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2005-UP-067 - Chisholm v. Chisholm

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

William Barry Chisholm,        Appellant/Respondent,

v.

Susan Elaine Chisholm,        Respondent/Appellant.


Appeal From Greenville County
R. Kinard Johnson, Jr., Family Court Judge


Unpublished Opinion No.  2005-UP-067
Heard November 16, 2004 – Filed January 25, 2005


AFFIRMED IN PART, REVERSED IN PART, AND REMANDED


Timothy E. Madden, of Greenville, for Appellant-Respondent.

David Alan Wilson and Kenneth C. Porter, both of Greenville, for Respondent-Appellant.

PER CURIAM:  This is a cross-appeal from a divorce action.  William Barry Chisholm, the husband, argues the family court erred in: (1) declining to grant him a divorce on the ground of adultery, (2) granting custody of the parties’ minor child to Susan Elaine Chisholm, the wife, (3) refusing to expand his visitation rights, (4) ordering him to bear sole financial responsibility for the child’s private school expenses, (5) finding a portion of an IRA was marital property, and (6) declining his request for attorney’s fees and awarding attorney’s fees to the wife.  The wife argues the family court erred in awarding the husband sole ownership of the marital home and in refusing to increase the marital estate by $10,000.00.  We affirm in part, reverse in part, and remand.

FACTS

The parties married in 1979.  Both were employed and had limited assets, including retirement funds.  Before the marriage, the husband purchased a home that would become the marital residence.  Two children were born of the marriage, one of whom was still a minor at the time of the final hearing.

In the spring of 2000, the wife reacquainted herself with a male friend from high school.  For several months, the wife, either directly or through the parties’ older child, communicated with this individual through letters, electronic mail, and telephone.  Eventually, the two revealed their mutual and long-standing affections for each other and, in August 2000, arranged a clandestine meeting at a motel, where they engaged in sexual relations with each other. 

For months, the wife concealed her adultery from the husband; however, tensions arose in the parties’ relationship, and she began acting erratic and unstable.  In October 2000, the wife was admitted to the hospital, where she was diagnosed with recurrent major depression and placed on medication.  After her release from the hospital, the parties resumed living together; however, they never really reconciled and tensions escalated. 

In July 2001, the husband filed for divorce on the ground of adultery. [1]   He also sought custody of the parties’ younger child and equitable apportionment of the marital property.  In her answer and counterclaim, the wife admitted adultery and sought custody.  At trial, both parties amended their pleadings to seek a no-fault divorce on the ground of a one year separation; however, the husband did not abandon the fault ground of adultery. 

After hearing evidence on the contested issues, the family court granted a no-fault divorce.  The wife received custody of the parties’ minor child, and the marital property was divided equally between the parties.  The husband received liberal visitation and was ordered to pay child support, including all private school expenses.  The family court granted the husband a special interest in the marital home and awarded attorney’s fees to the wife.  Both parties unsuccessfully filed post-trial motions under Rule 59(e) of the South Carolina Rules of Civil Procedure, and this appeal followed.

LAW/ANALYSIS

The Husband’s Appeal

1.  The husband argues the family court erred in granting a no-fault divorce instead of a divorce on the ground of adultery.  We disagree. 

“[A] divorce is not a prize given in recognition of a victory in a contest.” [2]   Here, assuming without deciding that the wife’s adultery was the immediate cause of the breakup of the marriage, the grant of a no-fault divorce did not prejudice the husband.  The wife had waived her right to seek alimony, and the family court stated it considered the wife’s admitted adultery and found her misconduct did not affect the economic condition of the parties. [3]   Furthermore, although the husband may be correct that the family court was able to grant a divorce on the ground of a one-year separation only because docket constraints prevented this matter from being heard at an earlier date, we fail to see how this circumstance would entitle him to a divorce on a fault ground.  Finally, the husband does not suggest that spiritual or other considerations proscribe him from obtaining a divorce on the ground of a one-year separation.

2.  Second, the husband contends the trial court erred in failing to award him custody of the parties’ minor child.  We find no reason to reverse the family court’s decision.

“The welfare of the child and what is in his/her best interest is the primary, paramount and controlling consideration of the court in all child custody controversies.” [4]   “However, where evidence is disputed [in a family court matter], the appellate court may adhere to the findings of the trial judge, who saw and heard the witnesses.” [5]   In particular, an appellate court “should be reluctant to substitute its own evaluation of the evidence on child custody for that of the trial court.” [6]   Our broad scope of review does not relieve an appellant of the burden to convince this court that the family court erred in its factual findings and conclusions. [7]

Here, the family court heard extensive testimony on the custody issue from the parties, mental health professionals, and the guardian ad litem.  Mental health professionals testified that, although the child would be fine with either parent, the wife had been his primary caregiver.  We hold the family court properly considered evidence on the strengths and weaknesses of each parent and therefore affirm the finding that the child’s best interests would be served by placing him in the wife’s custody. 

3.  Alternatively, the husband argues that if the family court’s decision regarding custody is affirmed, he is entitled to more extensive visitation.  We agree. 

“[V]isitation is addressed to the broad discretion of the family court.” [8]   Nevertheless, as with child custody, the welfare and best interests of the child are the primary considerations in determining visitation. [9]  

The family court initially granted the husband visitation in accordance with “Judge Brown’s Standard Visitation Order,” which was attached to and incorporated into the appealed order.  After the husband moved to alter or amend the judgment, the family court amended the order as follows:  “[The husband] shall have such additional visitation with the parties’ minor child, as the parties may agree.”  Notwithstanding this revision, we hold the evidence indicates the child’s best interests would be served by granting the husband specified visitation over and above what he would receive in a standard visitation order.  The husband had maintained an active role in the child’s life.  Furthermore, although the wife expressed a desire that the husband have liberal visitation with the child, it was evident that the parties did not communicate well.  We therefore remand the issue of visitation to the family court with directions to grant the husband liberal visitation at specified times.

4.  We agree with the husband that the family court erred in ordering him to bear sole financial responsibility for the child’s private school expenses without making an adjustment in his child support obligation. 

The husband maintained the child should continue to attend private school and testified that he would “do whatever it takes” to enable the child to maintain this privilege.  The wife, however, did not believe that private schooling was necessary.  We find it significant that the family court agreed with the husband that it was in the child’s best interest to remain in private school and that the wife did not appeal this finding.  Moreover, the record supports this determination.  In particular, we note (1) the child attended this particular school all his life and was already in high school when this case came to trial; and (2) the child had been diagnosed with ADHD, making a private school, with its smaller classes and more individualized attention, a preferable choice to a public school.

The child support guidelines require the parties to share in the support of a child proportionate to the income earned by each of them. [10]   In addition, the regulations expressly provide that payment of education expenses can be a possible reason for deviation from the child support guidelines. [11]   We therefore reverse the child support decision and remand this matter to the family court with instructions either to allocate the private school expenses between the parties on a pro rata basis or in the alternative to grant the husband a downward adjustment in his support obligation if he is ordered to pay more than his pro rata share of these expenses.

5.  The husband next argues $35,357 of an IRA was nonmarital property and thus improperly included in the marital estate.  We agree. 

Property acquired by either party prior to the marriage is generally nonmarital property. [12]   In some circumstances, however, nonmarital property may be transmuted into marital property if (1) it becomes so commingled with marital property as to be untraceable; (2) it is jointly titled; or (3) it is utilized by the parties in support of the marriage or in some other manner so as to evidence an intent by the parties to make it marital property. [13]   “Transmutation is a matter of intent to be gleaned from the facts of each case, and the spouse claiming transmutation must produce objective evidence showing that, during the marriage, the parties themselves regarded the property as the common property of the marriage.” [14]  

The husband testified in detail about the retirement assets he owned at the time of the marriage, the manner in which they were invested, the records he maintained during the marriage, and the mathematical computation of the premarital component of his IRA, with growth on that portion during the marriage.  Moreover, notwithstanding the commingling and the fact that the husband managed the wife’s retirement funds as well as his own, we hold the wife failed to make a prima facie case that the parties themselves regarded the funds as the common property of the marriage. [15]  

Finally, the husband argues the family court erred in awarding attorney’s fees to the wife and in denying attorney’s fees to him.  In view of the beneficial results obtained by the husband in this appeal, we remand this issue to the family court for further consideration. [16]

The Wife’s Appeal

1.  The wife argues the family court erred in awarding the husband sole ownership of the marital home after finding the home was transmuted into marital property.  We disagree.    

“A family court may grant a spouse title to the marital home as part of the equitable distribution.” [17]   The family court, in dividing the marital assets, “must give weight in such proportion as it finds appropriate to all of the following factors [including] the desirability of awarding the family home as part of [the] equitable distribution.” [18]  

On review, this court looks to the fairness of the overall apportionment, and if the end result is equitable, the fact that this court might have weighed specific factors differently than did the trial court is irrelevant. [19]   This court will affirm an equitable apportionment if it is apparent that the family court was cognizant of the statutory factors. [20]  

The family court found the husband had a “special equity” in the marital residence because he paid a $25,000 down payment on the home before the marriage, had funds available to pay the full purchase price, and used those funds to pay the debt within five years.  Although the residence was valued at $295,000, the total equity was only $75,500.  In addition, the husband assumed sole responsibility for all indebtedness under the order.  In view of these factors, we hold the decision to award ownership of the marital residence to the husband is fair and equitable.

2.  The wife also argues the family court should have included as a marital asset $10,000 that the husband withdrew from a marital account shortly before commencing this litigation.  We disagree.  The wife alleges the funds were withdrawn in contemplation of the divorce action; however, the husband, although acknowledging that he paid his attorney a retainer fee of $10,000, never admitted that the money taken from the account was used for this purpose, suggesting instead that it may have been spent on their child’s private school tuition.  No documentation, such as a cancelled check, was provided to enable the family court to determine whether or not the husband had improperly liquidated this asset.  Having been provided with no plausible explanation as to why the wife could not have procured such evidence herself, we are reluctant to disturb the family court’s refusal to find the funds in dispute are part of the marital estate. [21]

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

HEARN, C.J., and GOOLSBY and WILLIAMS, JJ., concur.


[1]   Although the wife confessed her affair and already had her emotional breakdown, the husband waited until their older child graduated before seeking a divorce.

[2]   Miles v. Miles, 303 S.C. 33, 35, 397 S.E.2d 790, 791 (Ct. App. 1990); see also Smith v. Smith, 294 S.C. 194, 197, 363 S.E.2d 404, 406 (Ct. App. 1987) (rejecting a husband’s contention that he should have been awarded a divorce on his counterclaim when his wife received a divorce on the ground of a one-year separation and noting that the granting of a divorce to the husband on the ground of adultery would not have dissolved the marriage any more completely).

[3]   See Woodside v. Woodside, 290 S.C. 366, 374, 350 S.E.2d 407, 412 (Ct. App. 1990) (stating that a spouse’s marital misconduct becomes important in equitable distribution only when “the conduct . . . is such that it throws upon the other party marital burdens beyond the norms to be expected in the marital relationship”).

[4]   Cook v. Cobb, 271 S.C. 136, 140, 245 S.E.2d 612, 614 (1978).

[5]   Woodall v. Woodall, 322 S.C. 7, 10, 471 S.E.2d 154, 157 (1996).

[6]   Id. at 10, 471 S.E.2d at 157. 

[7]   Skinner v. King, 272 S.C. 520, 522-23, 252 S.E.2d 891, 892 (1979). 

[8]   Paparella v. Paparella, 340 S.C. 186, 191, 531 S.E.2d 297, 300 (Ct. App. 2000).

[9]   Woodall, 322 S.C. at 12, 471 S.E.2d at 158.

[10] 27 S.C. Code Ann. Regs. 114-4710 and -4750 (Supp. 2004).

[11] See id. 114-4710B(1) (stating “[e]ducational expenses for the child(ren) . . . (i.e., those incurred for private, parochial, or trade schools, other secondary schools, or post-secondary education where there is tuition or related costs)” can be “[a] possible reason[ ] for deviation”).

[12] S.C. Code Ann. § 20-70-473(2) (Supp. 2004).

[13] Greene v. Greene, 351 S.C. 329, 338, 569 S.E.2d 393, 398 (Ct. App. 2002), cert. denied (June 12, 2003).

[14] Widman v. Widman, 348 S.C. 97, 117, 557 S.E.2d 693, 703-04 (Ct. App. 2001).

[15] See Wannamaker v. Wannamaker, 305 S.C. 36, 40, 406 S.E.2d 180, 182 (Ct. App. 1991) (“[T]he mere commingling of funds does not automatically make them marital funds.”).

[16] See Sexton v. Sexton, 310 S.C. 501, 503, 427 S.E.2d 665, 666 (1993) (wherein the supreme court reversed this court’s affirmance of an attorney’s fee award in a divorce case, noting that the petitioner prevailed on numerous issues when the court of appeals decided the matter).

[17] Craig v. Craig, 358 S.C. 548, 558, 595 S.E.2d 837, 841 (Ct. App. 2004). 

[18] S.C. Code Ann. § 20-7-472(10) (Supp. 2004).

[19] Johnson v. Johnson, 296 S.C. 289, 300, 372 S.E.2d 107, 113 (Ct. App. 1988).

[20] Doe v. Doe, 324 S.C. 492, 502, 478 S.E.2d 854, 859 (Ct. App. 1996). 

[21] See Cherry v. Thomasson, 276 S.C. 524, 525, 280 S.E.2d 541, 541 (1981) (stating that, notwithstanding the scope of review in an equity matter, an appellate court is not required “to disregard the findings below nor ignore the better vantage point the trial judge occupies in determining witness credibility” and “[t]he burden is upon the appellant to convince this Court that the trial judge erred in his findings of fact”).