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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
Estate of Mary Emma Good Strickland, by and through her Personal Representative, Alexandria B. Skinner, Appellant,
v.
The Estate of Lloyd Joseph Strickland, by and through his Personal Representative, Sandra S. Kelly, and Sandra S. Kelly, Individually, Respondent.
Appeal From Richland County
Berry L. Mobley, Family Court Judge
Unpublished Opinion No. 2005-UP-077
Heard December 8, 2004 – Filed February
4, 2005
AFFIRMED
Jan L. Warner, of Columbia, for Appellant.
J. Mark Taylor, of West Columbia, for Respondent.
PER CURIAM: This is an appeal from the identification of marital property and apportionment of the marital estate. We affirm.
FACTS
Lloyd and Emma Strickland were married in 1966. It was the third marriage for both. They remained married and lived together until 1999 when Lloyd suffered a series of falls. As a result of these falls, Lloyd was moved to an assisted living facility near the family home. The decision to place Lloyd in an assisted living facility was made by Sandra Kelly, his daughter and attorney-in-fact.
After Lloyd was placed in the assisted living facility, his daughter contributed $300 per month as support to Emma and continued paying certain bills. By March 2000, Emma was no longer able to care for herself and was moved to a nursing home in Columbia by Alexandria Skinner, her granddaughter and attorney-in-fact. In May of 2000, Kelly had her father moved to a nursing facility near her home in California.
On June 9, 2000 Skinner, as attorney-in-fact for the Wife, filed this action in the family court. She named Kelly, individually and as the Husband’s attorney-in-fact, as a defendant as well as the Husband. Skinner complained that Lloyd was not adequately providing for Emma’s expenses and sought equitable division of the marital estate. She requested a restraining order to preserve the Husband’s assets, an order of separate support and maintenance, equitable distribution, and attorney’s fees.
The Husband died three weeks later on June 30, 2000. He was 91 years old. The Wife died on June 25, 2001. She was 85. After the death of the Wife, Lloyd’s estate moved for dismissal of the action for lack of subject matter jurisdiction. The motion was denied. The action proceeded with the estates of the Husband and Wife substituted as parties, with Skinner as the personal representative of the estate of the Wife and Kelly as the personal representative of the estate of the Husband.
After a complex procedural history, a final hearing was held and the family court heard testimony from Skinner, Kelly, and Mark T. Hobbes, a certified public accountant. The court found assets in the Husband’s name were valued at $512,251.66 and the assets in the Wife’s name were valued at $519,309.00 as of the time of the filing of this action. The court determined the entire amount was deemed marital property. It ordered equal equitable distribution of the marital estate, which caused the Wife’s estate to owe $3,528.50 to the Husband’s estate. Following the family court’s denial of her motion to reconsider, the Wife’s estate appealed to this court.
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). However, this broad scope of review does not require us to disregard the findings of the family court. Greene v. Greene, 351 S.C. 329, 335, 569 S.E.2d 393, 397 (Ct. App. 2002). We are mindful 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. Miles v. Miles, 355 S.C. 511, 516, 586 S.E.2d 136, 139 (Ct. App. 2003).
The family court has broad discretion in determining how marital property is to be valued and distributed. Murphy v. Murphy, 319 S.C. 324, 329, 461 S.E.2d 39, 41 (1995). Therefore, the family court may use any reasonable means to divide the property equitably, and its judgment will only be disturbed where abuse of discretion is found. Id. at 329, 461 S.E.2d at 41-42.
LAW/ANALYSIS
The Wife’s estate argues the family court erred in finding all of the assets titled in her name were marital property. We disagree. [1]
Marital property is defined as all real and personal property acquired by the parties during the marriage that is owned as of the date of filing or commencement of marital litigation, regardless of how legal title is held. S.C. Code Ann. § 20-7-473 (Supp. 2004). Generally, property acquired by either party before the marriage constitutes nonmarital property. However, nonmarital property may be transmuted into marital property. § 20-7-473(2). Whether property has been transmuted is a matter of intent to be gleaned from the facts of each case. Hatfield v. Hatfield, 327 S.C. 360, 368, 489 S.E.2d 212, 217 (Ct. App. 1997). The party claiming the property was transmuted must produce objective evidence that during the marriage, the parties themselves regarded the property as common property. Id. This evidence may include: (1) placing the property in joint names; (2) transferring the property to the other spouse as a gift; (3) using the property exclusively for marital property; (4) commingling the property with marital property; (5) using marital funds to build equity in the property; or (6) exchanging the property for marital property. Id.
The Wife’s estate argues the marital residence in Summerville, South Carolina was not marital property because it was purchased from the proceeds of property the Wife had owned prior to the marriage. The family court determined the residence was transmuted because it had been commingled with the property of the parties. While the marital residence was only titled in the Wife’s name, we find sufficient evidence to support the family court’s conclusion that the property was transmuted. See Corbett v. Corbett, 313 S.C. 184, 187, 437 S.E.2d 136, 138 (Ct. App. 1993) (stating the manner in which title is held is irrelevant in determining whether property is marital). The residence was used exclusively as the marital home for eleven years. Additionally, evidence in the form of checks and notations showed that the Husband paid at least $36,000 towards satisfying the note on the house. This evidence demonstrates a specific intent by the parties to treat the marital residence as marital property.
The Wife’s estate asserts the family court should have excluded the checks showing Lloyd had retired $36,000 of the house debt because the Husband’s estate failed to produce them during discovery. First, we find this argument is not properly before this court because the Wife’s estate failed to include this issue in its statement of the issues on appeal. See Rule 208(b)(1)(B), SCACR (“Ordinarily, no point will be considered which is not set forth in the statement of the issues on appeal.”). Furthermore, we find no reversible error in the family court’s admission of the checks. The decision of what kind and whether to impose discovery sanctions is left to the sound discretion of the trial court. Fields v. Reg’l Med. Ctr. Orangeburg, 354 S.C. 445, 457, 581 S.E.2d 489, 495 (Ct. App. 2003). “In deciding what sanction to impose, the circuit court should weigh the nature of the interrogatories, the discovery posture of the case, willfulness, and the degree of prejudice.” Id. The burden is on the appealing party to show the trial court abused its discretion in its decision regarding the imposition of sanctions. Halverson v. Yawn, 328 S.C. 618, 621, 493 S.E.2d 883, 884 (Ct. App. 1997).
The attorney for the Wife’s estate explained that although Kelly had sent him copies of the checks, they were misplaced in a file. Additionally, while the checks themselves were not provided prior to trial, an exhibit list was exchanged the day prior to trial listing two checks regarding the marital residence. Although on appeal, the Wife’s estate argues that it was prejudiced by the failure to produce the copies of the checks because it was not given the opportunity to investigate the authenticity of the checks or whether they were used for the purposes asserted by the Husband’s estate, it failed to make this argument to the trial court. Accordingly, it is not preserved for our consideration. See Wilder Corp. v. Wilke, 330 S.C. 71, 76, 497 S.E.2d 731, 733 (1998) (“It is axiomatic that 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.”). Considering the Husband’s estate’s explanation that his failure to produce was by mistake rather than bad motive and the Wife’s estate’s failure to demonstrate prejudice, we hold the family court did not abuse its discretion in allowing the copies of the checks into evidence.
We also find that the family court did not err in including the other assets titled in the Wife’s name in the marital estate. Skinner did not dispute that the Husband had given her grandmother an annuity in 1994 in the sum of $277,300.00. The Wife had cashed this and added the proceeds to her assets. The Wife’s income included increased Social Security payments due to the Husband’s employment. In addition, as the Wife’s estate’s expert witness testified, the Wife expended considerable sums on household expenses in support of the marriage over the years. Thus, we conclude the family court did not err in valuing the marital estate at $1,031,561.00.
The Wife’s estate also argues the family court improperly apportioned the marital estate. We disagree.
The family court must consider fifteen factors and give each weight as it finds appropriate. S.C. Code Ann. § 20-7-472 (Supp. 2004). “On review, we look to the fairness of the overall apportionment; if the end result is equitable, it is irrelevant that we might have weighed specific factors differently than the family court.” Jenkins v. Jenkins, 345 S.C. 88, 100, 545 S.E.2d 531, 537 (Ct. App. 2001).
The Wife’s estate takes particular issue with the family court’s finding that the husband “had all earned income during the marriage while [the Wife] contributed passive income from alternative sources.” The Wife’s estate argues no evidence supports this finding. We hold the Wife’s estate has mischaracterized this finding. The family court did not belittle the Wife’s contributions to the marriage. It recognized that the wife had income from passive sources such as investments and social security and also contributed to the marriage as the primary homemaker, but also found she was not a wage-earner. Skinner acknowledged that her grandmother had not held outside employment during the course of her marriage to the Husband.
Although the evidence as to the Husband’s employment is sketchy, there is evidence in the record to support the family court’s determination that the Husband was the only wage earner. Kelly stated her father worked hard all of his life. The certified public accountant the Wife’s estate presented as an expert witness, Mark Thomas Hobbs, testified that the Wife’s social security income probably came from drawing upon the Husband’s social security. He acknowledged that the Husband’s higher social security income indicated outside employment. In addition, he recognized that the Husband had a pension income, which also indicated past outside employment.
We disagree with the Wife’s estate’s assertion that the Husband did not contribute to the marriage. Although Kelly recognized that her father was extremely frugal, there is no evidence in the record that he lived off of the Wife during the course of the marriage. Kelly testified the Husband paid certain household bills, including utilities, from his checking account and gave the Wife $300.00 a month for additional expenses. Kelly continued these payments after the Husband went into the assisted living facility. In addition, the Husband paid $36,000 toward the mortgage of the marital residence. Furthermore, at the time of the filing of the action, the Husband had assets in his name valued at $512,251.66. There is no indication in the record these assets came from the Wife. Instead, it is undisputed the Husband gave the Wife a $277,300.00 annuity.
In determining the parties were entitled to equal equitable apportionment of the marital estate, the family court carefully considered and set-down in its order its conclusions on the relevant factors. We find no error in this determination.
CONCLUSION
For the reasons discussed, the identification of marital property and apportionment ordered by the family court is
AFFIRMED.
HUFF, KITTREDGE, and BEATTY, JJ., concur.
[1] We note the unusual procedural history of this case and agree with the family court that the death of the parties does not terminate a proceeding regarding property rights because the court’s jurisdiction vested at the time the suit was filed. See Hodge v. Hodge, 305 S.C. 521, 524, 409 S.E.2d 436, 438 (Ct. App. 1991) (holding that upon the institution or filing of marital litigation, the marital estate vests and with respect to the equitable division of marital property, marital litigation is not abated by the death of a spouse). However, we are disconcerted that this action was initiated and litigated by the parties’ attorneys-in-fact and then the personal representatives of their estates when the parties themselves had not suffered from marital discord. Considering the aging population and the proliferation of second marriages, the possibility is increasing for marital litigation brought by the children from prior marriages of the parties. As the Wife’s counsel stated at oral argument, this type of litigation could be used by the children of one spouse to obtain a share of the other spouse’s non-probate assets, which are not eligible for an elective share. While we question whether such litigation is within the purpose of the family court’s jurisdiction, we must look to the legislature to place limits on that type of action.