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2009-UP-008 - Fuller v. Fuller

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

June T. Fuller, Appellant/Respondent,

v.

James T. Fuller, Respondent/Appellant.


Appeal From Greenville County
Robert N. Jenkins, Sr., Family Court Judge


Unpublished Opinion No. 2009-UP-008
Submitted October 22, 2008 – Filed January 7, 2009  


AFFIRMED


J. Falkner Wilkes, of Greenville, for Appellant-Respondent.

Bruce Wyche Bannister, of Greenville, for Respondent-Appellant.

PER CURIAM:  This is a cross-appeal in a divorce action.  June T. Fuller (Wife) alleges error in the inclusion of her premarital home in the marital estate and the decision of the family court to accept the valuation and distribution of the marital assets proposed by James T. Fuller (Husband).  Husband alleges error in the family court’s assignment of one hundred percent of the marital debt to him.  We affirm.[1]

FACTS AND PROCEDURAL HISTORY

The parties married in 1979 and separated in 2003.  No children were born of the marriage.  When they married, Wife had been employed with Hoechst Celanese for twelve years.  Husband at the time was unemployed, having been fired from his most recent job.  Shortly after the marriage, Wife quit her job and bought a trucking business, and Husband worked for her as a truck driver.

The marital residence was a house on Heathwood Drive, in Taylors, South Carolina.  Wife purchased the house in 1969 with her former husband.  Wife paid her former husband $22,500 for his half-interest in the home before she married Husband.

When Husband and Wife married, Wife had a mortgage of $22,000 on the home.  The mortgage was paid off by 1982 with funds Wife earned both before and during her marriage to Husband.  According to Wife, although Husband was working for her in her trucking business, he did not contribute any funds toward payment of the mortgage.  During their marriage, the parties added a screened-in porch to the house and made it into a Florida room.  Although Wife maintained she paid for the improvement from her earnings, she acknowledged Husband performed the physical labor.  Husband also maintained he contributed toward other improvements, including glass in the side of the carport, an additional building behind the house, and porch cement.

The parties separated on February 14, 2003.  According to Wife, the separation occurred following an altercation between the parties over a tax refund.  Wife filed a complaint in the family court on February 21, 2003, and amended it in May 2003.  Husband answered and counterclaimed, and Wife filed a reply. 

The matter came before the family court on June 23, 2004, and January 20, 2005, for a final hearing.  At the end of the first full day of the hearing, the family court granted Husband’s motion to bifurcate the proceedings.  By order issued at the conclusion of the first hearing on June 23, 2004, the parties were divorced.

On March 15, 2005, the family court issued an order addressing the remaining issues.  Of relevance to this appeal, the family court (1) found Wife had shown sufficient evidence of physical abuse by Husband constituting marital misconduct; (2) ordered that “[a]ll of the marital debts listed on the Financial Declarations and in existence at the time of the filing of the original Complaint in February 2003 shall be the sole responsibility of [Husband]”; and (3) identified and valued the marital assets using a list provided by Husband and found that a 50-50 division of the marital assets was proper.  The family court also found Husband in contempt for certain misrepresentations concerning a workers’ compensation settlement, his social security income, and his ownership of a motorcycle.  As a result, Husband was ordered to pay $12,875 toward Wife’s attorney’s fees.  Nevertheless, the court based its equitable division award primarily on a statement Husband provided that listed, valued, and divided the marital assets, instead of a similar statement provided by Wife.  Husband’s statement included as a marital asset the Heathwood Drive home that Wife had purchased with her former husband and had served as the parties’ residence before their separation.

Wife moved to alter or amend the order, and the motions were heard December 13, 2005.  Following an order issued later that month, both parties appealed.

DISCUSSION

1.  Wife alleges error in the family court’s inclusion of the Heathwood Drive residence in the marital estate, arguing (1) there were no specific findings of fact in the family court’s order that would support a finding of transmutation; and (2) Husband failed to prove she had intended that the home would be transmuted into marital property.  We find no reversible error.[2]

Wife is correct that the appealed order is devoid of any pertinent findings of fact regarding transmutation of the home; however, “if this Court can make its own findings from its review of the evidence, remand is not necessary.”  Sutton v. Sutton, 291 S.C. 401, 411, 353 S.E.2d 884, 889 (Ct. App. 1987).  Based on our review of the record on appeal in this case, we find there is ample evidence of more than “mere use” of the home that would support a finding that, regardless of indications that Wife always intended to retain sole title to the property, it was used in support of the marriage so as to demonstrate the parties’ intent to make it a marital asset.  See Pool v. Pool, 321 S.C. 84, 88, 467 S.E.2d 753, 756 (Ct. App. 1996) (stating transmutation of nonmarital property may occur if the property (1) becomes so commingled with marital property as to be untraceable; (2) becomes jointly titled; or (3) 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).  Although Wife maintains Husband did not contribute directly to the mortgage payment, she acknowledges he was working while the mortgage was being paid off and his earnings assisted the parties in meeting their other expenses during this time.  In addition, the parties lived in the home almost twenty-four years, during which Husband contributed his physical labor to various improvements.[3]

2.  Wife further argues the family court erred in adopting Husband’s proposal for division of the marital property, apparently rejecting the proposal she submitted.  We find no error.

In the appealed order, the family court gave no reason for why it elected to use Husband’s marital assets sheet instead of Wife’s.  In addition, Wife emphasizes Husband’s misconduct both before and during the proceedings, including his physical abuse of her and his misrepresentation to the family court about his assets and income.  Wife, however, did not give any specific reasons as to why the family court’s valuation and division of the marital assets were incorrect, nor did she provide appraisals or other independent evidence to support her valuations.  Moreover, although the family court elected to use Husband’s marital assets sheet, it also made adjustments for Husband’s misrepresentations and imposed sanctions on him by ordering him to pay Wife’s attorney’s fees.  Under these circumstances, we hold Wife has not presented a basis on which to find the family court abused its discretion in dividing the marital assets and therefore decline to disturb the provisions of the appealed order addressing this issue.  See Craig v. Craig, 365 S.C. 285, 290, 617 S.E.2d 359, 361 (2005) (“The division of marital property is within the discretion of the family court judge and the judge’s decision will not be disturbed on appeal absent an abuse of discretion.”).

3.  Husband also appeals the decision of the family court.  He argues that the family court abused its discretion in assigning all of the marital debt to him.  Husband avers such an assignment of debt (1) is a violation of the statutory requirement that marital debt be equitably divided; and (2) made the ultimate division of the marital estate inequitable.  We disagree.

The laws of this state provide fifteen factors for the court to consider in dividing and apportioning marital property. S.C. Code Ann. § 20-7-472 (Supp. 2007).  In dividing the marital estate the family court judge has wide discretion, and the judgment of the family court will not be disturbed on appeal absent an abuse of discretion.  Craig, 365 S.C. at 290, 617 S.E.2d at 361; Wood v. Wood, 292 S.C. 43, 45, 354 S.E.2d 796, 798 (Ct. App. 1987); Gay v. Gay, 288 S.C. 74, 75, 339 S.E.2d 532, 533-34 (Ct. App. 1986). 

In marriages of significant length, this Court has approved “equal division as an appropriate starting point for a family court judge [when] attempting to divide an estate.” Doe v. Doe, 370 S.C. 206, 214, 634 S.E.2d 51, 56 (Ct. App. 2006).  However, “there is certainly no recognized presumption in favor of a fifty-fifty division.” Id.  As such, the discretion remains with the family court judge to determine an appropriate division of the marital estate. 

We find it to be within the discretion of the family court judge to assign all or part of marital debt to a party as a mechanism for achieving the desired division of the marital estate.  Although such an assignment in this case occasioned a 39% to 61% split of the estate in favor of the Wife, such a determination is within the discretion of the family court.  See id. (ruling a 60% to 40% division to be equitable).   Furthermore, we note that a review of the record indicates that Husband agreed to accept all of the marital debt. 

Accordingly, we find the record supports the family court’s division of the marital estate in this case.  It is irrelevant that this Court may have weighed particular factors differently than the family court. See Green v. Green, 351 S.C. 329, 340, 569 S.E.2d 603, 604 (Ct. App. 1993).

The family court did not abuse its discretion in assigning all the marital debt to Husband.

AFFIRMED.

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


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

[2]  It appears from the transcript that Wife’s trial counsel argued to the family court that Husband was entitled to only a special equity in the Heathwood Drive residence; however, the family court did not address this argument in the final order.  Wife’s post-trial motions were not included in the record on appeal, and this Court requested copies of the motions from Wife’s appellate counsel.  There was no mention in any of the materials submitted in response to the request about the possibility of limiting Husband’s interest in the residence to a special equity; therefore, we cannot consider such a possibility on 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]  Although we have affirmed the appealed order based on our own findings from our review of the evidence, we take this opportunity to remind the family court bench that, under the South Carolina Rules of Family Court, “[a]n order or judgment pursuant to an adjudication in a domestic relations case shall set forth the specific findings of fact and conclusions of law to support the court’s decision.” Rule 26(a), SCRFC.