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2008-UP-645 - Lewis v. Lewis

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

Roberta Hardy Lewis, Appellant/Respondent,

v.

Joseph Terrell Lewis, Respondent/Appellant.


Appeal From Williamsburg County
 R. Wright Turbeville, Family Court Judge
 George M. McFaddin, Jr., Family Court Judge


Unpublished Opinion No. 2008-UP-645
Heard October 9, 2008 – Filed November 21, 2008


AFFIRMED IN PART, REVERSED IN PART, AND REMANDED


Donald Bruce Clark, of Charleston, for Appellant-Respondent.

Kevin Mitchell Barth, of Florence and Marian Dawn Nettles, of Lake City, for Respondent-Appellant.

PER CURIAM:  This is a cross-appeal from a divorce decree.  Wife Roberta Hardy Lewis argues (1) the family court should have included the husband’s dental office and dental office parking lot in the marital estate; (2) the family court erred in admitting depositions of two witnesses; and (3) the family court erred in failing to award her reasonable attorney’s fees.  Husband Joseph Terrell Lewis argues (1) the family court erred in dismissing his motions to dismiss the divorce action and to seek an annulment based on the alleged invalidity of Wife’s overseas divorce from one of her prior husbands; (2) Wife should have been denied alimony based on a legal impediment to the parties’ marriage and her alleged adultery; (3) the family court erred in finding the marital home had been transmuted into marital property and in including the entire net equity in the marital estate; (4) the family court erred in its valuation of certain marital assets; (5) the family court erred in awarding Wife certain expert fees; and (6) the terms to effectuate the equitable distribution of the marital assets were unfair and constituted an abuse of discretion.  We affirm in part, reverse in part, and remand.

FACTS AND PROCEDURAL HISTORY

The parties married on June 3, 1989; however, the legality of their marriage was an issue in this litigation.  This would have been Husband’s second marriage and Wife’s fourth marriage.  At the time of their marriage, Husband was forty-two and had an established dental practice.  Wife was thirty-one, had a high-school education, and worked for $6.00 per hour before the marriage.  Wife never held a full-time job during the marriage; however, she worked part-time in various capacities, including one year as a substitute teacher and several years as a temporary organist at the parties’ church.  She also occasionally “filled in” when one of Husband’s front office staff members was unavailable, but never accepted regular employment with Husband’s dental practice despite having been offered full-time work there.

The parties had one child together in 1990, and Husband adopted Wife’s children from two of her prior marriages.  At the time of the litigation, the two adopted children had attained their majority.

Prior to the marriage, Husband purchased the home in which the parties were to reside for the duration of their marriage.  The purchase price for the home and surrounding acreage totaled $157,600.00.  When he purchased the home, Husband paid $27,000.00 down and placed a mortgage for the balance on the property.  The mortgage was refinanced in 1994.  Marital funds, consisting primarily if not entirely of Husband’s earnings during the marriage, were used to pay the indebtedness on the home.  In addition, there were several upgrades done to the home to make it more family-friendly.

According to Husband, the parties’ relationship began to decline around 1994, about ten years before the parties’ breakup.  Husband contended the tension in the marriage resulted from (1) Wife’s spending habits and refusal to manage her debt responsibly; (2) Husband’s anxiety disorder, which he claimed came about as a result of overloading himself with financial and physical demands, his mother’s death, and Wife’s refusal to help deal with his stress; (3) Wife’s decreasing sexual interest; and (4) disagreements between the parties concerning financial matters.

On July 23, 2004, Wife commenced this action, seeking joint custody of the parties’ minor child, child support, alimony, equitable division of the marital property, attorney’s fees, and other relief.  On September 10, 2004, Husband answered and counterclaimed.  In his responsive pleadings, Husband admitted the parties were husband and wife; however, he also raised as a defense and by way of a motion to dismiss his allegation that Wife’s divorce from one of her previous husbands was not valid in South Carolina.  Based on this defense, Husband asserted the parties’ marriage should be annulled and Wife should therefore be barred from receiving alimony.  Husband also requested custody of the parties’ child, child support, equitable division of the marital property, attorney’s fees, and other relief.

On September 22, 2004, the parties appeared before the family court for a temporary hearing.  By order dated September 29, 2004, the court denied Husband’s motion to dismiss, awarded Husband temporary use of the family home and contents, awarded Wife temporary use of the “mother-in-law house” on the property and its contents, awarded the parties temporary joint custody with primary custody to Wife and Husband paying temporary child support, awarded Wife temporary alimony, and granted other relief.  On September 8, 2005, pursuant to a motion filed by Wife, the family court issued an amended temporary order granting custody of the parties’ child to Wife, with Husband paying child support and receiving reasonable visitation.

The matter came to a final hearing on September 13 and 15, 2005.  At the call of the case, Wife moved to supplement her complaint to seek a divorce on the ground of a one-year separation and resumption of her maiden name.  Husband did not object, and the motion was granted.  The issue of the divorce was bifurcated from the remaining issues in the case, and on October 17, 2005, an order was filed granting the divorce.

On January 23, 2007, the family court issued another order addressing the remaining issues of alimony and equitable distribution.  In the order, the court noted the parties had settled the issues of custody, visitation, and child support, as well as possession and ownership of certain items.  The family court went on to find, among other things, (1) there was no marital misconduct by either party causing the breakup of the marriage or adversely affecting the economic circumstances of the marriage; (2) Wife was not entitled to alimony; (3) the home in which the parties resided, though acquired by Husband before the marriage, had been transmuted into marital property and was subject to equitable division; and (4) neither Husband’s dental office property, which was acquired before the marriage, nor a parking lot acquired during the marriage, was marital property.  Regarding valuation of certain assets, the family court adopted the values given by Wife’s experts, noting Husband, instead of offering his own expert witnesses on these matters, merely disputed the values attested to by Wife’s experts.  The court then found the total value of the marital assets to be $1,434,738.00, which it divided equally between the parties.  Although the family court declined to award Wife additional attorney’s fees beyond what she received at the temporary hearing, Husband was required to pay $33,066.25, the entire amount of what Wife claimed in expert witness fees, not later than sixty days from the signing of the order.

In order to effectuate the division, the family court found Husband owed Wife $476,644.50.  Finding Husband would probably would not be able to borrow sufficient funds to pay this amount, the court ordered (1) the marital residence to be sold; (2) Husband to pay Wife $2,500.00 per month toward her equitable division award until the sale of the marital residence; and (3) the balance of the equitable distribution award to be paid within ninety days of the sale.

Both parties moved to alter or amend the judgment.  Pursuant to these motions, the family court issued an amended final order, which was filed May 31, 2007.  In the order, the court awarded Wife permanent periodic alimony in the amount of $2,000.00 per month,[1] but changed the division of the marital estate to award Husband fifty-five percent of the marital assets and Wife forty-five percent.  The expert witness fees assessed against Husband were reduced to $23,066.25 based on a finding that the services of one of Wife’s experts were incurred in connection with parcels of property that Wife conceded were not marital.  The deadline for Husband to pay the balance of Wife’s share of the equitable distribution was changed to “such time as the marital residence is sold or one year plus forty five days, whichever occurs first,” with monthly payments of $2,500.00 during the interim.  Both parties appeal.

DISCUSSION

Wife’s Appeal

1.  We disagree with Wife’s argument that the family court erred in declining to include Husband’s dental office in the marital estate.  There was no dispute that Husband acquired and paid for the office before the parties’ marriage; therefore, Wife, as the party claiming transmutation had the burden to produce objective evidence that the parties considered the asset to be marital.  Deidun v. Deidun, 362 S.C. 47, 57, 606 S.E.2d 489, 495 (Ct. App. 2004).  

Citing Trimnal v. Trimnal, 287 S.C. 495, 339 S.E.2d 869 (1986), Wife argues she has carried this burden because there was evidence that the office had been refinanced during the marriage and the loans incurred in the refinancing had been paid off with marital funds, namely, Husband’s earnings during the marriage.  Unlike the indebtedness in Trimnal, however, the indebtedness on the asset at issue here was incurred for family purposes, and the reason business property was used as collateral for the loans was to enable the parties to receive an income tax advantage.  Under these circumstances, we are reluctant to disturb the family court’s finding that the dental office had not been transmuted into marital property; rather, we agree with Husband that the financial obligations encumbering this asset amounted to only “mere use” of separate property to support the marriage.  See Johnson v. Johnson, 296 S.C. 289, 295-96, 372 S.E.2d 107, 111 (Ct. App. 1988) (“The mere use of separate property to support the marriage, without some additional evidence of intent to treat it as property of the marriage, is not sufficient to establish transmutation.”).  Although marital funds were used to discharge these obligations, the specific facts of this case do not support a finding that such funds were used to “build equity” in the property.  Id.  Rather, they were used to pay down loans that provided beneficial tax consequences that would not have been available but for Husband’s decision to use his separate property as security.

2.  We agree, however, with Wife’s argument that the family court should have included the dental office parking lot in the marital estate.  Unlike the dental office, the adjoining parking lot was acquired during the marriage with marital funds and is therefore presumptively marital property.  See S.C. Code Ann. § 20-7-473 (Supp. 2007) (defining “marital property” as “all real and personal property which has been acquired by the parties during the marriage and which is owned as of the date of the filing or commencement of marital litigation . . . regardless of how legal title is held”).  Indeed, Husband asserts in his respondent’s brief that, although the parking lot is arguably marital, it is possible the court felt “that the Wife had not earned an entitlement to a share of this particular property.”  This argument, however, apparently ignores the principle that Wife did not need to “earn an entitlement” to property that is prima facie marital in nature.  We therefore remand this issue to the family court with instructions that the parking lot be included in the marital estate and allocated to Husband.

3.  Wife also contends the family court erred in admitting over her objection two depositions in which the deponents, neither of whom appeared at trial, purportedly gave information to support Husband’s claim that Wife was not entitled to alimony because she had committed adultery.  Wife objected to the admission of the depositions on the ground that Husband’s attorney, in merely informing the court that he was unable to locate the deponents to serve them with subpoenas, did not make an adequate showing that the witnesses were unavailable.  We agree.

Although Husband is correct that Rule 25 of the South Carolina Family Court Rules allows for a more relaxed approach to discovery, the focus of that rule is on “the prompt voluntary exchange of information and documents by parties prior to trial.”  As to the present dispute, which concerns the trial itself, we agree with Wife that the bare assertion by counsel that a witness is unavailable is not a sufficient showing to admit that witness’s deposition.  See Archie Bell Constr. Co. v. Norman, 311 S.C. 84, 86, 427 S.E.2d 689, 691 (Ct. App. 1993) (finding no reversible error in the trial judge’s refusal to admit a deposition in the deponent’s absence and noting the party proffering the deposition “made no showing, by affidavit, sworn testimony, or other evidence, as they were required to in absence of a stipulation”) (emphasis added).[2]

4.  Wife argues the family court erred in refusing to award her additional attorney’s fees at the final hearing, specifically in that the court failed to address the four factors set forth in E.D.M. v. T.A.M., 307 S.C. 471, 476-77, 415 S.E.2d 812, 816 (1992), namely, (1) the parties’ ability to pay their own fees, (2) the beneficial results obtained by counsel, (3) the financial conditions of the parties, and (4) the effect of the fee on each parties’ standard of living.  We find no error. 

Wife contends she incurred a total of $53,247.50 in attorney’s fees, of which the family court had already awarded her $15,000.00 at the temporary hearing; thus, a balance of $38,247.50 remained.  As acknowledged in Wife’s appellant’s brief, the family court ordered Husband to pay her $133,109.00, representing one half of the liquid assets he received in the equitable division, within forty-five days from the signing of the divorce decree.  Although a significant portion of this amount was to be paid by way of a Qualified Domestic Relations Order, it appears undisputed that Wife would receive within the forty-five day time limit an amount in excess of the balance owing in legal fees.  Considering that Husband was also required to pay monthly installments on the equitable division award, alimony, and child support totaling $6,684.00, there seems to be no basis for Wife’s assertion that “[s]he clearly had no means of paying the balance of her attorney’s fees.”  Finally, insofar as the record indicates that considerable pretrial time was spent in fruitless pursuits of concealed assets, investment losses, and property that Wife later conceded was nonmarital, we disagree with Wife’s contention that the family court failed to give due consideration to the beneficial results obtained by her attorney.  In our view, the family court acted within its discretion in refusing to award additional attorney’s fees at the final hearing.  See Upchurch v. Upchurch, 367 S.C. 16, 28, 624 S.E.2d 643, 648 (2006) (stating that in a family court matter, “[t]he award of attorney’s fees is left to the discretion of the trial judge and will only be disturbed upon a showing of abuse of discretion”). 

Husband’s Appeal

5.  Husband first contends the family court erred in denying his motion to dismiss Wife’s requests for separate support and maintenance and alimony.  This motion was based on his allegation that the first of Wife’s three prior divorces was invalid.  As a corollary to this argument, Husband also maintains Wife is not entitled to alimony because there was a legal impediment to the parties’ marriage.  We find no reversible error. 

When the matter was called for trial on September 13, 2005, Wife moved to amend her pleadings to request a divorce on a one-year separation and Husband did not object to the grant of this relief.  The issue of the divorce was bifurcated from the remaining issues in the case, and on October 17, 2005, the family court filed a final decree of divorce that made no mention of Husband’s request for an annulment.  Husband did not timely move to alter or amend this order; therefore, we hold the issue of an annulment was not preserved for appeal.  See Noisette v. Ismail, 304 S.C. 56, 58, 403 S.E.2d 122, 124 (1991) (holding the court of appeals improperly addressed an issue that the “circuit court did not explicitly rule on” when the appellant did not raise the issue in a motion to alter or amend).[3]

6.  Husband argues the family court erred in finding the family home, which he purchased before the parties’ marriage, had been transmuted into marital property.  He maintains the factors cited by the court to support its finding are evidence of only “mere use” of the asset.  In the alternative, Husband contends Wife is entitled to only a special equity in the property reflecting the reduction in the mortgage during the parties’ marriage and several improvements, including a “mother-in-law” cottage, a swimming pool, and certain additions to the home.  We reject these arguments.

The primary question in determining whether an individually owned asset has been transmuted into marital property is one of intent, and the party asserting transmutation “must produce objective evidence showing that, during the marriage, the parties themselves regarded the property as common property of the marriage.”  Ray v. Ray, 296 S.C. 350, 352, 372 S.E.2d 910, 911 (Ct. App. 1988).  Here, although Wife’s name was never placed on the title, the home was used exclusively for marital purposes, having been purchased by Husband in contemplation of the marriage and serving as the marital residence of about fifteen years, and marital funds paid for upgrades to the home during the parties’ marriage to make the home more family friendly.  We therefore hold the evidence supports the family court’s finding that the family home, though acquired by Husband before the marriage, had been transmuted into marital property.  See Johnson, 296 S.C. at 295-96, 372 S.E.2d at 111 (including as evidence of transmutation the use of the asset in question exclusively for marital purposes and using marital funds to build equity in the property).

7.  We agree, however, with Husband’s argument that the family court erred in accepting the conclusion of Wife’s appraiser that the value of the marital home was $800,000.00. 

As the family court correctly noted, Husband himself offered no expert testimony on value.  Instead, he merely disputed the valuation by Wife’s appraiser and offered his opinion as to what the home was worth.  Moreover, we recognize the principle that “a court’s valuation of marital property will be affirmed if it is within the range of evidence presented.”  Pirri v. Pirri, 369 S.C. 258, 264, 631 S.E.2d 279, 283 (Ct. App. 2006).  In this case, however, Husband has expressed valid concerns that the family court automatically accepted the opinion of Wife’s appraiser merely because the appraiser was deemed to be an expert and never considered whether that opinion was actually supported by the evidence on which it was purportedly based.  Cf. Sauers v. Poulin Bros. Homes, Inc., 328 S.C. 601, 605, 493 S.E.2d 503, 505 (Ct. App. 1997) (stating the fact that expert testimony was not directly refuted does not automatically entitle the party offering such testimony to a directed verdict).

The appraiser elected to use a sales comparison approach to determining the value of the marital home and chose three comparable sales for the appraisal, two in Georgetown County and one in Williamsburg County.  Both of the Georgetown County properties were located near rice fields and one of these properties had deep water access.  Neither feature is present in the property at issue here.  The third property, located in Williamsburg County, where this action is based, had an indicated value significantly lower than those assigned to the Georgetown properties.  Based on his view that the higher valued property in Georgetown was closest in similarity to the marital home, the appraiser valued the home at $800,000.00. 

We are also sympathetic to Husband’s concerns that, contrary to the assumptions and general principles on which Wife’s appraiser relied, the value assigned to the marital home did not take into account the terms of the decree itself, which set a deadline for Husband to pay Wife her share of the equitable distribution in cash.[4]  Finally, the appraiser’s own remarks comparing his assessment to an attempt to locate a deer in the woods and his admission he could be “as wrong as right” strongly suggest the family court’s finding about the worth of the marital home is not supported by the record.  We therefore remand this issue to the family court, which, in its discretion, may accept additional evidence from the parties or order supplemental information on its own motion.

8.  In his brief, Husband challenged the family court’s valuation of a hunting tract that was included in the marital estate and allocated to him.  At oral argument, however, his attorney stated that the hunting tract had been sold and the issue is now moot; therefore, we do not address this issue.

9.  Husband further argues the family court abused its discretion in ordering him to pay Wife the bulk of her equitable distribution in cash.  In support of this argument, he cites a statement from the amended final decree in which the family court acknowledged he would not be able to borrow sufficient funds to make this payment and would have to sell the marital residence to satisfy this obligation.  Because it appears from Husband’s brief and his attorney’s remarks before this Court that the crux of this complaint is the value assigned by the family court to the marital residence, and because we have remanded several issues concerning the equitable distribution to the family court, we hold the terms for effectuating the division shall likewise be remanded to the family court for reconsideration.  See Ellerbe v. Ellerbe, 323 S.C. 283, 297, 473 S.E.2d 881, 889 (Ct. App. 1996) (remanding an issue to the family court because related issues were also remanded).

10. Husband further argues that the family court erred in requiring him to pay expert fees totaling $23,066.25, all of which were incurred in relation to the equitable division, and suggests as an alternative that these fees be prorated in the same percentages as the equitable division award itself.  We agree.

Litigation expenses in the family court are subject to the considerations as counsel fees.  Patel v. Patel, 359 S.C. 515, 533, 599 S.E.2d 114, 124 (2004).  In the present case, we hold that the decision to make Husband responsible for fees that were in essence a cost to enable the family court to make its ultimate award was an abuse of discretion, especially in view of our decision to remand one of the issues for which part of the expert fees was incurred and the fact that a significant portion of these fees yielded no beneficial result to Wife.  We therefore direct the family court on remand to apportion the expert fees, including any additional fees incurred during the remand, between the parties in the same percentages and their respective shares of the marital estate.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

SHORT, THOMAS, and PIEPER, JJ., concur.


[1]  The amended order states “that the Plaintiff shall pay to the Defendant permanent, periodic alimony . . .”; however, there seems to be no dispute that Husband, not Wife, was ordered to pay alimony.

[2]  Our determination that the depositions at issue were not properly admitted makes it unnecessary to address the arguments that Husband raises in his appeal that (1) the depositions “should have led to the inescapable conclusion that the Wife committed adultery and was not entitled to alimony”; and (2) the family court therefore erred in failing to consider them.  See Whiteside v. Cherokee County Sch. Dist. No. One, 311 S.C. 335, 340-41, 428 S.E.2d 886, 889 (1993) (noting the appellate court need not address remaining issues when its resolution of a prior issue is dispositive).  Similarly, we deem it unnecessary to address the argument Wife made in her respondent’s brief that Husband could not assert adultery as a defense to her claim for alimony because he failed to plead this issue.

[3]  Husband raised the issue in a motion to alter or amend after the remaining issues were decided by the family court; however, that motion was dated February 2, 2007, more than one year after the decree of divorce.

[4]  In the appraisal, “market value” is defined as “[t]he most profitable price which a property should bring in a competitive and open market under all conditions requisite to a fair sale, the buyer and seller, each acting prudently, knowledgeably and assuming the price is not affected by undue stimulus.”