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2004-UP-429 - Jennings v. Jennings

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals


D. Ann Jennings, Appellant,

v.

William B. Jennings, Respondent.


Appeal From Lexington County
 Richard W. Chewning, III, Family Court Judge


Unpublished Opinion No. 2004-UP-429
Submitted April 6, 2004 – Filed July 9, 2004


AFFIRMED AS MODIFIED


J. Michael Taylor, of Columbia, for Appellant.

W. Michael Duncan, of Columbia, for Respondent.

PER CURIAM:  The family court granted Ann Jennings (Wife) a divorce from William Jennings (Husband) on the ground of adultery.  Wife appeals the alimony award, equitable division of marital property, and imputation of income to Wife.  We affirm as modified. [1]

FACTS

Husband and Wife married in June 1982 and separated nearly eighteen years later in May 2000. [2]   Wife filed for temporary relief, and she was granted use of the home (though Husband made mortgage payments) and temporary alimony of $500 per month.  After discovery was conducted, it was revealed that Husband had committed adultery.  Wife filed an amended complaint, seeking a divorce on the grounds of adultery or one year’s continuous separation. 

In the final order, the family court granted Wife a divorce on the ground of Husband’s adultery.  The court also imputed income to Wife and awarded her $400 per month in temporary alimony for eight years.  The court then equitably apportioned the marital property between the parties.  Wife received:  one-third of the General Electric stock held in Husband’s name; one-half of Husband’s Janus account; one-half of Husband’s retirement account; a 1991 Buick; and a payment of $2,200 from Husband for her half interest in the parties’ timeshare.  Husband received:  one-half of the Janus and retirement accounts; various items of personal property; the timeshare; and a 1998 Ford.  The court found the parties’ home was titled in Wife’s name, ordered Wife to assume the mortgage payments, and awarded Husband special equity in the amount of $65,250 from Wife.  

After Wife filed a motion for reconsideration pursuant to Rule 59(e), SCRCP, the family court maintained the amount of Wife’s alimony but changed it to permanent periodic alimony.  The court did not change any other portions of the prior order.  Wife appeals. 

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 family court 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.       Alimony

Wife argues the family court erred in imputing income to her when determining the alimony award.  She further argues the court erred in awarding her only $400 in monthly alimony. 

A.      Imputation of Income

Wife argues the family court erred in imputing income to her because she is unable to work as a result of being afflicted with Raynaud’s Disease. 

“Alimony is a substitute for the support that is normally incident to the marital relationship.”  McElveen v. McElveen, 332 S.C. 583, 599, 506 S.E.2d 1, 9 (Ct. App. 1998).  The purpose of alimony is to place the supported spouse in the position he or she enjoyed during the marriage.  Id.  However, alimony should not “serve as a disincentive for spouses to improve their employment potential or to dissuade them from providing, to the extent possible, for their own support.”  Id.  In making an award of alimony, the family court must consider several factors, including each party’s earning potential and reasonably anticipated income.  S.C. Code Ann. § 20-3-130(C)(4), (6) (Supp. 2003) (“In making an award of alimony or separate maintenance and support, the court must consider and give weight in such proportion as it finds appropriate to all of the following factors: . . . (4) the employment history and earning potential of each spouse; . . . (6) the current and reasonably anticipated earnings of both spouses. . . .”).

In McElveen, the wife testified that she was not sure she could work full-time due to her fibromyalgia, and she did not feel she could return to work until her children were grown and the house was organized.  This court noted there was no medical evidence in the record establishing the wife’s condition precluded her employment and that, in fact, the wife pointed to non-medical reasons to delay her return to work.  McElveen, 332 S.C. at 600, 506 S.E.2d at 9-10. 

In the present case, Wife had several part-time jobs during the marriage, including her job driving for the Commission for the Blind at the time of the hearing.  Wife testified that she suffered from Raynaud’s Disease, [3] which caused severe migraines lasting up to three days, upon exposure to cold temperatures or stress.  Thus, Wife explained that the only reason she was able to work her part-time job driving for the Commission for the Blind is because she was not depended upon and could call in sick at any time.

In the final order, the family court considered Wife’s health, but noted that no medical evidence was presented regarding any ailment that prevented her from working.  The court specifically found that Wife was “physically and mentally capable of working full time.”  The court essentially found that Wife was underemployed and imputed a monthly income of $885.  The sum of $885 per month resulted from Wife earning minimum wage while working forty hours per week.  

As in McElveen, Wife’s testimony in the present case that she could not work due to her illness was not supported by any medical evidence.  Sections 20-3-130(C)(4) and (C)(6) require the family court to consider each party’s earning potential and reasonably anticipated income.  S.C. Code Ann. § 20-3-130(C) (Supp. 2003).  Because there was no evidence to support a finding that Wife could not work due to her illness and Wife was working a part-time job at the time of the final hearing, we find the family court did not commit an abuse of discretion in considering Wife’s earning potential and in imputing income to her.   

B.      Amount of Alimony

Wife argues her $400 periodic alimony award was inadequate because the family court did not achieve the desired objective of placing her close to the economic position she enjoyed during the couple’s marriage.  We agree that the court failed to provide adequate alimony to Wife. 

An award of alimony rests within the sound discretion of the family court and will not be disturbed absent an abuse of discretion.  Allen v. Allen, 347 S.C. 177, 184, 554 S.E.2d 421, 424 (Ct. App. 2001).  Factors to be considered in making an alimony award include:  (1) duration of the marriage; (2) physical and emotional health of the parties; (3) educational background of the parties; (4) employment history and earning potential of the parties; (5) standard of living during the marriage; (6) current and reasonably anticipated earnings of the parties; (7) current and reasonably anticipated expenses of the parties; (8) marital and non-marital properties of the parties; (9) custody of children; (10) marital misconduct or fault; (11) tax consequences; (12) prior support obligations; and (13) other factors the court considers relevant.  S.C. Code Ann. § 20-3-130(C) (Supp. 2003). 

At the time of the trial, Wife was sixty-one years old and did not have a high school diploma.  Wife brought a pre-marital estate of $250,000 into the marriage.  Wife stated the couple enjoyed a “comfortable lifestyle” that included annual out-of-state vacations and a timeshare in Myrtle Beach.   Shortly after the parties married, Wife purchased and operated a dry-cleaning business until she sold it in 1986.  As previously discussed, Wife testified that she suffered from Raynaud’s Disease, but she held several part-time jobs during the marriage.  However, at the request of Husband, Wife never obtained a permanent, full-time job after selling her dry-cleaning business in 1986.

Wife received $258.33 in gross monthly income from her part-time job, and she expected to begin receiving Social Security income in the amount of $483 per month upon reaching the age of sixty-two.  Wife listed $2,808 in expenses on her financial declaration, which included the $943 mortgage payment made by Husband. 

At the time of the final hearing, Husband was fifty-seven years old, had two years of a college education, and the family court found he had a gross monthly income of $5,176, and a net monthly income of $3,710. [4]   He had $3,173.83 in monthly expenses, including paying $500 in alimony pursuant to the temporary order and paying the mortgage on Wife’s house.  Although Husband denied he had an affair during the marriage, he admitted he had a close secret friendship with one woman during the marriage and a sexual relationship with another woman after the parties separated.

In awarding $400 in monthly alimony, the family court noted that it considered all the relevant factors set forth in section 20-3-130(C).  The order specifically noted the parties’ ages, Husband’s income, Wife’s ability to work, and Wife’s expectation of Social Security benefits.  Although not discussed in the paragraph dealing with alimony, the court mentioned other facts that are statutory considerations in section 20-3-130(C): the duration of the marriage, Husband’s marital misconduct, and marital and non-marital properties.

Reviewing the order shows that the family court considered many of the factors relevant to an alimony award.  However, we do not believe the court provided an adequate award of alimony to Wife. 

The order provided that Wife would be responsible for the $943 mortgage payment on her home, leaving her with expenses of $2,808.  Including the imputed minimum wage income of $885 and the Social Security income of $483, Wife’s total income would be $1,368. [5]   This would leave her with a monthly deficit of $1,440.  Including the $400 in alimony awarded by the family court, Wife will still have a deficit of $1,040. 

Husband, on the other hand, listed a gross monthly income of $5,176, and a net monthly income of $3,710.35.  Reducing his $3,173.83 in expenses by the $943 mortgage payment assumed by Wife and the $500 temporary alimony payment, Husband had expenses of $1,730.83.  Thus, after paying his expenses and before calculating any alimony award, Husband would have $1,979.52 in surplus funds. 

Considering the significant drop in Wife’s standard of living, Wife’s expenses, Husband’s income, and Husband’s infidelity, we find the family court erred in only awarding $400 in alimony to Wife.  We modify the award and order Husband to pay Wife $900 in alimony beginning with the month of August 2004.  See Morris v. Morris, 335 S.C. 525, 533, 517 S.E.2d 720, 724 (Ct. App. 1999) (finding that even though the family court applied the factors relevant to an alimony award, the award was inadequate in light of the husband’s significant income, the drop in the wife’s standard of living, and the husband’s adultery). 

II.      Apportionment of Property

Wife argues the family court erred in apportioning the property.  She argues the method used by the court to determine Husband’s interest in the home was erroneous and the $62,250 award of special equity to Husband was excessive. [6]   She further argues the court erred in dividing up various other items of personal property, including the timeshare and the porch furniture.

The apportionment of marital property will not be disturbed on appeal absent an abuse of discretion.  Bungener v. Bungener, 291 S.C. 247, 251, 353 S.E.2d 147, 150 (Ct. App. 1987).  Section 20-7-472 lists fifteen factors for the court to consider in equitably apportioning a marital estate.  S.C. Code Ann. § 20-7-472 (Supp. 2003); Greene v. Greene, 351 S.C. 329, 340, 569 S.E.2d 393, 399 (Ct. App. 2002).  “Although nonmarital property is not subject to equitable distribution as such, . . . the family court may properly award the other spouse a special equity in the property.”  Greene, 352 S.C. at 337, 569 S.E.2d at 398.  A spouse has an equitable interest in improvements to property to which he or she has contributed, even if the property is nonmarital.  Johnson v. Johnson, 296 S.C. 289, 299, 372 S.E.2d 107, 113 (Ct. App. 1988).  On appeal, this court looks to the overall fairness of the apportionment.  Id. at 300, 372 S.E.2d at 113.  If the end result is equitable, it is irrelevant that the appellate court would have arrived at a different apportionment.  Id. 

Wife complains the family court erred in calculating the amount of Husband’s special equity.  Wife provided $99,525.28 of her personal, non-marital funds towards the construction of the parties’ home such that only an $85,000 mortgage was needed.  The house was titled in Wife’s name, and the mortgage was jointly titled in both parties’ names.  At the time of the final hearing, the balance due on the mortgage was $40,949.44.  The parties do not dispute that Husband made all of the mortgage payments on the house, amounting to $130,500.

Wife introduced an appraisal valuing the home at $240,000.  Husband’s appraisal indicated the home was valued at $270,000.  The family court adopted Husband’s valuation, and, after subtracting the amount remaining on the mortgage, the family court determined the house had a net equity of $229,000.  To determine the amount of equity due to Husband, the court considered two methods of calculation.  First, Wife’s separate, non-marital contribution to the acquisition of the home was subtracted from the net equity, which resulted in $129,000 of equity to be divided between the parties.  Second, the court considered the $130,500 Husband made in total mortgage payments as equity to be divided equally between the parties.  The court adopted the second method of valuation and determined Husband was due $65,250 in special equity from Wife.  

Wife argues this method of calculating Husband’s special equity interest in the home was erroneous because the marital portion of the net equity in the home was only 30.68 [7] percent.  Thus, she asserts only $70,272.71 [8] of the equity was marital and Husband was only entitled to $35,136.35.

Although the family court used an unusual method to calculate Husband’s special equity, we find no error with the fairness of the apportionment.  There is no set formula to assist the court in dividing property.  See, e.g., Smith v. Smith, 294 S.C. 194, 198, 363 S.E.2d 404, 407 (Ct. App. 1987) (“In valuing marital assets, the trial court ‘is fully within its discretion to choose the valuations of one party over those of the other party.’”).  Further, Husband paid all of the mortgage payments on Wife’s home.  Husband’s special equity award only amounted to 28.5 percent of the net equity of the home.  Because we find the special equity award to be fair, the family court did not abuse its discretion in determining Husband’s special equity in Wife’s home. 

Further, we find no error with the court’s determination that Husband was entitled to the timeshare and various personal property items, including the porch furniture.  With the exception of the General Electric stock, of which Wife received one-third, the court awarded one-half of the marital assets to each party.  Husband was awarded the timeshare and ordered to pay Wife for her one-half interest in it.  An appraisal service listed over 200 items of personal property in Wife’s home with a total value of $14,457.  Husband indicated he wanted approximately fifty of those items, valued at $3,607, which included the porch furniture.  The court awarded Husband the items he requested.  Considering these facts, we find no abuse of discretion. 

CONCLUSION

The family court did not abuse its discretion in imputing income to Wife or awarding special equity to Husband.  However, the court erred in calculating the amount of the alimony award.  Accordingly, the family court’s order is

AFFIRMED AS MODIFIED.

HUFF and STILWELL, JJ. and CURETON, AJ., concur.


[1] We decide this case without oral argument pursuant to Rule 215, SCACR.

[2] No children were born as a result of this marriage.

[3] Raynaud’s Disease is defined as “a peripheral vascular disorder found most frequently in females between the ages of 18 and 30.  It is characterized by abnormal vasoconstriction of the extremities upon exposure to cold or emotional stress.”  Taber’s Cyclopedic Medical Dictionary 1563-64 (16th ed. 1989).

[4] Husband submitted a new financial declaration at the final hearing that is not included in the record.  He testified regarding his income and expenses and the family court adopted his amounts.   

[5] This assumption does not take into account the effect, if any, that a full-time income would have on Wife’s ability to continue receiving Social Security income.

[6] The family court found the home was titled solely in Wife’s name and awarded Husband special equity in the home.  Although the court did not specifically find that the home was Wife’s nonmarital property, it was treated as such and the parties do not dispute that it was nonmarital.  Husband, however, argues on appeal that the house was transmuted into marital property.  The issue of transmutation was not raised to or ruled upon by the family court judge and, thus, is not preserved for review.  McDavid v. McDavid, 333 S.C. 490, 497, 511 S.E.2d 365, 368-69 (1999) (holding an issue not raised to or ruled on by the family court should not be considered by the appellate court).  Accordingly, we proceed as if the home is non-marital property. 

[7] Wife arrives at this percentage using a cost approach.  She adds her contributions to the house to the amount the mortgage had been paid to obtain the “total cost” of the house: $99,525.28 + $44,050.56 = $143,575.84.  She then finds that the amount the mortgage had been paid, or $44,050.56, was 30.68 percent of the total cost, and this equaled the percentage to be used to calculate the amount of marital equity. 

[8] Wife arrives at the equity in the home by subtracting the amount the mortgage had been paid from the value of the home:  $270,000 - $40,949.44= $229,050.56.