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2007-UP-460 - Dawkins v. Dawkins

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


Alice Dawkins, Respondent,

v.

Steve Dawkins, Appellant.


Appeal from Cherokee County
Georgia V. Anderson, Family Court Judge


Unpublished Opinion No. 2007-UP-460
Submitted October 1, 2007 – Filed October 11, 2007


AFFIRMED IN PART; REVERSED IN PART; REMANDED


Richard H. Rhodes, of Spartanburg, for Appellant.

William G. Rhoden and Usha J. Bridges, of Gaffney, for Respondent.


PER CURIAM:  In this domestic action, Steve Dawkins (Husband) appeals the family court’s (1) apportionment of marital property, (2) failure to provide Husband a special equity in the workers’ compensation award and the marital home, (3) failure to award Dawkins Automotive to Husband in the division of marital assets, and (4) award of attorney’s fees.  We affirm in part, reverse in part, and remand.[1]

FACTS

The parties in this divorce action were married in June 1980, and separated on August 14, 2002.  During their twenty-two year marriage, Husband and Alice Dawkins (Wife) acquired numerous rental properties and a business, Dawkins Automotive.  Husband suffered an on-the-job injury in 1995 while employed with John Montgomery Development and collected a $78,000.00 workers’ compensation award.  He invested a substantial amount of those benefits in Dawkins Automotive.

Wife filed this divorce action on September 10, 2002.  In her complaint, Wife prayed for use of the marital home and the right to operate the family business (Dawkins Automotive).  An emergency hearing addressing these concernments was scheduled for October 10, 2002.  Husband filed an affidavit seeking to operate the business and to gain access to the business records in Wife’s possession.

A temporary order was entered on November 1, 2002, giving Wife control of the business and directing her to account each week for business income and expenses.  The order provided:  (1) Husband would make repairs on vehicles for the business, and return them to Wife, who would sell them for Dawkins Automotive; (2) Wife would furnish the tools and parts for Husband’s repair of the vehicles; (3) Husband and Wife would agree upon a Certified Public Accountant (CPA) who would conduct an audit, determine the money received, the automobiles sold, the expenses paid, and the money disbursed; (4) Wonketia Dawkins (the parties’ daughter) would manage and collect rent from the parties’ mutually owned rental properties and make a monthly accounting; (5) Husband and Wife would make an accounting of rent collected by either party prior to the order date; and (6) either party could petition for relief from the terms of the order.

On November 14, 2002, Husband filed an Answer and Counterclaim to Wife’s initial Complaint requesting control over Dawkins Automotive and the business records in Wife’s possession.  At a follow-up hearing held December 3, 2002, Husband contended Wife failed to provide business records and was uncooperative with the repair and sale of vehicles for Dawkins Automotive. 

An order dated January 8, 2003, was issued:  (1) compelling the parties to present receipts and expenses related to the rental properties, received since the date of separation; (2) prohibiting the parties from accepting any rent or making any payments on behalf of the rental properties; (3) requiring Wonketia Dawkins to provide rental reports for November and December of 2002, as well as every month thereafter, showing all rent received and all expenses paid; (4) instructing the parties to produce a complete accounting of income and expenses related to the sale of used cars, both personally and for Dawkins Automotive; (5) commanding Husband to provide a written document on each car to be repaired to Wife, listing the needed parts, where they can be purchased, and their approximate cost; (6) dictating that Wife review the car repair documents with Husband and either provide him with the parts or the funds to obtain the parts; (7) directing the parties to give an inventory of all equipment in their respective possessions; and (8) stating when either party receives the income tax refund for 2001, provide it immediately to their attorney.

In January of 2004, Husband filed a motion requesting the information previously ordered by the court on January 8, 2003, and a hearing was held on January 29, 2004.  On February 10, 2004, a temporary order was issued expressing the family court’s dissatisfaction with the extent of compliance with the prior order.  It directed the parties to comply by providing: 

Each asset must be reviewed separately as to income and expenses to properly account.  Beginning August 18, 2002, both parties must therefore provide the Court and the other party an accounting of each asset (by the name of the asset) on which either has received income and all incurred expenses, supported by receipts and cancelled checks.  This includes automobiles and real estate.  Either party can then see what the other contends about a particular asset and the Court can determine whether there has been a net gain or a net loss on any particular asset.

Wonketia Dawkins must provide by location of each rental property, an accounting of all rent received and all expenses paid beginning November 1, 2002.  Again this will allow the parties and the Court to view each asset separately and make a determination of net gain or net loss.

Both Plaintiff and Defendant must provide the other and this Court a list of all vehicles in his/her possession on August 18, 2002 as well as any vehicles acquired or sold subsequent to that date to include name of vehicles, to whom sold, purchase price, sales price, expenses to repair and monthly payments, if any.

All of the aforesaid must be provided by the parties to their respective attorneys within 10 days.  In addition Wonketia Dawkins is hereby named as a party defendant and she is to be served with a copy of this Order and required to comply with the accounting within 10 days after service.

After Husband sought a Rule to Show Cause alleging Wife was not producing rental information or other court ordered documents, Wife presented a voluminous box of documents at a hearing on May 4, 2004.  From the hearing, a temporary order was entered on June 14, 2004, continuing the hearing and stating that it appeared Wife and Wonketia Dawkins complied with the prior order, and the matter may be rescheduled if necessary.

On October 5, 2005, the court held a status conference where it required Wife to present within thirty days:  (1) index cards of paid out accounts for car sales; (2) monthly reports filed with the South Carolina Tax Commission beginning with September 2002; (3) a list of automobiles sold and their respective buyers for the years of 2004 and 2005; (4) income and expense information on the rental properties for 2004 and 2005; and (5) a composition book of Husband’s recorded car sales, if available.  In addition, the court instructed Husband to provide an accounting of the following within thirty days:  (1) maintenance proceeds; (2) rents received from two of the rental properties; and (3) all car sales.

As a result of Wife’s non-production of the documents outlined in the status conference, Husband filed a petition requesting a Rule to Show Cause and the hearing was held on December 15, 2005.  At the hearing, Wife presented a plethora of documents purported to contain the information requested.  Under the assumption the CPA would be able to find the necessary data to construct his report, the hearing was continued by an order dated December 28, 2005.

On December 19, 2005, Husband filed a Rule to Show Cause alleging Wife had not complied with the prior orders of the court.  This petition was scheduled to be heard at the final hearing on January 11, 2006.  A divorce decree was entered on March 19, 2006, providing in relevant parts:

R.   Distribution List Follows.

The marital properties and debts shall be divided pursuant to the list attached hereto.  While the Plaintiff is to receive more than the Defendant, the Plaintiff is taking responsibility for all the marital debt which is secured by the properties that she is receiving.  The Court has considered the relative fault in the breakup of the marriage as well as the Plaintiff’s earnest and commendable efforts in maintaining the parties [sic] properties and good credit during the pendency of this action.  Assets received by the Defendant are debt free.  Further, the Plaintiff needs the assets that she will be receiving to support herself in the future.  Both parties should cooperate in the signing of any documents necessary to comply with the terms of this Order….

10.  The Court finds that in regard to attorney [sic] fees both parties have contributed to the prolonged contentiousness of this case.  However, the most significant act, or failure to act was that of the Plaintiff in not timely producing the September 2002 accounts receivable list with the supporting documentation.  The Court finds that had this been done in a timely manner, this case may have very well have been less expensive and been ready for trial earlier.  The Court considers this factor in the request for attorney’s fees rather than as a separate contempt issue.  The Plaintiff shall contribute $7,500.00 toward the Defendant’s attorney’s fees within six months of the date of this Order paying this directly to Mr. Thompson.  In consideration of his fault in the break up of the marriage, [t]he Defendant shall contribute $3,000.00 toward the Plaintiff’s attorney’s fees within six months of the date of this Order paying this amount directly to Mrs. Bridges.  The remaining legal expenses shall be paid the party incurring them.

Husband filed a Motion for Reconsideration pursuant to Rule 59(e), SCRCP.  On May 18, 2006, an amended divorce decree was entered which modified the original order, in relevant part: 

Page 11, R.  Distribution List Follows.  The following paragraph should be substituted.

The marital properties and debts shall be divided pursuant to the amended and modified asset distribution list attached hereto, wherein the Plaintiff will be receiving 60% of the marital assets, and the Defendant 40%.  The Court has considered the relative fault in the breakup of the marriage, as well as Plaintiff’s earnest and commendable efforts in maintaining the parties [sic] assets and good credit during the pendency of this action.  Consideration has also been given to the fact that Defendant’s real estate assets are all debt free, while Plaintiff takes with hers a debt obligation of $140,937.  The only real estate taken by Plaintiff lien free is the property occupied by the parties’ daughter, and for which neither party required the payment of rent prior to their separation.

Additionally, Plaintiff will have the right to operate the business known as Dawkins Auto free of any claims by the Defendant.  To accomplish a final distribution, the Plaintiff owes the Defendant $21,422.00, which is to be paid in full by July 1, 2007.

The remaining requests by the Defendant to Alter and/or Amend are hereby denied, and the March 19, 2006 order remains in full force and effect, except as herein as modified.

ISSUES

1. Did the family court err in apportioning the marital property in a sixty/forty division, granting Wife sixty percent of the marital estate?
 
2. Did the family court err in denying Husband a special equity in the workers’ compensation award and the marital home?
 
3.  Did the family court err by allocating Dawkins Automotive to Wife when dividing the marital assets?
 
4. Did the family court err by instructing Husband to pay Wife $3,000 toward her attorney’s fee while only awarding Husband $7,500 from Wife for his attorney’s fee?

STANDARD OF REVIEW

In appeals from the family court, this court may find facts in accordance with its own view of the preponderance of the evidence.  Nasser-Moghaddassi v. Moghaddassi, 364 S.C. 182, 189, 612 S.E.2d 707, 711 (Ct. App. 2005) (citing Emery v. Smith, 361 S.C. 207, 213, 603 S.E.2d 598, 601 (Ct. App. 2004)).  However, this broad scope of review does not require this court to disregard the family court’s findings.  Lacke v. Lacke, 362 S.C. 302, 307, 608 S.E.2d 147, 149 (Ct. App. 2005) (citing Bowers v. Bowers, 349 S.C. 85, 91, 561 S.E.2d 610, 613 (Ct. App. 2002)); Badeaux v. Davis, 337 S.C. 195, 202, 522 S.E.2d 835, 838 (Ct. App. 1999).  Nor must we 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.  Scott v. Scott, 354 S.C. 118, 124, 579 S.E.2d 620, 623 (2003) (citing Woodall v. Woodall, 322 S.C. 7, 10, 471 S.E.2d 154, 157 (1996)).  However, our broad scope of review does not relieve the appellant of the burden of convincing this court the family court committed error.  Nasser-Moghaddassi, 364 S.C. at 190, 612 S.E. 2d at 711 (citing Skinner v. King, 272 S.C. 520, 522-23, 252 S.E.2d 891, 892 (1979)).

DISCUSSION

1.  Equitable Division of Marital Property

Husband asserts the family court erred when apportioning the marital estate in a sixty/forty split in favor of Wife.  We agree.  The appropriate division of property is a fifty/fifty partition to each spouse.

The apportionment of marital property is within the discretion of the family court judge and will not be disturbed absent an abuse of discretion.  See Morris v. Morris, 295 S.C. 37, 39, 367 S.E.2d 24, 25 (1988).  Section 20-7-472 of the South Carolina Code (Supp. 2006) provides fifteen factors the family court must consider, giving each weight as it determines.  These factors are:  (1) the duration of the marriage, (2) any marital misconduct or fault and its effect on the break-up of the marriage, (3) the value of marital property and the contribution of each spouse in the acquisition, preservation, depreciation, or appreciation, including the contribution of a homemaker, (4) the income and earning potential of each spouse and opportunity for future acquisition of assets, (5) the health, both physical and emotional, of each spouse, (6) the need of either spouse for additional training or education, (7) the nonmarital property of each spouse, (8) the existence or nonexistence of vested retirement benefits for each spouse, (9) whether alimony has been awarded, (10) the desirability of awarding the family home, (11) the tax consequence to each spouse as a result of the apportionment, (12) the existence and extent of any support obligations of either party, (13) any liens and encumbrances on marital and separate property and other existing debts, (14) any child custody arrangements and obligations, and (15) any other relevant factors as the trial court shall expressly enumerate in its order.  S.C. Code Ann. § 20-7-472 (Supp. 2006).

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 the family court is irrelevant.  Johnson v. Johnson, 296 S.C. 289, 300-01, 372 S.E.2d 107, 113 (Ct. App. 1988); see Doe v. Doe, 324 S.C. 492, 502, 478 S.E.2d 854, 859 (Ct. App. 1996) (The reviewing court will affirm the family court judge’s apportionment of marital property if it can be determined that the judge addressed the relevant factors under section 20-7-472 with sufficiency for the reviewing court to conclude the judge was cognizant of the statutory factors.).

The court may acknowledge the grounds for divorce when apportioning the marital estate.  S.C. Code Ann. § 20-7-472(2) (Supp. 2006).  However, a severe penalty for fault is prohibited:  “Although fault does not justify a severe penalty in making a division of marital property, it is a factor the court may consider in determining the equities between spouses.” Rampey v. Rampey, 286 S.C. 153, 156, 332 S.E.2d 213, 214 (Ct. App. 1985); Simmons v. Simmons, 275 S.C. 41, 44-45, 267 S.E.2d 427, 429 (1980).

While there is no bright line rule, this Court suggests an equal fifty/fifty split of marital assets as an appropriate beginning point for dividing the estate of a long-term marriage.  Craig v. Craig, 358 S.C. 548, 557, 595 S.E.2d 837, 842 (Ct. App. 2004) (affirming fifty-fifty apportionment of the marital estate in a twenty-seven-year marriage), aff’d by 365 S.C. 285, 617 S.E.2d 359 (2005); Doe v. Doe, 324 S.C. 492, 503, 478 S.E.2d 854, 859 (Ct. App. 1996) (finding a fifty-fifty apportionment appropriate where the marriage lasted over thirty years); Harlan v. Harlan, 300 S.C. 537, 545, 389 S.E.2d 165, 170 (Ct. App. 1990) (upholding a fifty-fifty division of the marital assets for an eighteen-year marriage); Smith v. Smith, 294 S.C. 194, 199, 363 S.E.2d 404, 407 (Ct. App. 1987) (preserving a fifty-fifty split in a marriage of eighteen years); Leatherwood v. Leatherwood, 293 S.C. 148, 150, 359 S.E.2d 89, 90 (Ct. App. 1987) (approving a fifty-fifty apportionment of marital property after a twenty-two year marriage).

In Doe v. Doe, 370 S.C. 206, 215, 634 S.E.2d 51, 56 (Ct. App. 2006), the family court partitioned the marital estate in a seventy/thirty proportion in favor of the husband considering the wife’s marital misconduct.  Id. at 214, 634 S.E.2d at 55.  We found this division to be inequitable and re-assigned the estate in a sixty/forty distribution.  Id. at 215, 634 S.E.2d at 56.  This Court elucidated:

In light of the marriage’s longevity, our prohibition against imposing a severe penalty for fault, and the family court’s erroneous consideration of Dr. Woodside’s testimony, we find the family court abused its discretion when it awarded Husband seventy percent of the marital estate.  We believe the more equitable division would be sixty percent to Husband and forty percent to Wife.

Id. at 216; 634 S.E.2d at 57.  Doe is distinguished from the present case because the wife’s marital misconduct consisted of a twenty year adulterous relationship, resulting in a daughter.  Id. at 211, 634 S.E.2d at 54.  The wife led the husband to believe he fathered the child when the biological father was actually the wife’s paramour, a longtime family friend.  Id.

Widman v. Widman, 348 S.C. 97, 557 S.E.2d 693 (Ct. App. 2001), upheld an equal division of the marital estate under circumstances similar to the instant case.  In Widman, the court granted the wife a divorce on the ground of adultery, ending a sixteen year marriage.  Id. at 108, 557 S.E.2d at 699. 

“In its decree, the trial court found [the wife] to be in willful violation of the court’s order for (1) failing to file proper financial declarations as previously ordered, (2) disclosing information to [the husband’s] parents and adult daughter regarding [his] prior adulterous conduct, and (3) intentionally withholding the existence of a trust which was the subject of a motion to compel.” 

Id.  The court applied the fifteen factors of South Carolina Code section 20-7-472 (Supp. 2006) and found an equitable division of property to be a fifty-fifty split between the parties.  Id. at 111, 557 S.E.2d at 700-701.

In the case sub judice, the family court stated several facts relevant to its equitable division of the marital estate.  The court considered (1) Husband’s adulterous affair and its contribution to the break up of the marriage, (2) Wife’s efforts in maintaining the assets and good credit during the pendency of this action, (3) the liens and encumbrances on the property allotted to each party, and (4) Wife’s future support needs.

The overall distribution was sixty percent of the estate to Wife and forty percent to Husband for a marriage which lasted twenty-two years.  We hold this distribution is not equitable.  There is no evidence the family court considered the duration of the marriage or Wife’s disregard of court orders.  Given the fifteen factors in South Carolina Code section 20-7-472 (Supp. 2006), the prohibition of severe penalty for fault, Rampey, 286 S.C. 153, 156, 332 S.E.2d 213, 214 (Ct. App. 1985); Simmons, 275 S.C. 41, 44-45, 267 S.E.2d 427, 429 (1980), and the trend in case law for an equal apportionment of property, we reverse the family court’s sixty-forty split and hold a fifty-fifty division is appropriate.

2.  Special Equity and Characterization of Property as Marital v. Nonmarital

Husband asserts the family court erred by not granting him a special equity in the workers’ compensation award.  We disagree.  Next, Husband contends the family court’s denial of special equity in the marital home was in error.  We agree.

a.  Special Equity

A spouse may claim special equity in marital property, as set forth in South Carolina Code section 20-7-471 (Supp. 2006):

During the marriage a spouse shall acquire, based upon the factors set out in § 20-7-472, a vested special equity and ownership right in the marital property as defined in § 20-7-473, which equity and ownership right are subject to apportionment between the spouses by the family courts of this State at the time marital litigation is filed or commenced as provided in § 20-7-472.

In Webber v. Webber, 285 S.C. 425, 427-428, 330 S.E.2d 79, 81 (Ct. App. 1985), this Court articulated:

Under the special equity doctrine, “Where a wife has made a material contribution to the husband’s acquisition of property during coverture, she acquires a special equity in the property.”  Wilson v. Wilson, 270 S.C. 216, 241 S.E.2d 566, 568 (1978) (quoting 27B C.J.S. Divorce § 293 (1950)).  Therefore, one spouse acquires a special equity in the property of the other if (1) the property was acquired during coverture, (2) the spouse contributed to the acquisition of the property, and (3) the spouse’s contribution was material.

To acquire a special equity in nonmarital property, the property must appreciate during marriage or the non-owner spouse must materially contribute to the improvement of the property.  Webber, 285 S.C. at 428; 330 S.E.2d at 81 (citing Anderson v. Anderson, 282 S.C. 163, 318 S.E.2d 566, 567 (1984)).  The materiality of the contribution is not expressed in South Carolina Code section 20-7-472(3) (Supp. 2006), which states the court should examine “[t]he contribution of each spouse to the acquisition, preservation, depreciation, or appreciation in value of the marital property, including the contribution of the spouse as a homemaker; provided, that the court shall consider the quality of the contribution as well as its factual existence” when valuing and dividing property upon apportionment.  However, the statute directs the court to look at the “quality” and “factual existence” of the contribution.  Id. 

b.  Characterization of Property as Marital v. Nonmarital

Section 20-7-473 of the South Carolina Code (Supp. 2006) defines marital property and nonmarital property:

The term “marital property” as used in this article 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 § 20-7-742 regardless of how legal title is held, except the following, which constitute nonmarital property:

(1)  property acquired by either party by inheritance, devise, bequest, or gift from a party other than the spouse;
 
(2) property acquired by either party before the marriage and property acquiring after the happening of the earliest of (a) entry of a pendent lite order in a divorce or separate maintenance action; (b) formal signing of a written property or marital settlement agreement; or (c) entry of a permanent order of separate maintenance and support or of a permanent order approving a property or marital settlement agreement between the parties;
 
(3) property acquired by either party in exchange for property described in items (1) and (2) of this section;
 
(4)   property excluded by written contract of the parties.  “Written contract” includes any antenuptial agreement of the parties which must be considered presumptively fair and equitable so long as it was voluntarily executed with both parties separately represented by counsel and pursuant to the full financial disclosure to each other that is mandated by the rules of the family court as to income, debts, and assets;
 
(5)  any increase in value in nonmarital property, except to the extent that the increase resulted directly or indirectly from efforts of the other spouse during marriage.
 
  Interspousal gifts of property, including gifts of property from one spouse to the other made indirectly by way of a third party, are marital property which is subject to division.
 
  The court does not have jurisdiction or authority to apportion nonmarital property.

Nevertheless, circumstances in which nonmarital property may be transmuted into marital property exist:  “Property, nonmarital at the time of its acquisition, may be transmuted (1) if it becomes so commingled with marital property as to be untraceable; (2) if it is titled jointly; or (3) if 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.”  Johnson v. Johnson, 296 S.C. 289, 295, 372 S.E.2d 107, 110 (Ct. App. 1988) (citing Trimnal v. Trimnal, 287 S.C. 495, 339 S.E.2d 869 (1986); Wyatt v. Wyatt, 293 S.C. 495, 361 S.E.2d 777 (Ct. App. 1987)); Wannamaker v. Wannamaker, 305 S.C. 36, 39, 406 S.E.2d 180, 182 (Ct. App. 1991).  “Transmutation is a matter of intent to be gleaned from the facts of each case.”  Murray v. Murray, 312 S.C. 154, 157, 439 S.E.2d 312, 315 (Ct. App. 1993); Deidun v. Deidun, 362 S.C. 47, 57, 606 S.E.2d 489, 494-495 (Ct. App. 2004) (citing Jenkins v. Jenkins, 345 S.C. 88, 98, 545 S.E.2d 531, 537 (Ct. App. 2001)).

The obligation of proving a successful transmutation is on the spouse who is claiming the property as marital.  Greene v. Greene, 351 S.C. 329, 338, 569 S.E.2d 393, 398 (Ct. App. 2002).  This evidentiary burden consists of “objective evidence showing that, during the marriage, the parties themselves regarded the property as the common property of the marriage.” Id.  The use of non-marital property in support of the marriage without intent to treat or characterize the property as marital is not sufficient to establish that the property was transmuted.  Id.

i.  Workers’ Compensation Award

Husband alleges the family court erred in denying him special equity in the workers’ compensation award and the benefits should be characterized as nonmarital property.  We disagree.

The designation of the workers’ compensation award as marital property is supported by Orszula v. Orszula, 292 S.C. 264, 356 S.E.2d 114 (1987), which held:  “Wages clearly fall within [the statutory] definition.  We find no error in the distribution of a substitute for wages.” Id. at 266, 356 S.E.2d at 114.

Special equity is appropriate when a spouse acquires property during the marriage, or when there is an increase in value of property attributable to the non-owner spouse’s material contribution.  S.C. Code Ann. § 20-7-471 (Supp. 2006); Calhoun v. Calhoun, 339 S.C. 96, 106, 529 S.E.2d 14, 20 (2000); Murray v. Murray, 312 S.C. 154, 159, 439 S.E.2d 312, 316 (Ct. App. 1993). 

Husband argues because the benefits were awarded for his disability and not as a substitution of wages, they should be characterized as nonmarital property.  We disagree.  Husband was granted the workers’ compensation award incident to his injury while employed with John Montgomery Development in 1995.  This occurred during his marriage and his benefits are marital property under both the statutory definition in South Carolina Code section 20-7-473 (Supp. 2006) and the characterization in Orszula

Husband contends he should be granted a special equity in the workers’ compensation award.  He relies on Cooksey v. Cooksey, 280 S.C. 347, 312 S.E.2d 581 (Ct. App. 1984), stating:  “Based on the reasoning in Cooksey, the Husband should have been given an extra portion of the marital assets, because had it not been for the Husband’s workers’ compensation award, the parties would not have had the family business known as Dawkins Automotive.”  We disagree.  Cooksey depicts a situation in which special equity was awarded for an inheritance which was transmuted into marital property.  Id. at 352, 312 S.E.2d at 585.  Inheritances are nonmarital under the definition of South Carolina Code section 20-7-471(1) (Supp. 2006), whereas workers’ compensation awards are marital.  Orszula, at 266, 365 S.E.2d at 114.  Special equity is not appropriate for Husband’s investment of marital property into the family business of Dawkins Automotive.

We find the Husband is not entitled to a special equity in the workers’ compensation award. 

ii.  Marital Home (532 McCluney Drive)

Husband professes the family court erred in failing to find he was entitled to a special equity in the marital home.  We agree.

Gifts from parties other than one’s spouse during coverture are nonmarital in nature and not subject to equitable division upon divorce.  S.C. Code Ann. § 20-7-743 (Supp. 2006); Canady v. Canady, 296 S.C. 521, 524, 374 S.E.2d 502, 504 (Ct. App. 1988) (holding an inter vivos gift may be transmuted like inherited property) (citing Canady v. Canady, 289 S.C. 512, 347 S.E.2d 115 (Ct. App. 1986)).  However, nonmarital property may be transmuted into marital property by commingling with marital property, titling it jointly, or using it to support the marriage with the intent to characterize the property as marital.  Canady, at 524, 374 S.E.2d at 504 (citing Wyatt v. Wyatt, 293 S.C. 495, 361 S.E.2d 777 (Ct. App. 1987)).  The court must examine the intent of the parties when nonmarital property is used in support of the marriage.  Canady, at 524, 374 S.E.2d at 504 (citing Johnson v. Johnson, 296 S.C. 289, 295, 372 S.E.2d 107, 110 (Ct. App. 1988)).

In the case at bar, family court concluded 532 McCluney Drive was marital property.  The issue was litigated and the court found the property was used in support of marriage and the parties’ actions convey intent to treat it as marital:

The Defendant’s mother, Cora Dawkins, purchased this land for investment/rental property in 1987.  In 1988, the parties moved in to this home and paid rent/mortgage, until December 1994, when Cora Dawkins deeded the property to Defendant for $10.00 love and affection.  The Defendant did extensive remodeling to the home over the years.  The parties agree that the home is now worth $71,000.00 and that there is an outstanding mortgage of $49,566.00 (Plaintiff’s Exhibit Number 8 and Defendant’s Exhibit Number 36).  All payments were made from marital funds prior to the separation and the Plaintiff has made the mortgage, tax and insurance payments through the parties [sic] business account since the separation.  The Court finds that this is marital property, that the Defendant is not entitled to a special equity in this property and that there is $21,434.00 equity subject to equitable distribution.

While not objecting to the home’s characterization, Husband contends that the family court should award him a special equity representative of the gift from his mother.  Cooksey v. Cooksey, 280 S.C. 347, 312 S.E.2d 581 (Ct. App. 1984), supports the Husband’s argument for a special equity.  In Cooksey, a transmutation of inherited non-marital property into marital property did not extinguish the inheritor’s right for special equitable consideration upon divorce.  This court explicated:

Clearly, Mr. Cooksey’s inheritance was commingled with and used as marital property.  We find, therefore, that the family court properly included it in the marital estate and subjected it to equitable distribution.  It does not follow, however, that Mr. Cooksey was entitled to recoup none of his inheritance….

The failure of the family court to consider restoring Mr. Cooksey’s inheritance to him along with its failure to set forth facts upon which it based its finding that he should not be “reimbursed” for it was error.  On remand, the court is to make appropriate factual findings and legal conclusions as to whether Mr. Cooksey is entitled to a special equitable consideration upon the distribution of the marital assets based on his contribution of his inheritance.

Id. at 353, 312 S.E.2d at 585.

The initial equity in the marital home was a gift to Husband by his mother with a value of $25,000.00.  Although the gift was transmuted, transmutation did not extinguish Husband’s right to receive a special equity upon divorce.  We find Husband is entitled to a special equity upon the distribution of the marital assets based on his contribution of the gift.

The family court erred in denying Husband a special equity in the marital home.  We reverse and hold Husband is entitled to a $25,000.00 special equity in the marital home.

3.  Dawkins Automotive Award to Wife

Husband claims the family court erred in granting Wife control and ownership of Dawkins Automotive.  We disagree.

Section 20-7-476 of the South Carolina Code (Supp. 2006) renders authority to the family court to divide and sell property during the partitioning of a marital estate:

The court may direct a party to execute and deliver any deed, bill of sale, note, mortgage, or other document necessary to carry out its order of equitable apportionment.  If a party so directed fails to comply, the court may direct the clerk of court in the county in which the property involved is situate to execute and deliver the document, and this performance by the clerk is as effective as the performance of the party would have been.  The court in making an equitable apportionment may order the public or private sale of all or any portion of the marital property upon terms it determines.

The court may utilize any other reasonable means to achieve equity between the parties, which means are subject to and may not be inconsistent with the other provisions of this article and may include making a monetary award to achieve an equitable apportionment.  Any monetary award made does not constitute a payment which is treated as ordinary income to the recipient under either the provisions of Chapter 7 of Title 12 or, to the extent lawful, under the United States Revenue Code.

Accordingly, “[t]he family court has wide discretion in determining how marital property is to be distributed.”  Greene v. Greene, 351 S.C. 329, 341, 569 S.E.2d 393, 400 (Ct. App. 2002) (citing Murphy v. Murphy, 319 S.C. 324, 329, 461 S.E.2d 39, 41-42 (1995)).  “Broad jurisdiction is granted family court judges in matters of equitable distribution by Section 20-7-420, Code of Laws of South Carolina (1976), and trial judges may employ any reasonable means to effectuate an equitable division of the marital estate.”  Bass v. Bass, 285 S.C. 178, 182, 328 S.E.2d 649, 651 (Ct. App. 1985).

“If possible, all issues between the parties should be resolved at [divorce] so that disputes and irritants do not linger and present further incentives to litigation.  The family court’s objective should be to dissolve the marriage, sever all entangling legal relations and place the parties in a position from which they can begin anew.” 

Johnson v. Johnson, 285 S.C. 308, 311, 329 S.E.2d 443, 445 (Ct. App. 1985).

The family court in the instant case was acting within its discretion in dividing assets between Husband and Wife.  Dawkins Automotive was distributed to Wife incident to the apportionment of the marital assets.  This is consistent with Johnson’s objective of severing all legal ties between Husband and Wife.  The family court has the authority to decide which spouse receives which asset. 

4.  Attorney’s Fees

Husband asserts the family court erred in awarding Wife $3,000.00 in attorney’s fees and only awarding him $7,500.00 in attorney’s fees.  We disagree.

Authority to award attorney’s fees in a divorce action is found in South Carolina Code section 20-3-130(H) (Supp. 2006):

The court, from time to time after considering the financial resources and marital fault of both parties, may order one party to pay a reasonable amount to the other for attorney fees, expert fees, investigation fees, costs, and suit money incurred in maintaining an action for divorce from the bonds of matrimony, as well as in actions for separate maintenance and support, including sums for services rendered and costs incurred before the commencement of the proceeding and after entry of judgment, pendente lite and permanently.

An award of attorney’s fees lies within the sound discretion of the family court and will not be disturbed on appeal absent an abuse of discretion.  Patel v. Patel, 359 S.C. 515, 553, 599 S.E.2d 114, 123 (2004); Bowen v. Bowen, 327 S.C. 561, 563, 490 S.E.2d 271, 272, (Ct. App. 1997).  The family court, in determining whether to award attorney’s fees, should consider each party’s ability to pay his or her own fees, the beneficial results obtained, the parties’ respective financial conditions, and the effect of the fee on the parties’ standards of living.  E.D.M. v. T.A.M., 307 S.C. 471, 476-477, 415 S.E.2d 812, 816 (1992).  In determining the reasonable amount of attorney’s fees to award, the family court should consider the nature, extent, and difficulty of the services rendered, the time necessarily devoted to the case, counsel’s professional standing, the contingency of compensation, the beneficial results obtained, and the customary legal fees for similar services.  Glasscock v. Glasscock, 304 S.C. 158, 161, 403 S.E.2d 313, 315 (1991); see also Messer v. Messer, 359 S.C. 614, 633, 598 S.E.2d 310, 320 (Ct. App. 2004) (refusing to find an abuse of discretion as to award of attorney’s fees when the family court analyzed each of the factors, detailed its findings in its final order, and those findings were supported by affidavits).

In this case, the family court found both parties contributed to the prolongation and contentiousness of this matter.  The family court held Wife’s untimely production of documents warranted a $7,500.00 award of attorney’s fees to Husband.  The family court recognized Husband’s fault in causing the breakup of the marriage to be the controlling factor in its decision to grant Wife $3,000.00 in attorney’s fees.

We find sufficient evidentiary support in the record to uphold the judge’s award of attorney’s fees.  Accordingly, we hold the court did not abuse its discretion in this instance.  See Robinson v. Tyson, 319 S.C. 360, 366, 461 S.E.2d 397, 400 (Ct. App. 1995) (no abuse of discretion in ordering payment of attorney’s fees where record contains sufficient evidence to support the award); Glasscock, 304 S.C. at 161, 403 S.E.2d at 315.

CONCLUSION

We affirm the ruling of the family court in regard to:

1) The characterization of the workers’ compensation award as marital, subject to equitable distribution without special equity;
 
2) The grant of ownership of Dawkins Automotive to Wife incident to the division of the marital estate; and
 
3) Attorney’s fees.

We reverse the holding of the family court in reference to:

1) The apportionment of marital property in a sixty/forty split, holding a fifty/fifty division is appropriate; and
 
2)  The denial of Husband’s special equity in the marital home, finding Husband is entitled to a $25,000.00 special equity.

We remand to the family court for re-division of the marital estate in accordance with this opinion.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

ANDERSON and THOMAS, J.J., and CURETON, A.J., concur.


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