Supreme Court Seal
South Carolina
JUDICIAL DEPARTMENT
Site Map | Feedback
2008-UP-245 - Wolf v. Wolf

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

Marion H. Wolf, Respondent,

v.

Robert L. Wolf, Appellant.


Appeal From Calhoun County
 William J. Wylie, Jr., Family Court Judge


Unpublished Opinion No. 2008-UP-245
Heard March 7, 2008 – Filed April 25, 2008   


AFFIRMED


Stephen R. Fitzer, of Columbia, for Appellant.

John G. Felder and Thomas Derrick Felder, both of St. Matthews, for Respondent.

PER CURIAM:  The family court granted Marion H. Wolf (Wife) and Robert L. Wolf (Husband) a divorce on the ground of one year’s separation and divided the parties’ property.  Husband appeals, asserting the family court erred in awarding the marital home to Wife, in finding he was in possession of some of Wife’s jewelry, in awarding Wife an additional $50,000 from an investment account, and by admitting evidence of Husband’s conviction for tax evasion.  We affirm.

FACTS

Wife married Husband, a physician, in New York City on November 21, 1985.  Wife was then 42, Husband was 57.  It was the second marriage for both parties and no children were born of the marriage.  At the urging of Husband, the parties executed a prenuptial agreement on September 13, 1985.  The primary relevance of the prenuptial agreement to this litigation was the parties’ intent to treat as separate, nonmarital property all property titled in their respective individual names.  This contractual arrangement stemmed from Husband’s prior difficulties with the Internal Revenue Service.

Husband and Wife originally lived in New York City, where Husband maintained his medical practice, and in a home in Danbury, Connecticut (the “Connecticut Property”).  Husband acquired the Connecticut Property before the parties’ marriage, but Husband transferred title to his son to keep it out of his name for tax and other purposes.  The son deeded the Connecticut Property to Wife in 1987 for $1.00.    

The couple moved to South Carolina in 1994 and acquired a horse farm (the Farm) known as “Brigadoon” in St. Matthews.  The Farm was purchased in Wife’s name only for the stated price of $240,000.  The parties separated in October 2002. 

By order filed April 10, 2006, the family court granted the parties a divorce on the ground of one year’s separation.  At trial, only Wife challenged the validity of the prenuptial agreement.  The court found the prenuptial agreement “is valid under New York and South Carolina law.”  The court granted Wife the Farm (including livestock), finding it was her separate property under the terms of the prenuptial agreement, as well as certain personal property.  Husband was also awarded personal property.  Husband was ordered to return certain jewelry to Wife.  To ensure Husband’s return of the jewelry, Wife was authorized to withhold $50,000 from Husband’s share of an investment account with Brown & Company Securities Corporation (the Brown account).  The account had a balance of just over one million dollars.  Husband and Wife were ordered to equally divide the balance of the Brown account after an initial $50,000 distribution was made to Wife.  Wife’s claim for alimony was denied, and each party was ordered to pay his or her own attorney’s fees.  Husband appeals.[1]

LAW/ANALYSIS

I.  The Farm  [Husband’s Issues I, II, IV & VI]

Husband argues the family court erred in awarding the Farm to Wife.  Specifically, Husband asserts the family court erred in awarding the Farm to Wife based on its finding Wife purchased the Farm in her name with proceeds from the sale the Connecticut Property, which had been gifted to her.  Husband states Wife had no tangible assets in her name when they married and the court erred by not considering an equitable division of the Farm and livestock because marital property, regardless of how title is held, is subject to equitable division.  Husband also asserts the family court erred as a matter of law in failing to find the marital estate was to be divided in accordance with the prenuptial agreement. 

Husband argues in the alternative that the family court erred in failing to find the Farm was transmuted into marital property because it was utilized by the parties in support of the marriage.  Husband states his income was used to maintain Wife and that Wife “never exercised any independence to demonstrate that she intended the marital residence to be non-marital property.” 

Husband’s arguments are foreclosed by the prenuptial agreement, which he did not challenge at trial.

Article II of the parties’ prenuptial agreement, entitled “Separate and Marital Property,” provides in section three as follows:

3.  Each of the parties agrees that the property described hereafter shall remain the separate property of the other party:

(a) all property, whether real or personal, belonging to or owned by the other party at the time of their marriage, including assets acquired by each of them in their separate names while living together outside the marital relationship;

(b)  all property acquired by the other party out of the proceeds or income from property owned at the time of the marriage, or attributable to appreciation in value of said property, whether the enhancement is due to market or economic conditions or to the contributions, services, skill or efforts of either of the parties to this agreement;

(c)  all property hereafter acquired by the other party by gift, devise, bequest or inheritance.  [Emphasis added.] 

In awarding the Farm to Wife, the family court reasoned the Connecticut Property was a gift to her and that the proceeds from the sale of the Connecticut Property were used to purchase the Farm in her name only; therefore, the Farm remained Wife’s sole property in accordance with the terms of the prenuptial agreement.    

We believe the prenuptial agreement controls the disposition of the Farm.  However, our analysis of the agreement focuses on a different provision than the one relied upon by the family court.  See Rule 220(c), SCACR (allowing an appellate court to affirm on any ground appearing in the record).  Article II, section four of the agreement specifically provides as follows:

4.  With respect to any “marital property” that may be acquired or accumulated during the marriage, the parties do hereby mutually waive, release and forego any and all rights and claims of every kind, nature and description, in and to the property or assets real or personal, of or in the name of the other, regardless of its nature, or wheresoever situated, and each party shall during his or her lifetime keep and retain sole ownership, control and enjoyment of all such property, real or personal, now owned or hereafter acquired by him or her, free and clear of any claim by the other.  This provision is intended to and shall serve as a complete and absolute waiver and release by each party to the other of any and all claims they may now or hereafter have with respect to the property, real and personal, now or hereafter owned by the other.  [Emphasis added.] 

This section provides that property “acquired or accumulated” by either party after the marriage will remain that party’s separate property.  Furthermore, the parties waive any right to property “of or in the name of the other.”  Although the reasons for Wife having title to the Farm may be disputed, there is no question that it is titled solely in her name.  Consequently, the application of this provision results in Husband waiving any claim to the property and Wife retaining it as her own.

This is an unusual provision as it premises the award of property acquired after the marriage on title as opposed to any contribution to its acquisition, whether financial or otherwise.  However, our courts have supported the right of the parties to define their property rights by contractual agreement:  “[P]arties are free to contractually alter the obligations which would otherwise attach to marriage.”  Hardee v. Hardee, 355 S.C. 382, 387, 585 S.E.2d 501, 503 (2003). 

In Hardee, our supreme court cited with approval the following test adopted by this court to be used when determining whether a prenuptial agreement should be enforced:  “(1) Was the agreement obtained through fraud, duress, or mistake, or through misrepresentation or nondisclosure of material facts?  (2) Is the agreement unconscionable?  (3) Have the facts and circumstances changed since the agreement was executed, so as to make its enforcement unfair and unreasonable?”  Id. at 389, 585 S.E.2d at 504. 

In the current appeal, the question of enforceability is not before us.  Wife questioned the enforceability of the agreement in the family court, but she does not appeal the family court’s finding that the prenuptial agreement is valid.  Husband has argued only that the family court misinterpreted the agreement or did not apply it, but he does not argue that the agreement is unenforceable.  Consequently, the family court’s finding that the agreement is valid is the law of the case.  See, e.g., Dreher v. Dreher, 370 S.C. 75, 634 S.E.2d 646 (2006) (stating a ruling that is unappealed becomes the law of the case and will not be considered further on appeal).

The prenuptial agreement was no doubt intended to protect Husband since he had the vast majority of assets coming into the marriage.  Nevertheless, the parties were aware of the terms of the agreement and made the decision to title the Farm solely in Wife’s name.  The award of the Farm to Wife as her separate, nonmarital property may not appear equitable, but it is the result called for under the prenuptial agreement orchestrated by Husband.  As noted, the validity of the prenuptial agreement is the law of the case.  Thus, in light of the plain language of the agreement, we affirm the family court’s ruling that the Farm is the property of Wife.[2] 

II.  Jewelry  [Husband’s Issue III]

Husband next contends the family court abused its discretion in finding he was in possession of some of Wife’s jewelry. 

There is evidence in the record, as outlined by the family court, that Husband had access to a locked cabinet where some of Wife’s jewelry was kept along with her United States and British passports.  When Wife checked the cabinet to retrieve her items, everything was missing.  Wife’s U.S. passport later turned up in Husband’s possession, and he returned it to Wife’s attorney so she could attend her father’s funeral.  Husband denied that he had removed Wife’s jewelry.  The family court found, however, that Husband removed this jewelry from the cabinet since he had removed Wife’s U.S. passport, which was kept in the cabinet with the jewelry. 

We hold the evidence supports the family court’s finding.  Although Husband correctly asserts there was no police report made of a theft, we do not think this fact is determinative.  If Wife believed the jewelry was simply retained by Husband, as opposed to stolen by an unknown third party, she might have reasonably believed the issue could be resolved in the divorce proceedings.  In this case, the family court judge saw and heard the witnesses and was in a better position to evaluate their demeanor and to assign weight to their credibility.  See Strickland v. Strickland, 375 S.C. 76, 82, 650 S.E.2d 465, 469 (2007) (“[A]ppellate courts should be mindful that the family court, who saw and heard the witnesses, sits in a better position to evaluate credibility and assign comparative weight to the testimony.”).  We find no error in the family court’s determination in this regard.

III.  The Brown Account  [Husband’s Issue V]

Husband contends the family court erred in awarding Wife a $50,000 distribution from the Brown account. 

In the motion to alter or amend that Husband submitted to the family court, he challenged the $50,000 distribution on the following basis:

8.  Defendant moves [the family court] to reconsider its finding that the defendant should be charged with the $50,000 disbursement from the Brown account, since this disbursement was authorized by the court as a necessary and proper expenditure for defendant’s needs pendente lite

On appeal, however, Husband asserts we should reverse the $50,000 award because it was not provided for in the court’s memorandum of instructions for preparing the order.  As Husband argues for the first time on appeal, the $50,000 award was “gratuitously” placed in the order by Wife’s counsel, who drafted the order.  Although we cannot find this provision in the family court’s instructions, we conclude this issue is not properly before us for review.  Husband did not make the argument in the trial court that he now urges on appeal, and a party cannot assert error based on one ground at trial and a different ground on appeal.  See, e.g., McKissick v. J.F. Cleckley & Co., 325 S.C. 327, 344, 479 S.E.2d 67, 75 (Ct. App. 1996) (stating the same ground for an objection must be argued to the trial court and on appeal to preserve an alleged error for review, and a challenge on a specific ground may not be raised for the first time on appeal).

IV.  Evidence of Prior Conviction  [Husband’s Issue VII]

Husband lastly contends the family court erred in allowing Wife’s attorney to question him about his conviction for tax evasion.  He asserts the evidence was inadmissible under Rule 609, SCRE because more than ten years had elapsed since the date of his conviction. 

Rule 609(a)(2), SCRE provides that for the purpose of attacking the credibility of a witness, “evidence that any witness has been convicted of a crime shall be admitted if it involved dishonesty or false statement, regardless of the punishment.”  Under Rule 609(b), SCRE, if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from confinement, whichever is later, evidence of the conviction may not be used “unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect.”  Rule 609(b) further requires that advance written notice of the intent to use such evidence be given to the other party.  Id.

During Wife’s direct examination, she testified that she did not know at the time she married Husband that he had a prior conviction for tax evasion.  She stated she did not find out about it until “years later.”  Husband’s counsel objected, arguing they were “going to try to introduce [evidence] about a conviction that is more than [ten] years old” and “[u]nder [Rule] 609, they can’t do that.”  Wife’s counsel stated the information was offered to show that Husband did not disclose the information to Wife.  The family court overruled the objection without comment and no further argument was made by either party.    

During Husband’s direct testimony, Husband asserted that he had transferred some property out of his name due in part to “income tax problems.”  On cross-examination, Wife’s counsel asked him about the nature of the tax difficulties.  Husband’s counsel did not object to this line of questioning, and Husband answered, “The difficulty was the assertion that I didn’t pay all my taxes.  The outcome was that I was convicted of that.”  Husband stated he paid a fine and served a sentence of three months in prison.    

On appeal, Husband summarily contends evidence of his prior conviction was admitted in violation of Rule 609 because more than ten years had elapsed since the conviction.  Convictions more than ten years old may be admitted after the court performs a balancing test.  Here, the family court did not perform a balancing test.  No argument was made at trial regarding the prejudicial nature of the conviction versus its probative effect.  In addition, this passing reference was harmless as Husband has demonstrated no prejudice.  First, the evidence was cumulative, as it came in without objection on another occasion via Husband’s own testimony.  Second, the family court noted in its memorandum for preparing the order that neither Wife nor Husband were credible witnesses and that Husband’s testimony was “often evasive and misleading.”  Thus, there were other inconsistencies in the testimony that caused the family court to have concerns about Husband’s credibility that were unrelated to his tax problems.  We have carefully reviewed the record, and we find ample support (beyond Husband’s stale conviction for tax evasion) for the family court’s finding that Husband’s testimony lacked credibility.

Accordingly, we find Husband has not established reversible error.  See, e.g., Jamison v. Ford Motor Co., 373 S.C. 248, 261, 644 S.E.2d 755, 761 (Ct. App. 2007) (“To warrant reversal based on the admission or exclusion of evidence, the complaining party must prove both the error of the ruling and the resulting prejudice.”).

CONCLUSION

Based on the foregoing, we conclude (1) the Farm is the property of Wife pursuant to the terms of the parties’ prenuptial agreement; (2) evidence in the record supports the family court’s ruling that Husband retained possession of some of Wife’s jewelry; (3) the issue concerning the $50,000 distribution from the Brown account is not preserved for our review; and (4) Husband has shown no reversible error in the admission of testimony concerning his prior conviction for tax evasion. 

AFFIRMED.

HUFF, KITTREDGE, and WILLIAMS, JJ., concur.


[1]  Husband’s appellate counsel did not represent Husband at trial.

[2]  Because of our disposition of this issue, we need not address the other arguments Husband raises regarding the Farm.  We note, however, that Husband’s argument regarding transmutation is not preserved for appeal as it was raised for the first time, and then only summarily, in Husband’s return to Wife’s reply to his motion to alter or amend the judgment.