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2007-UP-345 - Fernandes v. Fernandes

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

Linda Kay Fernandes, Respondent,

v.

Joseph Carlos Fernandes, Appellant.


Appeal From Charleston County
 Frances  P. Segars-Andrews, Family Court Judge


Unpublished Opinion No. 2007-UP-345
Heard February 6, 2007 – Filed June 29, 2007
Withdrawn, Substituted and Refiled September 13, 2007


AFFIRMED IN PART, REVERSED IN PART, AND MODIFIED


Gregory Samuel Forman, of Charleston, for Appellant.

Cynthia Barrier Patterson, of Columbia and David Dusty Rhoades, of Charleston, for Respondent.

PER CURIAM:  Joseph Carlos Fernandes (Husband) appeals the family court’s divorce order, which granted Linda Kay Fernandes (Wife) a divorce on the ground of adultery, denied Husband alimony, equitably divided the marital property, credited Wife with health insurance costs, ordered Husband to pay child support through the court, and ordered Husband to pay Wife $10,000 in attorney’s fees.  We affirm in part, reverse in part, and modify.

FACTS

Husband and Wife purchased a house (marital house) in July 1986.  In October 1986, Husband and Wife married.  Husband and Wife have two children. 

Husband worked for the United States Navy from October 1981 through April 1994.  In April 1994, Husband retired from the military for medical reasons, and thereafter, he earned income from military retirement/disability payments, from refereeing soccer matches, and from miscellaneous yard work.  Wife derives her income from teaching at a technical college.  In 1997, Husband and Wife fully paid off the mortgage on the marital house. 

In August 2001, Husband and Wife separated.  Wife purchased and moved into a separate residence (Wife’s house), and Husband remained in the marital house.  

In June 2002, Wife filed an action for separate maintenance.  In March 2003, Wife filed an amended complaint seeking divorce on the ground of adultery.  After a hearing, the family court: (1) found Wife was entitled to a divorce on the ground of adultery; (2) ordered Husband to pay $10,000 in attorney’s fees to Wife; (3) gave Wife sole custody of the children; (4) ordered Husband to pay child support in the amount of $286 per month through the court, plus the 5% administrative service charge; (5) equitably divided the marital property; (6) determined Husband’s Navy Federal Credit Union accounts and Charleston Naval Shipyard Federal Credit Union accounts were marital property; (7) ordered the marital home to be sold and the proceeds divided equally after Husband received $38,808.85 (because Wife had more assets); (8) ordered Husband to pay one-half the fair market rental value of the marital house to Wife for the time he remained in the house, beginning ninety days after the date of the court order; (9) determined Husband had no interest in Wife’s house; and (10) determined Husband would receive the Toyota Rav-4 valued at $9,000.  Husband filed a motion to alter or amend the family court’s judgment, which was generally denied.[1]  This appeal follows. 

STANDARD OF REVIEW

“When reviewing the factual determinations of the family court, an appellate court may take its own view of the preponderance of the evidence.”  Scott v. Scott, 354 S.C. 118, 124, 579 S.E.2d 620, 623 (2003).  However, “the appellate court’s broad scope of review does not relieve the appellant of the burden of showing that the family court committed error.”  Ex parte Morris, 367 S.C. 56, 62, 624 S.E.2d 649, 652 (2006).  Also, when evidence is disputed, the appellate court may adhere to the findings of the family court, which is in a superior position to judge the witnesses’ demeanor and veracity.  Woodall v. Woodall, 322 S.C. 7, 10, 471 S.E.2d 154, 157 (1996). 

LAW/ANALYSIS

I. Adultery

Husband contends the family court erred in finding he committed adultery.  Specifically, Husband asserts there was no evidence of his inclination to commit adultery.  We disagree.

“To obtain a divorce on the ground of adultery, the evidence establishing the adultery ‘must be clear and positive, and the infidelity must be established by a clear preponderance of the evidence.’”  Nemeth v. Nemeth, 325 S.C. 480, 484, 481 S.E.2d 181, 183 (Ct. App. 1997) (quoting Brown v. Brown, 215 S.C. 502, 512-13, 56 S.E.2d 330, 335 (1949)).  “Adultery may be proved by circumstantial evidence, or by direct evidence, or a combination of the two; and circumstantial evidence is just as good as direct evidence if it is equally convincing.”  Anders v. Anders, 285 S.C. 512, 515, 331 S.E.2d 340, 342 (1985). 

The proof of adultery “must be sufficiently definite to identify the time and place of the offense, and the circumstances under which it was committed.”  Nemeth, 325 S.C. at 484, 481 S.E.2d at 183.  “Circumstantial evidence showing the opportunity and inclination to commit adultery is sufficient to establish a prima facie case.”  Id.

At trial, Wife argued Husband had an affair with Maria Garcia.  In support of her position, Wife presented items she found in June 2002 in the marital home.  Wife submitted various romantic cards allegedly from Garcia to Husband.  One card states, “I miss you.  My heart aches for you.  My stomach is in knots because we’re apart.”  Another reads, “There’s only one good thing about us being apart, The ‘welcome back’ sex is gonna be great!!”  The cards are signed either “Maria ‘Braga’” or “Ceu,” Garcia’s middle name.  Also, Wife introduced a book entitled, “101 Nights of Great Sex,” which she alleged came from Garcia.  In addition, Wife presented three pages from an instant messaging exchange;[2] the exchange is between “Ceushinha” and “JCFMSoccer.” 

Wife testified Garcia’s “email name” is “Ceushinha” and Husband’s “email name” is “JCFMSoccer.”  The instant message text suggests the parties to the exchange have passionate feelings for each other and have been intimate.  At one point, Ceushina said, “Tell me I never called you by his name when we were making love” to which JCFM replied, “Yes, you did, subconsciously things happen!”  Further, Wife testified that in June 2002, she found blue lingerie that was not hers in the marital home.  Finally, Wife offered a video and witness testimony that suggest Garcia stayed overnight with Husband in July 2002. 

In contrast, Husband averred he and Garcia are long-time friends and have never had romantic feelings for one another.  Husband admitted he and Garcia spent three nights together at his house in July 2002.  However, Husband explained he and Garcia slept in different bedrooms throughout Garcia’s stay.  Moreover, Husband testified Garcia intended to stay only a few hours but unexpectedly extended her stay because she became ill.  Also, Husband testified he had never seen the sex book or romantic cards Garcia allegedly sent to him.  Similarly, Husband testified he did not recognize the instant message exchange introduced by Wife. 

Husband also provided Garcia’s deposition testimony to further refute Wife’s contention.  Garcia testified she and Husband are like brother and sister.  In addition, Garcia testified she visited Husband in July 2002 when she was en route to visit her boyfriend.  Garcia averred she planned to stay only a few hours but stayed longer because she began to feel ill.  Garcia testified she and Husband stayed in separate bedrooms.  Further, Garcia testified she did not recall sending any romantic cards or sex books to Husband; however, Garcia admitted that the handwriting in two of the cards looked like hers. 

We find the record provides sufficient evidence to support the family court’s finding that Husband committed adultery.  First, it is undisputed that Husband had the opportunity to commit adultery with Garcia in July 2002.  Second, the romantic cards, the instant messaging exchange, the sex book, and the unclaimed lingerie all suggest Husband was inclined to commit adultery with Garcia.  We concur with and adhere to the family court’s findings in this instance.  Woodall, 322 S.C. at 10, 471 S.E.2d at 157 (holding “the appellate court may adhere to the findings of the trial judge who . . . was in a superior position to judge the witnesses’ demeanor and veracity”).  Therefore, we find the family court did not err in holding Husband committed adultery.

II.  Alimony

Husband next asserts that if we hold the family court erred in finding Husband committed adultery, we must remand Husband’s claim for alimony.  We will not address this issue because of our disposition on the first issue.  See Whiteside v. Cherokee County Sch. Dist. No. One, 311 S.C. 335, 340, 428 S.E.2d 886, 889 (1993) (stating this Court does not need to address remaining issues when resolution of a prior issue is dispositive). 

III.  Toyota Rav-4

Husband argues the family court erred in awarding the Toyota Rav-4 to Husband and in failing to account for the pendente lite depreciation of the vehicle.  We find the family court did not err in awarding Husband the Rav-4 but did err in its valuation of the vehicle.  

Husband and Wife purchased the Rav-4 in 1999.  Wife sought temporary and permanent possession of the Rav-4 in both her initial and amended complaints.  The family court awarded Wife possession of the Rav-4 during the pendency of this action.  Throughout this case, Wife possessed and used the Rav-4. 

Wife’s initial financial declaration, submitted in November 2002, listed the value of the Rav-4 at $9,000.  Wife’s amended financial declaration, submitted at trial in July 2004, valued the Rav-4 at $4,000.  The family court awarded the Rav-4 to Husband, valuing it at $9,000. 

a.  Award of Rav-4 to Husband

Generally, “[t]he apportionment of marital property is within the family court judge’s discretion and will not be disturbed on appeal absent an abuse of discretion.”  Doe v. Doe, 324 S.C. 492, 502, 478 S.E.2d 854, 859 (Ct. App. 1996).  In making an equitable distribution of marital property, the family court must, among other things: (1) identify the marital property, both real and personal, to be divided between the parties; (2) determine the fair market value of the identified property; (3) apportion the marital estate according to the contributions, both direct and indirect, of each party to the acquisition of the property during the marriage, their respective assets and incomes, and any special equities they may have in marital assets; and (4) provide for an equitable division of the marital estate, including the manner in which the distribution is to take place.  Nasser-Moghaddassi v. Moghaddassi, 364 S.C. 182, 197, 612 S.E.2d 707, 715 (Ct. App. 2005).

In addition, the family court must consider fifteen criteria specified by section 20-7-472 of the South Carolina Code (Supp. 2005), weighing each as it finds appropriate based on the facts of the case.  Johnson v. Johnson, 296 S.C. 289, 297, 372 S.E.2d 107, 112 (Ct. App. 1988).  “These criteria guide the court in exercising its discretion over apportionment of the marital property” and “are nothing more than equities to be considered in reaching a fair distribution of marital property.”  Id. at 297-98, 372 S.E.2d at 112.  “On review of an equitable apportionment of marital property, this [C]ourt looks to the fairness of the overall apportionment and if the end result is equitable, it is irrelevant that this [C]ourt might have weighed specific factors differently than the trial [C]ourt.”  Doe, 324 S.C. at 502, 478 S.E.2d at 859.         

We find the family court did not commit an abuse of discretion in awarding the Rav-4 to Husband.  The family court’s order provides that in determining the equitable apportionment of the property, it “specifically considered all factors as set forth in 1-15 subparts of South Carolina Code of Law Section 20-7-472 and . . . gave weight as the court found appropriate to all of the factors enumerated in that statute.”  After consideration of the facts in this case, we affirm the family court’s award.  Because Husband did not want the Rav-4 does not make the family court’s award an abuse of discretion.  The family court was well within its authority to award the Rav-4, a portion of the marital estate, to Husband.

b.  Value of Rav-4

Generally, “for purposes of equitable distribution, the value of marital property is the value of the property at the time of the commencement of the marital litigation.”  Dixon v. Dixon, 334 S.C. 222, 227, 512 S.E.2d 539, 541 (Ct. App. 1999).  “It is equally true, however, that the parties may be entitled to share in any appreciation or depreciation in marital assets occurring after separation but before divorce.”  Fields v. Fields, 342 S.C. 182, 186, 536 S.E.2d 684, 686 (Ct. App. 2000).  In cases when a substantial delay exists between the commencement of the action and its ultimate resolution, “the family court has the ability to consider the post-filing appreciation or depreciation when valuing and apportioning the marital estate.”  Dixon, 334 S.C. at 228, 512 S.E.2d at 542.   

In cases when it would be “grossly unfair” to value a marital asset at the time of the commencement of the action, the family court may value the asset at the time of trial.  Mallett v. Mallett, 323 S.C. 141, 151, 473 S.E.2d 804, 810 (Ct. App. 1996).  In all instances, when reviewing the valuation of a marital asset, the appellate court looks to the overall fairness of the distribution award.  Id. (citing Johnson, 296 S.C. at 300, 372 S.E.2d at 113). In Mallet, this Court affirmed the family court’s valuation of a business at the time of trial, which had depreciated through no fault of either party, because we found it would be “grossly unfair” to value the asset as of the date of the commencement of the action.  Id. 

Under the facts of this case, we find it would be grossly unfair to value the Rav-4 at the time the action commenced.  The Rav-4 diminished substantially in value from $9,000 to $4,000 during the course of this action, which began in June 2002 and concluded over two years later in September 2004.  Moreover, the depreciation presumably occurred through no fault of either party.  Accordingly, we find the family court committed an error in valuing the Rav-4 at $9,000.  To make the end result equitable, the Rav-4 should have been valued at $4,000, the value at the time of the trial.  Accordingly, we modify the family court’s order to reflect this finding.

IV.  Husband’s Navy Federal Credit Union accounts

Husband alleges the family court erred in finding his bank accounts with the Navy Federal Credit Union were marital assets.  We agree.

Throughout their marriage, Husband and Wife maintained a household account and separate, individual bank accounts.  Husband maintained numerous accounts that he testified stemmed from monies given to him prior to his marriage.  Regarding the Navy Federal accounts, Husband testified the source of these funds traced back to various accounts opened between 1978 and 1984.  Husband further testified his father provided the initial funds for these accounts.  In addition, Husband averred Wife never had access to these accounts, and he never intended for them to become marital property.  Wife similarly testified, “At all points in time, I had my separate accounts.  He had his separate accounts and there was a house account.”  The family court found these accounts were marital property and included them in the equitable apportionment. 

We note that despite Wife’s contention to the contrary, this issue is preserved for our review.  “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.”  Wilder Corp. v. Wilke, 330 S.C. 71, 76, 497 S.E.2d 731, 733 (1998).  Here, Husband clearly raised the issue at trial, as evidenced by his trial brief and testimony, and the family court ruled the accounts were marital assets.  Wife asserts Husband waived his right to appeal this issue because he agreed at the hearing on his motion to alter or amend the judgment that the parties’ joint account with Navy Federal Credit Union should be equitably divided.  However, Husband’s agreeing to the division of the parties’ joint account has no bearing on the division of his individual accounts. 

On the merits, the family court “does not have jurisdiction or authority to apportion nonmarital property.”  S.C. Code Ann. § 20-7-473 (Supp. 2005).  Marital property “means all real and personal property which has been acquired by the parties during the marriage and which is owned as of the date of filing or commencement of marital litigation as provided in § 20-7-472 regardless of how legal title is held . . . .”  Id.  However, property acquired before the marriage is generally nonmarital.  § 20-7-473(2).  “In certain circumstances, nonmarital property, as defined by the Act, may be transmuted into marital property during the marriage.”  Johnson, 296 S.C. at 295, 372 S.E.2d at 110.  In all cases, “[t]he spouse claiming an equitable interest in property upon dissolution of the marriage has the burden of proving the property is part of the marital estate.”  Johnson, 296 S.C. at 294, 372 S.E.2d at 110.

We find Wife failed to meet her initial burden of proving Husband’s Navy Federal accounts were marital assets.  The record is devoid of any evidence suggesting funds in these accounts were attained during the marriage.  Also, no evidence was presented to suggest these accounts were transmuted into marital property.  In fact, the only testimony regarding these accounts provided the accounts originated solely from premarital funds and were maintained exclusively by Husband.  Therefore, we find the family court erred in including Husband’s Navy Federal accounts as part of the marital assets.  Thus, we reverse this portion of the family court’s order to reflect our finding.

V.  Division of Husband’s Navy Federal Credit Union accounts

Husband asserts that if the Navy Federal Credit Union accounts were marital property, the family court erred in dividing them on a 50/50 basis.  Because Husband’s Navy Federal accounts were nonmarital property, we need not address this issue. See Whiteside, 311 S.C. at 340, 428 S.E.2d at 889 (stating appellate court need not address remaining issues when resolution of a prior issue is dispositive). 

VI.  Wife’s withdrawal of $17,248 from marital account and Husband’s equity interest in Wife’s house

Husband next asserts the family court erred in failing to give Wife a $17,000[3] credit for funds she allegedly withdrew from the parties’ marital account.  Further, Husband claims her use of these marital funds to purchase items for her new house gave Husband an equity interest in Wife’s house.  We disagree.  

Wife argues this issue is not properly preserved for our review.  Wife contends the family court did not specifically rule on this issue, and Husband clearly failed to raise any arguments relating to Wife’s alleged dissipation of marital funds from the parties’ joint account in his post-trial motion. 

If a party wants to raise an issue on appeal, the party has the responsibility to establish that the issue was raised to and ruled upon by the family court.  See e.g., Wilder Corp., 330 S.C. at 76, 497 S.E.2d at 733 (“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.”).  If the family court fails to rule upon an issue, the party then must raise the issue in a Rule 59(e) motion.  Failure to do so prevents this Court from addressing it on appeal due to issue preservation principles.[4]  See I‘On v. Town of Mount Pleasant, 338 S.C. 406, 422-23, 526 S.E.2d 716, 725 (2000) (stating parties should raise all necessary issues and arguments to trial court and attempt to obtain a ruling on those issues); Noisette v. Ismail, 304 S.C. 56, 58, 403 S.E.2d 122, 124 (1991) (ruling issue was not preserved for appellate review when the trial court did not explicitly rule on the appellant’s argument and the appellant made no Rule 59(e) motion to alter or amend the judgment).

Even though the family court did not explicitly rule on this issue, based on the overall apportionment, we find the family court correctly accounted for the $17,248 in its order.  Further, we hold the family court appropriately declined to award Husband an equity interest in Wife’s home. 

The crux of Husband’s argument is the $17,000 credit to Wife’s bank account in the family court’s final order pertained to a January 2004 order releasing funds and requiring the parties to equally divide a marital account as a second advance on equitable distribution.  Husband claims the family court failed to credit Husband his marital share of Wife’s $17,248 in expenditures as it only accounted for Wife’s $17,000 share of the advance on equitable distribution from the January order.

Based on our review of the evidence, we find the $17,000 credit to both Wife and Husband in the final order related to the prior advance on equitable distribution.  The January order to release funds required an equal split of the marital account, and Husband alleges Wife improperly spent $17,248.  It is more likely the family court was referencing the January order.  Further, the final order states Wife “received” $17,000 from Husband’s account.  This language tends to indicate the family court allowed Wife to access those funds.  Because Husband alleged Wife improperly dissipated the marital estate, we surmise the family court would not have chosen this specific language if it was attempting to resolve the issue of Wife’s expenditures. 

Looking at the overall apportionment of the marital estate, we find the family court’s equitable distribution award accounted for all the relevant facts, including Wife’s expenditures.  At trial, Wife admitted she removed approximately $17,248 from the couple’s marital account between April 2001 and June 2002.  Wife further acknowledged that a portion of this money was used to purchase appliances and/or “things” for her new home.  Wife also testified the $42,000 down payment for her house came from her father.  Wife further stated Husband contributed nothing to the purchase of her house. 

The family court found that $9,341.73 of the equity in Wife’s house constituted “marital portions.”  Nevertheless, the family court held Wife was entitled to 100% of the marital portions of Wife’s house because Husband “has used the marital residence during this entire litigation without having to pay any mortgage and the wife had to make the mortgage payments of $1,190.76 a month with no help from husband . . . .” 

We recognize when “one spouse has dissipated marital assets, the court will value the assets as of some date before the dissipation and treat the dissipated assets as part of the dissipating spouse’s share of the marital estate.”  Dixon, 334 S.C. at 232, 512 S.E.2d at 544.  However, we find Husband’s actions counterbalanced those of Wife’s, which the family court considered in its final order, resulting in Wife’s receipt of 100% of the marital portions of Wife’s house.  As stated above, “[t]he apportionment of marital property is within the family court judge’s discretion and will not be disturbed on appeal absent an abuse of discretion.”  Doe, 324 S.C. at 502, 478 S.E.2d at 859.  On review of an equitable apportionment of marital property, this Court looks to the fairness of the overall apportionment, and if the end result is equitable, it is irrelevant that this Court might have weighed specific statutory factors differently than the family court.  Id.

Thus, we find the family court did not commit an abuse of discretion in making its equitable distribution award as it relates to the $17,248 and in denying Husband an equity interest in Wife’s house.   

VII.  Husband’s contribution to the marital house

Husband next contends the family court erred in equitably apportioning the marital house.  Specifically, Husband argues the family court failed to give appropriate weight to Husband’s pre-marital contributions to the marital house.  We disagree.

The record indicates Husband’s and Wife’s down payment on the marital house totaled $6,695.85.  Wife testified she and Husband “both put down about the same amount of money for the house,” and her portion came from her retirement account.  In addition, Wife testified the marital home was paid off in equal amounts by the parties.  Husband gave no direct testimony about the down payment on the marital house.  Instead, Husband asserts the couple’s mortgage application, which indicates the couple had $23,247.12 in cash, is evidence Husband made substantial pre-marital contributions to the purchase of the marital home.  Wife testified the majority of the cash-in-hand represented on the credit application must have been Husband’s. 

Initially, Wife argues this issue is not preserved for review.  However, the equitable apportionment of the marital home was an issue for the family court, and the court unmistakably held both parties have an equal interest in the marital house.  See e.g., Wilder Corp., 330 S.C. at 76, 497 S.E.2d at 733 (“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.”).   Despite Wife’s contention, this issue is preserved for our review. 

On the merits, we find the family court did not commit an abuse of discretion in equitably apportioning the marital house.  The record clearly provides the total down payment by the parties did not exceed $5,500.  Moreover, Husband’s contention that the credit application evidences that he made “substantial” contributions is baseless.       

Husband’s $34,000 loan from father

Husband next argues the family court erred in failing to apportion the $34,000 loan Husband allegedly received from his father to pay off the mortgage on the marital home.  We disagree.

In January 1997, Husband and Wife paid off the remaining mortgage on the marital house, totaling approximately $68,000.  Husband and Wife agreed to each pay half of the remaining mortgage.  Wife’s portion came from the household account.  Husband testified his father loaned him $34,000 to pay his portion.  Husband also testified he told Wife he had to borrow the money from his father.  Similarly, Wife admitted Husband informed her that his father could lend him the money to pay off the mortgage. 

We find this issue is not preserved for our review.  The family court did not rule on the issue of Husband’s alleged loan, and the issue was not raised in Husband’s motion to alter or amend.  An issue is not preserved when a party raises an issue, but the issue is never ruled on by the trial court, and the party fails to file a motion to alter or amend raising the issue.  S.C. Farm Bureau Mut. Ins. Co. v. S.E.C.U.R.E. Underwriters Risk Retention Group, 347 S.C. 333, 334, 554 S.E.2d 870, 875 (Ct. App. 2001).   

VIII. Selling of marital house

Husband next asserts the family court erred in failing to allow Husband to keep the marital house as part of the equitable division.  We disagree.

Husband has lived in the marital house since 1986.  Husband’s financial declaration provides the value of the marital house in July 2004 was $185,000.  Similarly, Wife’s amended financial declaration, presented at the time of trial, provides the approximate market value of the marital house was $185,000.  The court ordered the parties to sell the marital house and to equitably divide the proceeds from the sale after offsetting Wife’s excess assets.  In his motion to alter or amend, Husband asked the family court to provide him with the option to buy out Wife’s interest in the marital house.  The family court denied Husband’s request. 

“To effect an equitable division of property, the family court may require the sale of the marital home.”  Craig v. Craig, 365 S.C. 285, 290, 617 S.E.2d 359, 361 (2005).  However, “[b]efore ordering marital property be sold, the court should first try to make an ‘in-kind’ distribution of the marital assets.”  Id.  The family court may grant a spouse title to the marital home as part of the equitable distribution or as an award incident to support.  Id. at 290-91, 617 S.E.2d at 361-62.  Nevertheless, “[t]he apportionment of marital property is within the family court judge’s discretion and will not be disturbed on appeal absent an abuse of discretion.”  Doe, 324 S.C. at 502, 478 S.E.2d at 859.     

We find the family court did not commit an abuse of discretion in ordering the parties to sell the marital house and equitably divide the proceeds.  The family court considered all of the statutory factors in determining that the most appropriate distribution required the sale of the marital home.  Admittedly, the family court’s order fails to clearly articulate the reason for requiring the parties to sell the marital house.  However, upon our review of the facts, in particular Husband’s limited financial resources (both present monetary holdings and future earning potential) and the contentious relationship between the parties, we find the most appropriate distribution requires selling the marital house.  Moreover, the family court’s order does not prevent Husband from purchasing the marital home in an arm’s length transaction.  Therefore, we uphold the family court’s ruling on this issue. 

IX. Husband’s rent on the marital house

Husband next argues the family court erred in requiring Husband to reimburse Wife for one-half the fair market rental value of the marital house until it sells.  We disagree.

The family court allowed Husband to remain in the marital house after trial but ordered the house be immediately placed on the market for sale.  In addition, the family court held that if the marital house did not sell within ninety days, Husband would be liable to Wife for half the rental value of the marital house until the house was sold.  The family court stipulated that Husband’s rental payments may be taken out of the proceeds from the sale of the marital house. 

We find the family court did not commit an abuse of discretion in ordering Husband to pay Wife half the rental value of the marital house.  Husband asserts Wife is not entitled to both rent and any increased equity in the marital house during this period because Husband is paying the expenses and taxes on the marital house.  We find this contention to be without merit. 

To support his position, Husband cites to McDavid v. McDavid, 333 S.C. 490, 511 S.E.2d 365 (1999).  In McDavid, the Supreme Court held the husband was not entitled to a share in the increased equity of the marital home between the time of separation and the time of trial when the husband did not contribute to the mortgage payments during this period.  Id. at 497, 511 S.E.2d at 369.  Husband’s reliance on McDavid is misplaced.  In this case, unlike in McDavid, Husband who is residing in the marital house is not continuing to pay a mortgage.  In contrast, Husband and Wife equally paid off the mortgage on the marital house and thus have equal rights to any increased equity in the house.  Any expenses Husband incurs associated with the upkeep of the marital house are related to daily living and do not substantially contribute to any increase in value.  Moreover, as the family court noted, Husband has lived in the marital house rent free throughout the duration of this case.  Accordingly, we find the overall apportionment of the marital property, including the requirement that Husband pay rent, is appropriate.     

X. Health Insurance

Husband alleges the family court erred in crediting Wife with health insurance costs.  Specifically, Husband asserts the child support guidelines require that his free medical care, which he receives as a disabled veteran, should have been selected as the best coverage.  Husband further contends the family court committed an error of law in failing to make written findings to justify its deviation from the child support guidelines.  We disagree.

The family court credited Wife with $115 per month in medical insurance costs for the children.  In his motion to alter or amend, Husband alleged his coverage is comprehensive, free, and cannot be cancelled, and thus, it should have been used to provide coverage.  Wife responded by asserting that the primary health insurance for the children has always been her plan, and Husband’s coverage has various limitations which prevent access and coverage.  The court denied Husband’s motion to alter or amend Wife’s credit for insurance costs. 

In determining health insurance coverage for children, “[o]rdinarily, the court should require coverage by that parent who can obtain the most comprehensive coverage through an employer or otherwise, at the most reasonable cost.”  27 S.C. Code Ann. Regs. 114-4720(A)(12) (Supp. 2006).  In this case, while both Husband and Wife are able to provide health insurance, the record fails to provide any detailed information about either’s coverage.  Husband has presented no evidence to demonstrate that Wife’s plan is not the “most comprehensive coverage” as required by South Carolina regulations.  Accordingly, we find the family court did not err in crediting Wife with health insurance costs.  See Medlock, 322 S.C. at 132, 470 S.E.2d at 376 (stating the appellant has the burden of presenting a record sufficient to allow the appellate court to make a decision).

XI. Child support payments through the court

Husband next asserts the family court erred in requiring him to make support payments through the court, and thereby incur an additional 5% service charge.  We disagree.

Section 20-7-420(A)(21) of the South Carolina Code (Supp. 2005) provides that the family court has exclusive jurisdiction “to determine the manner in which sums ordered paid for support shall be paid and applied, either to a person through the court, through the clerk of court, or through a centralized wage withholding system if required by federal statute or regulation.”  The family court held Husband must pay child support to the Wife through the court by the first of each month and denied Husband’s motion to alter or amend this ruling. 

The parties have a contentious relationship and requiring payments through the court may help limit future disagreements.  In addition, the record indicates Husband has not always been timely with his payments.  Thus, we find the family court did not err in ordering Husband to make support payments through the court.   

XII. Attorney’s Fees

Finally, Husband asserts that if this opinion alters the family court’s ruling in his favor, we should remand the issue of attorney’s fees and costs for reconsideration.  We disagree. 

“In determining whether an attorney’s fee should be awarded, the following factors should be considered: (1) the party’s ability to pay his/her own attorney’s fee; (2) beneficial results obtained by the attorney; (3) the parties’ respective financial conditions; (4) effect of the attorney’s fee on each party’s standard of living.”  E.D.M. v. T.A.M., 307 S.C. 471, 76-77, 415 S.E.2d 812, 816 (1992).  The beneficial result obtained by counsel is an essential factor in determining whether an attorney’s fee should be awarded.  Sexton v. Sexton, 310 S.C. 501, 503, 427 S.E.2d 665, 666 (1993). 

In this case, we modify the family court’s valuation of the Rav-4 and reverse its finding that Husband’s Navy Federal Credit Union accounts were marital property.  However, the overall holdings of the family court, namely the equitable division of marital property, the denial of Husband’s request for alimony, and Husband’s requirement to pay child support, are affirmed.  Moreover, the family court’s award of attorney’s fees to Wife was largely based on its finding that Husband was primarily responsible for the unnecessary delay in the proceedings and that Husband was not entitled to alimony.  Our decision does not impact either of these findings.  Accordingly, under these facts and our overall disposition of the case, we affirm the family court’s award of attorney’s fees. 

CONCLUSION

Based on the foregoing, we hold the family court did not err in (1) finding Husband committed adultery; (2) refusing to award alimony to Husband; (3) failing to credit Wife with $17,248 that she removed from marital account; (4) failing to award Husband equity in Wife’s house; (5) equitably dividing the parties’ interest in the marital house; (6) failing to apportion Husband’s alleged $34,000 loan; (7) ordering the sale of the marital home; (8) ordering Husband to pay half the rental value of the marital house to Wife for the time he remains in the house beyond ninety days after trial; (9) crediting Wife with health insurance costs; (10) ordering Husband to pay child support payments through the court; and (11) awarding attorney’s fees to Wife. 

We also hold the family court erred in valuing the Toyota Rav-4 at $9,000 and in finding Husband’s Navy Federal Credit Union accounts were part of the marital estate.  After adjusting the value of the Rav-4 from $9,000 to $4,000 and removing Husband’s accounts from the marital estate, Husband is entitled to $55,676 while Wife is entitled to $138,893.58.  Therefore, Wife has $83,217.58 more of the assets to be divided than does Husband.  Husband is still required to pay $10,000 in attorney’s fees to Wife.  Thus, Husband will receive the first $73,217.58 of the proceeds from the marital residence.  The remainder of such proceeds, less any rent Husband owes to Wife, will be divided equally between the parties.  Accordingly, the order of the family court is 

AFFIRMED in PART, REVERSED in PART, and MODIFIED.

HUFF, BEATTY, and WILLIAMS, JJ., concur.


[1] The family court modified its original order to some extent, but for the most part, it denied Husband’s motion. 

[2] At trial, Wife referenced the exhibit as an email; however, the document appears to be more akin to an instant message exchange.

[3]  Husband argues Wife improperly spent $17,000 in marital funds.  We reference the $17,000 at the outset to reflect Husband’s argument, but based on trial testimony and the record, we note the actual amount dissipated from the marital estate by Wife is $17,248.  (R. at 363-64).

[4] The appellant has the burden of presenting a record sufficient to allow the appellate court to make a decision.  Medlock v. One 1985 Jeep Cherokee, 322 S.C. 127, 132, 470 S.E.2d 373, 376 (1996).