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2009-UP-161 - Young v. Young

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

Bob W. Young, Appellant,

v.

Carol Jennings Young,
SCDSS, Anthony
Roper, Pamela Durham,
and Phyllis M. Roper,

Of Whom:
Carol Jennings Young is, Respondent.


Appeal From Pickens County
Timothy L. Brown, Family Court Judge


Unpublished Opinion No. 2009-UP-161
Heard February 19, 2009 – Filed April 1, 2009


AFFIRMED


David A. Wilson, of Greenville, for Appellant.

R. Scott Dover, of Pickens, for Respondent.

PER CURIAM: In this domestic matter, Husband asserts the family court abused its discretion in (1) approving and adopting the settlement agreement, (2) awarding an equal allocation of marital property, and (3) awarding fractional interests in the parties' Florida property.  We affirm.

FACTS/PROCEDURAL HISTORY

Bob W. Young (Husband) and Carol Jennings Young (Wife) were married on November 9, 1974.  The parties were married for thirty years and have no children. 

Husband and Wife separated on or about May 4, 2004.  Husband filed a complaint on July 15, 2004, and an amended complaint on August 6, 2004, seeking separate support and maintenance, equitable division, attorney's fees, and other relief.  On August 31, 2004, Wife filed an answer and counterclaim seeking a divorce, equitable division, attorney's fees, and other relief.

A final hearing was held before the Honorable Timothy L. Brown on April 10, 2006.  At the call of the case, Husband made a motion to amend his pleadings to include one year of continuous separation as an alternative ground for divorce as well as a request for attorney's fees.  Counsel for Husband then placed into the record a partial agreement of the parties as to all issues with the exception of the percentages of the distribution of the marital estate, attorney's fees, and divorce.  Among the issues stipulated in the partial agreement was a waiver of alimony.  Counsel for Husband also noted that the parties agreed Husband would remain in the marital home but that the home would be placed for sale at an agreed upon price.  Thereafter, Husband's counsel stipulated as to the valuations of various personal items, bank accounts, and retirement accounts.  Husband's counsel also indicated the parties agreed Wife would share 25% interest in any earnings relative to Husband's corporation, Vortex, Inc. 

Husband's counsel further informed the court that Husband and Wife agreed their Florida property, which consists of a commercial building and billboard in Miami, FL, would not be sold but would continue to be owned jointly by the parties, and that the proceeds and liabilities would be divided subject to the percentage determined by the court.  Husband's counsel stated that the Florida property had severe maintenance issues and liabilities but that it was generating a total of $4,900.00 per month in income.  Later during the hearing, counsel for both parties reconfirmed the agreement that the Florida property would not be sold but would continue to be owned jointly by the parties.  Husband's counsel reasoned that this situation was favorable because the sale of the property may trigger an environmental issue rendering the property worthless.

Following these stipulations, the court noted that the equitable apportionment issues were not fully resolved but that it would factor in the stated stipulations to the full agreement.  However, the court stated that it would make no commitment to accept the agreement; the court further indicated that testimony must be offered as to whether the agreement was fair and as to whether it was entered into freely, knowingly, and voluntarily.  After the court's remarks, Husband's counsel stated that he was prepared to stipulate that neither party was under the influence of alcohol or drugs, and that the agreement was arrived at freely and voluntarily without any coercion.

Thereafter, testimony from Husband and Wife was taken.  Both parties assented that the agreement as stipulated by counsel was entered into freely, knowingly, and voluntarily.  Husband testified that his net worth at the time of the marriage was $800,000.00 to $1,000,000.00 and that his net worth at the time of the hearing was approximately $238,286.00.  Wife testified to her role as homemaker and her direct contributions to Husband's business, such as attending seminars and arranging social functions.  Wife also testified that she was directly involved in the Husband's real estate development in North Carolina, for which she contributed her skills as a licensed interior decorator in addition to overseeing all the day to day workings of the development. 

By final order and divorce decree dated May 23, 2006, the court granted Husband a divorce on the ground of one year of continuous separation.  In apportioning the marital estate, the court approved the agreement of the parties and divided the marital assets evenly with the exception of Husband's ownership interest in Vortex, Inc., which was divided 75/25 in favor of Husband.  As to the Florida property, the court ordered the parties to retain joint ownership of the property and to maintain a joint account for the rental proceeds.  The order further provided that Husband would assume primary responsibility for the joint account and for providing an accounting of all funds received and all expenses authorized to be paid by him in association with the maintenance and upkeep of the property.  Any funds remaining in the joint account after the payment of expenses would then be divided evenly between the parties.  The court also ordered $5,000.00 in attorney's fees to be paid from the rental income from the Florida property to each party's attorney. 

Husband timely filed a motion to alter or amend, which was granted in part as to the allocation of marital debts and several valuation errors.  The court also reduced Wife's award of attorney's fees by $1,000.00.  This appeal followed.

STANDARD OF REVIEW

In appeals from the family court, this court has the authority to find facts in accordance with its own view of the preponderance of the evidence. Ray v. Ray, 374 S.C. 79, 83, 647 S.E.2d 237, 239 (2007).  Despite this broad scope of review, the appellate court is not required to disregard the findings of the family court judge, who saw and heard the witnesses, and was in a better position to evaluate their credibility and assign comparative weight to their testimony.  Wooten v. Wooten, 364 S.C. 532, 540, 615 S.E.2d 98, 102 (2005). 

LAW/ANALYSIS

Husband first asserts the family court erred in adopting the settlement agreement.  Specifically, Husband asserts the agreement contains vague, ambiguous, and indefinite terms and is not procedurally or substantively reasonable.  We disagree.

Rule 43(k), SCRCP, provides that "[n]o agreement . . . in an action shall be binding unless reduced to the form of a consent order or written stipulation signed by counsel and entered in the record, or unless made in open court and noted upon the record." Rule 43(k), SCRCP.  To comply with the requirements of Rule 43(k), the order or written stipulation must set forth the terms of the settlement.  Galloway v. Regis Corp., 325 S.C. 541, 545, 481 S.E.2d 714, 715-16 (Ct. App. 1997).  However, such an agreement is still subject to review by the family court to determine its fairness.  Jackson v. Jackson, 279 S.C. 618, 620, 310 S.E.2d 827, 828 (Ct. App. 1983).

Agreements regarding alimony, child support, or property issues must be presented to the family court for approval.  McKinney v. McKinney, 274 S.C. 95, 97, 261 S.E.2d 526, 527 (1980) (holding that a marital agreement, even though plain and unambiguous, is nevertheless subject to the duty of the family court judge to rule upon its fairness).  As such, "[w]hen approving a settlement agreement, [the family court] must, first, determine if assent to the agreement is voluntarily given, and, second, determine if the agreement is 'within the bounds of reasonableness from both a procedural and substantive perspective.'"  Blejski v. Blejski, 325 S.C. 491, 497-98, 480 S.E.2d 462, 466 (Ct. App. 1997) (quoting Burnett v. Burnett, 290 S.C. 28, 347 S.E.2d 908 (Ct. App. 1986)). 

In the instant case, we find the family court's approval of the agreement was appropriate.   At the commencement of the hearing, counsel entered into the record a partial agreement reached between the parties.  The partial agreement provided for, among other things, the sale of the marital home and joint ownership of their Florida property.  Specifically, with regard to the marital residence, Husband's counsel stipulated that Husband would have "four months to shop the house sale" and "all the terms and price of sale will be subject to the approval of both."  As to the Florida property, Husband's counsel stated that the parties agreed the property would not be sold but would "continue to be owned by the parties."  Wife's counsel further confirmed that "[w]e did agree to that, that it would remain jointly held by the parties in the percentages determined by Your Honor for [the] future, forever, and that the profits or any profits received from there will be divided in the same manner."  These terms of the partial agreement reached by the parties were entered into the court's record and acknowledged in open court prior to the parties' testimony. 

After the partial agreement was placed into the record, both parties were questioned as to the fairness of the agreement and whether it was entered into freely and voluntarily.  Husband and Wife testified that they freely and voluntarily entered into the agreement.  Husband further testified that the agreement was fair and reasonable and that it was his desire that the agreement, subject to percentage, be approved by the court.  While Husband asserts that he never assented to the terms of the agreement concerning the marital residence and the Florida property, the record reveals that the disputed terms are the precise terms stipulated by counsel that Husband testified were fair and reasonable.   Accordingly, based on the evidence in the record, we find the agreement was freely and voluntarily entered into by Husband and Wife.[1] 

However, our analysis does not conclude here as the agreement must be approved by the family court before it can be adopted and incorporated into the decree.  See Moseley v. Mosier, 279 S.C. 348, 353, 306 S.E.2d 624, 627 (1983) ("In all decrees entered after this decision, the parties may contract concerning their property settlement and alimony, but the submitted agreement must be approved by the family court."); Drawdy v. Drawdy, 275 S.C. 76, 77, 268 S.E.2d 30, 30-31 (1980) (stating approval of an agreement requires consideration beyond whether the agreement was validly executed).  This process involves two distinct questions: whether the parties freely and voluntarily entered into the agreement; and whether the agreement is reasonable.  Blejski, 325 S.C. at 497-98, 480 S.E.2d at 466.  In the instant case, the court questioned both parties regarding their agreement.  Testimony from Husband and Wife revealed no indication that either party was under any duress, coercion, or force at the time they entered into the agreement.  The court further found that the parties negotiated their agreement with the benefit and advice of independent and experienced counsel.  As to reasonableness, the court took into consideration the parties' economic circumstances, their contributions, the duration of the marriage, and the absence of marital fault in determining that the substance of the agreement was fair.  Our review of the record supports the family court's findings.  

Therefore, based on the evidence in the record, we find no error in the family court's decision to approve and enforce the agreement after determining that the agreement was entered into freely and voluntarily and that the agreement was fair and reasonable.  Moreover, Husband testified that he agreed to be bound by the agreement; thus, he cannot now complain that the agreement is unreasonable.[2]  See Harrison v. Bevilacqua, 354 S.C. 129, 139-40, 580 S.E.2d 109, 114-15 (2003) (stating petitioner cannot now complain the trial court erred when it took his own suggestion); Doe v. Roe, 379 S.C. 291, 297, 665 S.E.2d 182, 185 (Ct. App. 2008) (stating that appellant cannot, on appeal, complain of an issue to which he consented). 

Husband next asserts the family court erred in apportioning the marital estate equally.  We disagree.

The apportionment of marital property is within the family court's sound discretion and will not be disturbed on appeal absent an abuse of that discretion.  In making an apportionment of a marital estate, the court must consider and give weight in such proportion as it finds appropriate to fifteen factors enumerated in Section 20-7-472 of the South Carolina Code.  S.C. Code Ann. § 20-7-472 (Supp. 2007).[3]  Upon review of the family court's equitable apportionment, this court looks to the overall fairness of the apportionment and if the result is equitable, taken as a whole, we may accept that apportionment even if this court might have weighed specific factors differently than the family court.  Simpson v. Simpson, 377 S.C. 527, 533, 660 S.E.2d 278, 282 (Ct. App. 2008).

The philosophy behind equitable apportionment is articulated in Walker v. Walker, 295 S.C. 286, 368 S.E.2d 89 (Ct. App. 1988), as based on a recognition that marriage is, among other things, an economic partnership. Id. at 288, 368 S.E.2d at 90.  As such, upon dissolution of the marriage, property accumulated during the marriage should be divided and distributed in a manner reflective of each spouse's contribution to its acquisition, regardless of which spouse owns legal title.  Id.   The family court has wide discretion in determining the contributions made by each spouse to the marital property.  Ball v. Ball, 314 S.C. 445, 448, 445 S.E.2d 449, 451 (1994).

Here, the record reflects the court properly considered the appropriate factors of § 20-7-472 in awarding each party a one-half interest in any marital property owned by the parties.   Specifically, the court considered the duration of the marriage, the parties' ages, the parties' incomes, the valuations of the properties, and the tax consequences.  Additionally, as to the contributions of each party, the court determined that, when considered as a whole, the contributions of each party were equal in value.  In so finding, the court noted that Husband provided little testimony as to his direct contributions but that Wife provided abundant testimony as to both her direct contributions associated with Husband's business and her indirect contributions as a homemaker.   After weighing these factors and in light of the agreement between the parties, the court determined that the marital estate should be apportioned fifty percent to each spouse.  While there is no presumption in favor of a 50/50 division in marital property, we note the court's finding is consistent with this court's routine approval of an equal division as an appropriate starting point in marriages of long duration.  See Doe v. Doe, 370 S.C. 206, 214, 634 S.E.2d 51, 56 (Ct. App. 2006) (stating equal division is an appropriate starting point in dividing an estate of a long-term marriage).  Given the statutory factors and in view of the duration of the marriage, the value of the marital property, and the incomes of the parties, we find the court's distribution is fair and equitable.  Accordingly, the disposition of the marital assets on an equal basis was not an abuse of discretion.

Lastly, Husband asserts the family court erred in awarding a fractional ownership in the Florida property.  We disagree. 

The objective in dividing marital property is to sever all joint interests in the property as completely as possible.  Johnson v. Johnson, 285 S.C. 308, 311, 329 S.E.2d 443, 445 (Ct. App. 1985).  Thus, absent compelling reasons, joint ownership should be avoided.  Id.

In the instant case, the parties presented compelling reasons for maintaining joint ownership.  In particular, the record indicates that the property generates a substantial income and that a court ordered sale of the property may trigger existing environmental issues rendering the property worthless.  Thus, although the court should avoid awarding fractional interests in marital property, we find compelling reasons exist for retaining the parties' joint ownership in this property.  Furthermore, the parties specifically provided for joint ownership in their partial agreement which was properly approved and adopted by the family court.  Moreover, testimony from Husband after the agreement was placed on the record further confirmed his desire to retain joint ownership when, in response to the question concerning whether he and Wife "agreed to maintain jointly [the Florida] property," Husband replied, "You're right."  Accordingly, the court's award of joint ownership in the Florida property was not an abuse of discretion.[4]  

CONCLUSION

For the foregoing reasons, the order of the family court is

AFFIRMED.

WILLIAMS, PIEPER, and GEATHERS, JJ., concur. 


[1]Additionally, as to the Florida property, Husband asserts he was not questioned regarding a modification to the parties' agreement.  The alleged modification consists of the following statement by Husband's counsel: "We agree that the property is not to be sold but would continue to be owned by the parties as . . . joint tenants in common of whatever percentage Your Honor assigns to it because we don't want to trigger an environmental problem because it may not be worth anything."  Because this statement by counsel merely reiterated the terms that counsel previously noted on the record at the beginning of the hearing and to which Husband voiced his assent, we find this argument meritless. 

[2] In view of the assent to the agreement by Husband's counsel in open court, we note the long standing rule that a client is bound by the actions of his attorney.  See Shelton v. Bressant, 312 S.C. 183, 184, 439 S.E.2d 833, 834 (1993) ("Acts of an attorney are directly attributable to and binding upon a client."); Smith v. Pearson, 210 S.C. 524, 530, 43 S.E.2d 479, 481 (1947) (finding appellants bound by statement made by counsel at the outset of hearing); Widdicombe v. Tucker-Cales, 366 S.C. 75, 90 n.5, 620 S.E.2d 333, 341 n.5 (Ct. App. 2005) ("[A] party is generally bound by stipulations made by their counsel.").  "The parties to a suit are bound by admissions, made by their attorneys of record, in open court, or elsewhere, touching matters looking to the progress of the trial." Hall v. Benefit Ass'n of Ry. Employees, 164 S.C. 80, 83, 161 S.E. 867, 868 (1932).  As such, Husband's assertion that the agreement stipulated by counsel was not settled according to his terms does not entitle him to a new trial de novo on these issues, especially where, as here, Husband assented to the terms at trial.  See Shelton, 312 S.C. at 185, 439 S.E.2d at 834 ("When a litigant voluntarily accepts an offer of settlement, either directly or indirectly through the duly authorized actions of his attorney, the integrity of the settlement cannot be attacked on the basis of inadequate representation by the litigant's attorney."). 

[3] Pursuant to Act No. 361, 2008 S.C. Acts 3623, Section 20-7-472 has been transferred to Section 20-3-620.  See Act No. 361, 2008 S.C. Acts 3623 (stating "the transfer and reorganization of the code provisions in this act are technical . . . and are not intended to be substantive").  Because Article 6 has not yet been bound, all citations to the statute refer to Chapter 7.

[4] Despite Husband's contention that the order fails to account for his costs associated with the upkeep of the property, we find the family court's order clearly enunciates that the costs and expenses of maintenance and upkeep of the Florida property are to be deducted from the net proceeds; therefore, both parties share equally in these costs.