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2008-UP-157 - Burr v. Burr

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

Deanna L. Burr, Respondent,

v.

Wayne Burr, Appellant.


Appeal From Lexington County
 Richard W. Chewning, III, Family Court Judge


Unpublished Opinion No.  2008-UP-157
Submitted March 3, 2008 – Filed March 12, 2008 


AFFIRMED


G. Robin  Alley, of Columbia, for Appellant.

Stevens Bultman Elliott, of Columbia, for Respondent.

PER CURIAM:  Deeana Burr (Wife) filed for divorce from Wayne Burr (Husband).  The family court issued an order granting the divorce, apportioning marital property and awarding Wife $3,500 in attorney’s fees.  We affirm.

FACTS

Husband and Wife were married for approximately one year when they separated in 2004.  Wife subsequently filed an action for divorce on the grounds of physical cruelty.  In her Complaint, Wife alleged the parties’ equitably divided all marital property at the time of separation, with the exception of a Harley Davidson motorcycle.  Wife sought a divorce, approval of the division of the property, alimony, and attorney’s fees. 

The family court held a final hearing on March 14, 2006.  Wife testified Husband took several items of personal property from the marital home after the parties’ separation.  Wife offered evidence as to the value of the property.  Wife also submitted an Affidavit of Attorney’s Fees.  Husband did not appear at the hearing or offer any testimony. 

The family court issued a decree of divorce on April 13, 2006.  In the decree, the family court ordered Husband to return the personal property he removed from the marital home and valued the personal property at $35,745.  The decree further provided if Husband did not return the personal property within ten days he must pay $300 per month to Wife until he returned the property or paid for the property in full.  In addition, the family court ordered Husband to pay Wife $3,500 in attorney’s fees. 

Husband filed a motion to reconsider the family court’s order pursuant to Rule 59(e), SCRCP, asking the family court to decrease the value of the personal property and extend the time limit for him to return the personal property.  In addition, Husband argued the family court’s award of attorney’s fees was excessive in nature.   The family court denied the motion, and this appeal followed.

STANDARD OF REVIEW

An appellate court, in its review of an appeal from family court, has jurisdiction to find facts in accordance with its own view of the preponderance of the evidence.  Scott v. Scott, 354 S.C. 118, 124, 579 S.E.2d 620, 623 (2003).  “This, however, does not require this Court to disregard the findings of the family court.  Neither is this Court required to ignore the fact that the family court judge, who saw and heard the witnesses, was in a better position to evaluate their testimony.”  Murdock v. Murdock, 338 S.C. 322, 328, 526 S.E.2d 241, 245 (Ct. App. 1999).

LAW / ANALYSIS

I.  Return of Personal Property

Husband argues the family court lacked authority to order him to return the personal property because the property was non-marital.  We disagree.

The family court has the power to apportion marital property.  See S.C. Code Ann. § 20-7-472 (Supp. 2007).  Here, the family court did not find the personal property was non-marital, but treated the property as though it was marital.  Furthermore, the husband failed to raise this issue at trial or in his Rule 59(e), SCRCP, motion.  This issue, therefore, is not preserved for review.  See Washington v. Washington, 308 S.C. 549, 551, 419 S.E.2d 779, 781 (1992) (holding when an appellant neither raises an issue at trial nor through a Rule 59(e), SCRCP, motion, the issue is not preserved for appellate review).

II.  Valuation of Personal Property

Husband argues the family court’s valuation of the personal property was in error.  We disagree.

The family court is charged with the duty of identifying real and personal marital property and determining the property’s fair market value.  Abercrombie v. Abercrombie,  372 S.C. 643, 647, 643 S.E.2d 697, 699 (Ct. App. 2007).  “In the absence of contrary evidence, the court should accept the value the parties assign to a marital asset.”  Id. Moreover, a property owner is competent to offer testimony as to the value of his property.  Cooper v. Cooper, 289 S.C. 377, 379, 346 S.E.2d 326, 327 (Ct. App. 1986).  “A family court may accept the valuation of one party over another, and the court’s valuation of marital property will be affirmed if it is within the range of evidence presented.”  Abercrombie,  372 S.C. at 647, 643 S.E.2d at 699. 

Here, Wife specifically testified and submitted an exhibit as to the value of the personal property.  The family court’s valuation approximates the value of the property Wife presented.  Accordingly, the family court did not err in valuing the personal property. 

II.  Attorney’s Fees

Husband argues the family court erred in awarding Wife $3,500 in attorney’s fees.  Specifically, Husband argues the family court failed to set forth the factors the court considered in awarding attorney’s fees. 

Rule 26(a) of the South Carolina Rules of Family Court requires the family court to “set forth the specific findings of fact and conclusions of law to support the court’s decision.”  Specifically, the family court should consider: (1) the nature, extent, and difficulty of the services rendered; (2) the time necessarily devoted to the case; (3) counsel’s professional standing; (4) the contingency of compensation; (5) the beneficial results obtained; and (6) the customary legal fees for similar services.  Glasscock v. Glasscock, 304 S.C. 158, 161, 403 S.E.2d 313, 315 (1991).   When the family court fails to set forth findings relating to the award of attorney’s fees, however, the appellate court may remand the matter or, where the record is sufficient, make its own findings of fact in accordance with the preponderance of the evidence. Griffith v. Griffith, 332 S.C. 630, 646-47, 506 S.E.2d 526, 535 (Ct. App. 1998).  The family court’s award of attorney’s fees will not be overturned absent an abuse of discretion.  Stevenson v. Stevenson, 295 S.C. 412, 415, 368 S.E.2d 901, 903 (1988).  

Here, the record is sufficient for this Court to make the required findings of fact concerning the award of attorney’s fees. Specifically, the record contains Wife’s attorney fee affidavit.  See Bowers v. Bowers, 349 S.C. 85, 98-99, 561 S.E.2d 610, 617-18 (Ct. App. 2002) (holding the record was sufficient for the appellate court to make sufficient findings of fact where the record contained the wife’s attorney fee affidavit).  Accordingly, we find no abuse of discretion in the award. 

AFFIRMED.

HEARN, C.J., PIEPER, JJ., and GOOLSBY, A.J., concur.