conducted a hearing on the matter.  On August 2, 2002, the court issued an order determining the value of the disputed items and dividing them equally.

By way of the present cross-appeal, Husband and Wife both argue the family court erred in reaching its valuations.

STANDARD OF REVIEW

In appeals from the family court, this Court has authority to find the facts in accordance with our own view of the preponderance of the evidence.  Woodall v. Woodall, 322 S.C. 7, 10, 471 S.E.2d 154, 157 (1996).  This broad scope of review, however, does not require us to disregard the findings of the court below.  Stevenson v. Stevenson, 276 S.C. 475, 477, 279 S.E.2d 616, 617 (1981).  We are mindful 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.  McAlister v. Patterson, 278 S.C. 481, 483, 299 S.E.2d 322, 323 (1982).

The family court has broad discretion in determining how marital property is to be distributed.  Murphy v. Murphy, 319 S.C. 324, 329, 461 S.E.2d 39, 41 (1995). The court below may use any reasonable means to divide the property equitably, and its judgment will not be disturbed absent an abuse of discretion.  Id. at 329, 461 S.E.2d at 41-42.

DISCUSSION

I.          Wife’s Appeal

Wife claims the family court erred in its valuation of her money purchase pension plan.  We disagree.

The family court found the value of the pension was $13,113.56 and that, under the separation agreement, the parties were entitled to equal shares of $6,556.78. While not explicitly stated in the family court’s order, this amount appears to be the value of the pension as reflected on a June 30, 2000 [1] pension statement, which lists the vested account balance as $13,113.56.

Wife argues the family court should have valued the pension as of June 1998, the time the parties separated.  As a general rule, Wife is correct.  Though the required date of valuation is not specifically prescribed by statute, our courts have held that the valuation date should be the date marital litigation is commenced, “since that is the time that property must now be owned to come within the meaning of the term ‘marital property.’”  Smith v. Smith, 294 S.C. 194, 203, 363 S.E.2d 404, 409 (Ct. App. 1987); see S.C. Code Ann. § 20-7-473 (Supp. 2003) (defining “marital property” as property “owned as of the date of filing or commencement of marital litigation”); Mallett v. Mallett, 323 S.C. 141, 151, 473 S.E.2d 804, 810 (Ct. App. 1996) (“Marital property is valued as of the date of the filing of the complaint.”); Jamar v. Jamar, 308 S.C. 265, 267, 417 S.E.2d 615, 616 (Ct. App. 1992) (“The proper date to value marital property is the time the marital litigation is filed or commenced.”).

This rule, however, has not been inflexibly applied.  In Fields v. Fields, 342 S.C. 182, 536 S.E.2d 684 (Ct. App. 2000), this Court recognized that the family court should be given latitude to account for appreciation or depreciation in marital assets that occurs after separation but before the equitable division can be effectuated.  In that case, securities that had been awarded to the wife increased in value during the eleven months between separation and the time the divorce was granted and the property was divided. Id. at 187, 536 S.E.2d at 686.  The family court assessed the value of the stocks as of the time of division, finding the later date was the closest date to the parties’ divorce for which corporate information was available. Id.  This Court held that “the family court was well within its discretion in deciding to value [the stocks] on the later date.” Id.

As in Fields, the only information available regarding the value of the asset in the present case was for the later, post-separation date well after the commencement of the action.  Other than Wife’s brief testimony that the money purchase pension plan was the equivalent of Husband’s IRA valued on June 30, 1998, at approximately $2,058.79, the June 2000 statement is the only evidence of the pension’s value contained in the record before us.  Wife’s assertions regarding the June 1998 value of the pension is without any substantiation in the record.

Having failed to meet a minimal level of proof, Wife left the family court with little choice in selecting a value for the pension plan.  The family court, therefore, did not err in assigning the $13,113.56 value.  See Dixon v. Dixon, 334 S.C. 222, 228, 512 S.E.2d 539, 542 (Ct. App. 1999) (“It is an unfortunate reality that, given the volume of cases handled by our family courts, there often is a substantial delay between the commencement of an action and its ultimate resolution.  Thus, it is not unusual for the value of marital assets to change, sometimes substantially, between the time the action was commenced and its final resolution.  In such a case, the family court has the ability to consider the post-filing appreciation or depreciation when valuing and apportioning the marital estate.”); Woodward v. Woodward, 294 S.C. 210, 215, 363 S.E.2d 413, 416 (Ct. App. 1987) (stating the family court’s valuation of property will be affirmed if it is within the range of the evidence); Smith, 294 S.C. at 198, 363 S.E.2d at 407 (holding the family court may accept one party’s valuations of marital property over those of the other party).

II.        Husband’s Appeal

            In his cross-appeal, Husband asserts the family court erred by unevenly dividing the furniture from the marital home, incorrectly calculating the marital debt, and improperly including his IRA as part of the marital property.  We address Husband’s arguments separately below.  As with Wife’s claim, however, we find Husband’s claims fail for complete lack of proof.

A.        Furniture

The parties stipulated as a part of their settlement agreement that the furniture had a value of $15,500 and that it would be divided equally by in-kind distribution. Husband argues he did not receive his share of the furniture, claiming that Wife changed the locks to the marital home and prevented him from retrieving his furniture.  While there is a brief mention of furniture division during the cross-examination of Wife and direct-examination of Husband, it does not appear from the record that this specific argument was raised to or ruled upon by the court.   As such, it is not properly preserved for this Court’s review.  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); Hatfield v. Hatfield, 327 S.C. 360, 369, 489 S.E.2d 212, 217 (Ct. App. 1997) (stating issue must be raised to and ruled on by family court to be preserved for review).  

  Regardless of whether this issue was properly preserved, the claim fails because Husband points to no evidence in the record indicating the value of the furniture Husband contends he was entitled to but did not receive.    Indeed, in neither the record nor Husband’s briefs submitted to this Court is there any mention of the type of furniture he claims or the size or number of the pieces.  The only statement is in Husband’s brief where he claims: “The Wife took what she wanted, . . . and left the Husband one room of furniture of the marital home that equaled Two Thousand Five Hundred Dollars ($2500.00). . .The Husband should receive a credit for the remaining rooms of furniture that he did not take delivery of in the amount of Five Thousand Two Hundred Fifty Dollars ($5250).”

For several reasons, this bare assertion fails to satisfy Husband’s burden of showing the family court erred.  First, as previously stated, this particular argument was not raised to the family court.  Secondly, there is no evidence in the Record on Appeal to support this claim.  Accordingly, this Court may not consider it in our review of this issue.  See Rule 210(h), SCACR (providing that appellate court review is limited to evidence contained within the Record on Appeal); see also Skinner v. King, 272 S.C. 520, 523, 252 S.E.2d 891, 892 (1979) (stating appellant has the burden of convincing this Court that the family court erred); Chanko v. Chanko, 327 S.C. 636, 643, 490 S.E.2d 630, 634 (Ct. App. 1997) (“A litigant who fails to offer proof on an issue may not be heard to complain about the court’s resolution of that issue.”).               

B.        Marital Debt and Expenses

Husband argues the family court improperly valued and inequitably apportioned various marital debts and expenses. 

In making an equitable apportionment, the family court should consider “. . . any other existing debts incurred by the parties or either of them during the course of the marriage[.]”  S.C. Code Ann. § 20-7-472(13) (Supp. 2003).  “ [S]ection 20-7-472 creates a presumption that a debt of either spouse incurred prior to marital litigation is a marital debt and must be factored in the totality of equitable apportionment.”  Hardy v. Hardy, 311 S.C. 433, 436, 429 S.E.2d 811, 813 (Ct. App. 1993).  “The presumption is rebuttable.”  Id.

(1)       Marital Debt 

The family court valued the marital debt at $15,145.41.  Although the court did not specify, this figure appears to be the aggregate balance of five credit cards. Husband argues this was error because the credit card statements Wife submitted at the final hearing were either out-of-date or inaccurate.  The record, however, contains no evidence reflecting what Husband claims to be the “correct” amount of credit card debt.  As such, we cannot find the court erred in accepting Wife’s valuation of the marital debt.  See Hardy, 311 S.C. at 437, 429 S.E.2d at 813-14  (holding the estate to be equitably divided by the family court is the net estate, i.e., provision for the payment of marital debts must be apportioned as well as the property itself; “basically the same rules of fairness and equity which apply to the equitable division of marital property also apply to the division of marital debts”); Honea v. Honea, 292 S.C. 456, 458, 357 S.E.2d 191, 192 (Ct. App. 1987) (stating the burden is on appellant to show the family court committed reversible error and a party cannot sit back at trial without offering proof, then come to the appellate court complaining of the insufficiency of evidence to support the family court’s findings); see also Cherry v. Thomasson, 276 S.C. 524, 525, 280 S.E.2d 541, 541 (1981) (holding an appellate court is not 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).

Husband next argues he should be credited for loans obtained by Wife that were collateralized by the marital 401(K) retirement savings account.  Husband claims the debt incurred through these loans should not be imputed to the marital estate because Wife forged his signature in order to obtain them.  While there is a mention of loans obtained by Wife in her testimony and Husband’s testimony in the record, no such loan is accounted for in the family court’s order.  Husband did not raise this issue in a motion pursuant to Rule 59(e), SCRCP.  Thus, this issue is not properly before this Court.  See Noisette v. Ismail, 304 S.C. 56, 58, 403 S.E.2d 122, 124 (1991) (holding an issue not preserved where the trial court does not explicitly rule on an argument and the appellant fails to make a Rule 59(e), SCRCP motion to alter or amend the judgment on that ground).   Furthermore, the record does not contain any documentary evidence concerning any loans. 

(2)       Marital Expenses

Husband also contends the family court erred by including Wife’s claim of $2,800 for expenses incurred in the sale of the marital home, arguing these expenses were unsubstantiated and unjustified. [2]  

Pursuant to the settlement order entered on July 21, 2001, the parties were directed to equally divide the proceeds from the sale of the marital home.  Prior to the sale of the home, Wife paid for home repairs, painting, yard work, and cleaning.  The $2,800 figure appears to be the amount charged for minor home repairs itemized on a bill from a handyman service that is included in the record before us.   

Beyond Husband’s assertion in his brief that the $2,800 repair expense “was completely unjustified, unneeded and uncorroborated by a[] Real Estate Agent” and was undertaken “without Husband[’]s knowledge or approval,” Husband offered no evidence that the division of that expense equally between the parties was improper or without foundation.  Based on our review of the record, we find no error in the family court’s inclusion of the home repair bill given the expenses were incurred in preparation for the sale of the marital home.   See Hardy, 311 S.C. at 436-37, 429 S.E.2d at 813 (“‘[M]arital debt’ is debt incurred for the joint benefit of the parties regardless of whether the parties are legally jointly liable for the debt or whether one party is legally individually liable.”); Jenkins v. Jenkins, 345 S.C. 88, 103, 545 S.E.2d 531, 539 (Ct. App. 2001) (“Debts incurred for marital purposes are subject to equitable distribution.”); McElveen v. McElveen, 332 S.C. 583, 605, 506 S.E.2d 1, 12 (Ct. App. 1998) (stating appellant bears burden of convincing the appellate court that the family court erred).  Moreover, to the extent Husband challenges the amount of the home repair bill, we find the evidence in the record supports the family court’s decision. See Roe v. Roe, 311 S.C. 471, 478, 429 S.E.2d 830, 835 (Ct. App. 1993) (finding family court did not abuse its discretion where valuation of marital property was supported by the evidence); see also Toler v. Toler, 292 S.C. 374, 379, 356 S.E.2d 429, 432 (Ct. App. 1987) (“In the absence of contrary evidence, the court should have accepted the value the parties assigned to” a marital asset.).   

C.        Inclusion of IRA as Marital Property

The family court included Husband’s IRA as a part of the marital estate and accordingly apportioned its value in equal shares to the parties.   Husband asserts the IRA should not be included as marital property because he purchased the IRA in 1983, approximately four years prior to the marriage and never made any deposits or withdrawals from the account during the marriage. 

There is no evidence, however, this argument was raised to the court below or that the court’s inclusion of the IRA as marital property was in any way challenged prior to this appeal.  This issue is, therefore, not properly before this Court. See Creech v. South Carolina Wildlife & Marine Resources Dep’t, 328 S.C. 24, 33-34, 491 S.E.2d 571, 576 (1997) (holding that an issue cannot be raised for the first time on appeal, but must have been raised to and ruled upon by the trial court to be preserved for appellate review); see also I’On, L.L.C. v. Town of Mt. Pleasant, 338 S.C. 406, 422, 526 S.E.2d 716, 724 (2000) (opining that error preservation requirements are intended “to enable the lower court to rule properly after it has considered all relevant facts, law, and arguments”).

CONCLUSION

Husband and Wife have both failed to preserve these arguments for appeal or have failed to present sufficient proof to warrant disturbing the family court’s valuation and distribution of marital property.  Accordingly, the decision of the family court is

AFFIRMED.

GOOLSBY and ANDERSON, JJ., and CURETON, AJ., concur.


[1]   Due to the quality of the photocopy, the date on the account is not entirely clear.  However, it appears June 30, 2000, is the actual date based on the facts set forth in Wife’s brief. 

[2]    The family court awarded a total of $3,337.76 for repair and maintenance expenses incurred in connection with the sale of the house.