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2005-UP-428 - Harrison v. Harrison

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


Robertha Harrison,        Respondent,

v.

Eddie L. Harrison, Sr.,        Appellant.


Appeal From Clarendon County
R. Wright Turbeville, Family Court Judge


Unpublished Opinion No. 2005-UP-428
Submitted June 1, 2005 – Filed July 5, 2005


AFFIRMED


Steven Smith McKenzie, of Manning, for Appellant.

Charles Thomas Brooks, of Sumter, for Respondent.

PER CURIAM:  In this divorce action, Eddie L. Harrison, Sr. (Husband) appeals the grant of a divorce to Robertha Harrison (Wife) on the ground of habitual drunkenness, the failure of family court to award an in-kind distribution of certain marital assets, and the family court’s determination that he was entitled to only 25 per cent of the marital estate.  Husband also alleges the family court failed to divide an asset that was found to have been transmuted into marital property.  We affirm.[1]

FACTS

The parties married in 1971.  At the time of the final hearing, all three children born of the marriage were emancipated.  During the first ten and a half years of the marriage, Wife worked as a teacher’s aide and school bus driver.  She later returned to school, obtaining an undergraduate degree from Francis Marion College in 1988 and a master’s degree from the University of South Carolina in 1994.  At the time of the final hearing, she was teaching first grade and was forty hours from obtaining a doctorate degree in education.  Husband worked as a maintenance supervisor in the hotel industry for the past 32 years.  Husband earned more income than did Wife until her graduation from college. 

On August 29, 2002, Wife filed for divorce on the grounds of physical cruelty and habitual drunkenness.  She also sought an equitable division of the marital property.  Husband answered and counterclaimed for separate support and maintenance and an equitable division of the marital property.

The family court granted Wife a divorce on the ground of habitual drunkenness, finding Husband’s condition “led to the breakup of the marriage” and “adversely affected the parties’ financial condition.”  In addition, the family court found the following items were marital property: “[R]eal estate located at 1272 Newman Branch Road . . . valued at $8,400.00; real estate located at 1370 Newman Branch Road . . . valued at $52,000.00; [Wife’s] retirement account valued at $45,000.00; Safe Federal Credit Union account balance  . . . valued at $8,791.13” and various vehicles valued at a total of $24,850.00, bringing the total value of the marital estate to $139,041.13.  After considering Wife’s earnings over the course of the marriage of $459,692.00 or 62.5 per cent, Husband’s earnings of $275,899.00 or 37.5 per cent, and other statutory factors, including Husband’s marital misconduct, the family court awarded Wife 75 per cent of the marital estate and Husband 25 per cent of the marital estate.  With respect to the equitable division, the family court divided all the assets in-kind except for the marital home, which was to be sold with the proceeds divided in proportion to the allocation.  In addition, Wife was to pay $13,170.00 from her portion of the proceeds to Husband to effectuate the final division.  This appeal followed.

LAW/ANALYSIS

1.  Husband first contends the family court erred in finding Wife was entitled to a divorce on the ground of habitual drunkenness.  We disagree.

Wife testified that, about nine years before the final hearing, Husband would leave the house on Fridays, Saturdays, and Sundays and come back “in a rage for some reason.”  She further testified that, just before the parties separated, Husband would do this five to six days a week, coming home drunk between ten and eleven o’clock at night from his job and then questioning her about who had been at the house.  Wife also stated Husband would not allow her to sleep whenever he came in drunk.  Specifically, she noted that (1) when Husband came in drunk, he would “rant and rave, slam, knock things down until he gets tired and goes to sleep”; (2) if she attempted to go outside to avoid the situation, Husband would follow her; (3) if she sought refuge in her car, Husband would threaten to burn the car up; and (4) when she stayed in the house, Husband would follow her into every room and not allow her to sit in a chair or lie in a bed to sleep.  Husband’s behavior when drunk negatively affected Wife’s job because she had to rise early to go to work.  We hold this evidence is sufficient to support the grant of a divorce to Wife on the ground of habitual drunkenness.[2]

2.  We reject Husband’s argument that the family court erred in failing to award an in-kind distribution of the marital property. 

The only asset not divided in-kind was the former marital residence at 1272 Newman Branch Road, which was to be sold and the proceeds divided between the parties according to percentage each was to receive in the equitable division.  This asset was valued at $52,000.00, which far exceeded the value of Husband’s award in the marital estate.  The family court was aware of Husband’s preference to have the home awarded to him in the distribution and asked Husband’s attorney:  “If he had to pay her some money, some equity to get the marital home would he have the means to do that?”  Because it appears the Husband had no cash assets of his own and because Wife received all the cash assets in the equitable distribution, we hold the family court’s decision to order a sale of the marital residence was proper in view of the court’s inquiry and the attendant circumstances.[3]

3.  Husband next challenges the family court’s decision to award him only 25 per cent of the marital assets.  We find no abuse of discretion.[4]

Here, the family court set forth several reasons to support the percentage in the marital estate that it awarded each party, namely (1) Husband’s misconduct throughout the marriage, both with regard to his habitual drunkenness and infliction of physical abuse; (2) the fact that over the course of the marriage Wife earned 62.5 per cent of the parties’ total income; and (3) the recognition that two of the assets in the marital estate, the property at 1272 Newman Branch Road and a Black Farmers’ Settlement, had originally been received by Wife.  Husband argues the family court failed to consider the length of the marriage, the fact that Wife earns almost twice what he earns, the fact that he was the primary breadwinner during the early part of the marriage, and the fact that Wife had retirement benefits and he did not.  The family court, however, stated it applied all the statutory criteria for deciding how to apportion the marital estate; and, although reasonable minds may differ as to what weight should be given to the factors cited by Husband, we, as an appellate court, cannot say the family court failed to give these factors proper consideration.[5] 

4.  Finally, Husband claims the family court neglected to divide the $50,000 Black Farmer’s Settlement.  We disagree.

The record shows Wife deposited the funds into the parties’ Safe Credit Union account on July 21, 2000.  In addition, Wife testified that the parties had spent most of the money to pay off debts, remodel their home, repair one of Husband’s vehicles, and help their children.  In addition, she estimated that only about four or five thousand dollars was left of the settlement when she filed for divorce.  Based on these statements and the other evidence of record, it is reasonable to infer that what remained of the settlement was in the Safe Credit Union account, which the family court included as an asset in the marital estate and divided accordingly. 

AFFIRMED.

GOOLSBY, HUFF, and KITTREDGE, JJ., concur.


[1]  Because oral argument would not aid the court in resolving the issues on appeal, we decide this case without oral argument pursuant to Rule 215, SCACR.

[2]  See Fisher v. Fisher, 276 S.C. 375, 377, 278 S.E.2d 780, 781 (1981) (holding the wife established a prima facie case of habitual drunkenness by proving the husband drank every weekend and frequently during the week); Rooney v. Rooney, 242 S.C. 503, 505, 131 S.E.2d 618, 619 (1963) (noting habitual drunkenness as the fixed habit of getting drunk; but it does not imply continual drunkenness); Simonds v. Simonds, 229 S.C. 376, 384, 93 S.E.2d 107, 110 (1956) (“[I]n order that a divorce may be granted on the ground of habitual drunkenness, such must exist at or near the time of the filing of the action for a divorce.”).

[3]  See S.C. Code Ann. § 20-7-476 (Supp. 2004) (authorizing the family court to sell property to effect an equitable apportionment); Stevenson v. Stevenson, 295 S.C. 412, 415, 368 S.E.2d 901, 903 (1988) (stating the family court should first attempt an in-kind distribution of the assets before forcing a sale; Fields v. Fields, 342 S.C. 182, 190, n.7, 536 S.E.2d 684, 688, n.7 (Ct. App. 2000) (noting an in-kind distribution is unwarranted when the nature of the parties’ relationship to the property would make it inequitable).

[4]  See Widman v. Widman, 348 S.C. 97, 110, 557 S.E.2d 693, 700 (Ct. App. 2001) (“The apportionment of marital property is within the discretion of the family court judge and will not be disturbed on appeal absent an abuse of discretion.”).

[5]  See S.C. Code Ann. § 20-7-472 (Supp. 2004) (listing the criteria for equitable apportionment of marital property and stating that the family court, in making the allocation, “must give weight in such proportion as it finds appropriate to all of the [equitable distribution factors]”).