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2009-UP-190 - Roberts v. Roberts

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

Arthur Wilson Roberts, III, Appellant,

v.

Clarice Gibbons Roberts, Respondent.


Appeal From York County
Aphrodite K. Konduros, Family Court Judge


Unpublished Opinion No. 2009-UP-190
Heard March 4, 2009 – Filed May 5, 2009


AFFIRMED IN PART, REVERSED IN PART, AND REMANDED


Thomas F. McDow and Erin U. Fitzpatrick, both of Rock Hill, for Appellant.

Harry T. Heizer, Jr., of Irmo, Sandra D. Hebert, of Lexington, for Respondent.

PER CURIAM: In this appeal, Arthur Roberts, III, (Husband) challenges the final decree of divorce on several grounds, arguing that the family court erroneously (1) denied Husband's motion for a continuance; (2) excluded portions of Husband's deposition; (3) allowed Clarice Roberts (Wife) to introduce evidence of her attorney's fees after she failed to respond to Husband's discovery requests; (4) awarded permanent periodic alimony to Wife; (5) found that Husband's home was transmuted into marital property; and (6) divided the marital estate on a 50/50 basis.  We affirm in part, reverse in part, and remand.

FACTUAL BACKGROUND

Husband and Wife were married on April 4, 1993, and had no children during their eleven-year marriage.  Wife was 60 years old and Husband was 57 years old when the family court issued its final decree of divorce on July 26, 2006.  Both parties were married prior to their marriage.  Wife had two children from a previous marriage, whom she and Husband supported during their marriage.

In 1992, shortly before the parties' marriage, Husband purchased his siblings' interest in their late parents' home.  The home was titled solely in Husband's name and Husband was responsible for the mortgage at all times, which he paid off during the course of the parties' marriage from his separate checking account.  Wife made indirect contributions to the home by paying household expenses, cleaning, helping to remodel and update the home, taking out the trash, and doing yard work. 

During their marriage, Husband and Wife maintained separate banking accounts into which their respective paychecks were deposited.  Husband worked for Bi-Lo for approximately twenty-nine years and was an assistant manager for Bi-Lo during the majority of the parties' marriage.  He left Bi-Lo and began working for his brother in Florida approximately a year after the parties separated.  Wife has been working at the South Carolina Department of Transportation for approximately eighteen years, but she also currently works part-time for the South Carolina Credit Union.  Before Husband stopped working at Bi-Lo in August 2004, his gross monthly income was $4,207.12 and Wife's gross monthly income was approximately $3,200.[1] 

At the time of the final hearing, Wife was living at her sister's house because she claimed she could not afford to buy a house and pay her basic living expenses.  Wife reasoned that while she was earning more than she earned during the marriage, due to the loss of Husband's income, Wife could not support herself in the same manner that she was accustomed to during their marriage. 

PROCEDURAL HISTORY

On May 4, 2004, Husband instituted this divorce action, seeking separate maintenance and support, confirmation of property division, discovery, reimbursement alimony, and attorney's fees.  Wife responded and counterclaimed, seeking a dismissal of the complaint, separate maintenance and support, equitable distribution of the property, discovery, alimony, and attorney's fees.  The family court held a final hearing on March 30, 2006.  

Husband was not present at the final hearing.  Husband's counsel moved for a continuance citing Husband's "severe memory problems," but counsel acknowledged that there was no excuse for Husband's absence as counsel had notified Husband of the date of the hearing.  The family court denied counsel's motion, but it gave Husband's counsel an opportunity to notify Husband of the court's decision to proceed with the hearing in Husband's absence.  

Wife was the sole witness at the final hearing.  Before Wife's testimony, Husband's counsel objected to any evidence on Wife's attorney's fees because Wife failed to respond to his discovery requests on the grounds of attorney-client privilege.  The family court denied this motion.  Subsequently, Husband's counsel attempted to introduce excerpts from Husband's deposition in response to Wife's testimony, which the family court did not allow.  Husband's counsel then moved to alternatively strike any evidence that Wife testified to in reliance upon Husband's deposition, but the family court denied this motion and proceeded with the hearing.  

Thereafter, on July 26, 2006, the family court issued a final decree of divorce and awarded the parties a divorce based on the statutory ground of one year's continuous separation.  Finding the home, the 401(k), and the retirement accounts were marital property, the court divided the marital estate on a 50/50 basis.  The family court awarded the home to Husband but allotted $97,264 from Husband's 401(k) account to Wife to effectuate an equal division of marital property.  Wife retained exclusive ownership of her 401(k) and state retirement accounts and was awarded $353 per month in permanent periodic alimony.  The family court also awarded attorney's fees to Wife in the amount of $12,568.02. 

ISSUES ON APPEAL

Husband presents this Court with six grounds of error on appeal.

(1)  The family court erred in denying Husband's motion for a continuance because it was presented with evidence that Husband failed to attend the final hearing on account of severe memory problems.

(2)  The family court erred in excluding portions of Husband's deposition, which would demonstrate Husband failed to attend the hearing due to a mental infirmity, when the court had permitted Wife to testify from the same deposition.

(3)  The family court erred in permitting Wife to offer evidence on her attorney's fees as she previously asserted in response to discovery requests that the fee evidence was attorney-client protected.

(4)  The family court erred in awarding Wife permanent periodic alimony as none of the factors set forth in S.C. Code Ann. section 20-3-130(C) (Supp. 2008) justify an award of alimony to Wife.

(5)  The family court erred in transmuting Husband's home into marital property because Wife failed to sustain her initial burden of establishing that the parties intended the home be transmuted into marital property. 

(6)  The family court erred in awarding Wife fifty percent of the marital estate because Husband made greater financial contributions during the marriage and each party maintained separate financial accounts.

STANDARD OF REVIEW

In appeals from the family court, this Court may find facts in accordance with its own view of the preponderance of the evidence.  Nasser-Moghaddassi v. Moghaddassi, 364 S.C. 182, 189, 612 S.E.2d 707, 711 (Ct. App. 2005).  However, this broad scope of review does not require this Court to disregard the findings of the family court.  Id. at 189-90, 612 S.E.2d at 711.  Nor can we ignore the fact that the family court, who saw and heard the witnesses, was in a better position to evaluate their credibility and assign comparative weight to their testimony.  Cherry v. Thomasson, 276 S.C. 524, 525, 280 S.E.2d 541, 541 (1981).  Moreover, our broad scope of review does not relieve the appellant of the burden of proving to this Court that the family court committed error.  Id.

LAW/ANALYSIS

I.  Motion for Continuance

Husband first contends the family court erred in denying his counsel's motion for continuance due to Husband's absence at the hearing.  We disagree.

Rule 40(i)(1), SCRCP, states: "As actions are called, counsel may request that the action be continued. If good and sufficient cause for continuance is shown, the continuance may be granted by the court."  As stated in the Rules, a motion for continuance is discretionary with the family court, and we will not disturb its ruling on appeal absent an abuse of that discretion.  Bridwell v. Bridwell, 279 S.C. 111, 112, 302 S.E.2d 856, 858 (1983).

In requesting a continuance, Husband's counsel stated that Husband had forgotten about the hearing and his absence was due to "severe memory problems which [] manifested themselves at several points in this case."  Counsel explained that he had problems working with Husband and that Husband failed to bring several subpoenaed documents to his deposition on the grounds that he just "forgot" them.  Husband's counsel also stated on the record that Husband was aware of the hearing as counsel had talked with Husband about the upcoming hearing several times during the preceding week.  In opposing Husband's motion, Wife's counsel argued Husband's actions were typical of what Wife encountered throughout the case.  Wife's counsel stated that Husband wanted "everyone to believe that he has some great mental, physical problem that is causing him to do these things. [But] [t]hat is not the case, and I think if he were here that would be pretty evident."  

While Husband now argues that portions of his deposition testimony substantiate his claim that he suffered from a mental infirmity, Husband's counsel did not seek to introduce Husband's deposition to establish the mental infirmity issue when counsel argued for a continuance.  Further, the only other testimony at the hearing regarding Husband's health was from Wife who testified that she did not believe Husband was in poor health.  While her testimony was elicited after the court's denial of Husband's motion for a continuance, Husband's counsel did not seek to clarify Wife's testimony or question her on whether Husband suffered from any memory issues during their marriage. 

Husband additionally argues that his memory issues are evidenced by his failure to remember important dates and subpoenaed documents at his deposition.  However, Husband's presence at his deposition demonstrates that he was capable of remembering other key events involving the divorce litigation, and while Husband failed to bring the requested records, his excuse during the deposition was that "[he] didn't really read the subpoena. . . . [He] just saw it was a subpoena and [he] read down to, you know, the date."  It is Husband's burden to convince this Court that he demonstrated good and sufficient cause for a continuance before the family court.  See Shirley v. Shirley, 342 S.C. 324, 329, 536 S.E.2d 427, 429 (Ct. App. 2000) (stating that this Court's broad scope of review does not relieve the appellant of his burden to demonstrate that the family court's findings were in error).  Because Husband failed to sustain this burden, we find the family court properly denied Husband's motion for a continuance.  

II.  Evidentiary Issues

Husband asserts that the family court committed two evidentiary errors, the first relating to the exclusion of Husband's deposition testimony and the second concerning the admission of Wife's attorney's fees information.  We disagree on both claims of error. 

The admission of evidence is within the sound discretion of the family court.  See Gamble v. Int'l Paper Realty Corp. of S.C., 323 S.C. 367, 373, 474 S.E.2d 438, 441 (1996). For this Court to reverse a case based on the improper admission or erroneous exclusion of evidence, the appellant must demonstrate error and prejudice.  Osterneck v. Osterneck, 374 S.C. 573, 579, 649 S.E.2d 127, 131 (Ct. App. 2007). 

A.  Husband's Deposition Testimony

Husband first argues that the family court's exclusion of certain portions of Husband's deposition was prejudicial to Husband, particularly when Wife was permitted to reference the deposition and the excluded portions were necessary to rebut Wife's testimony.  We disagree.

At the final hearing, Husband's counsel attempted to read portions of Husband's deposition in response to Wife's statement that she did not recall Husband's prior testimony regarding his income.  In response, the family court told Husband's counsel that it would not permit Husband to bootstrap his deposition testimony to Wife's testimony when Wife already stated she did not recall what Husband was currently earning.    

Husband now attempts to argue that this portion of his deposition should have been read into evidence because the Rules of Civil Procedure permit the introduction of a deposition when a witness is infirm or ill or when exceptional circumstances exist such that the interests of justice would be served by introducing the deposition.  Husband cites two subparts of Rule 32, SCRCP, in support of his argument.  Rule 32(a)(3), SCRCP, states:

The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds: . . .  (C) that the witness is unable to attend or testify because of age, illness, infirmity, or imprisonment; or . . . (E) upon application and notice, that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used.

As stated above, Husband has failed to sufficiently establish that he suffered from a mental infirmity or medical condition to warrant the admission of the deposition based on Rule 32(a)(3)(C).  Moreover, when Husband's counsel argued for a continuance based on Husband's memory issues, he did not attempt to introduce the deposition at that time to support his motion. 

Husband's argument that the family court should have allowed the deposition based on exceptional circumstances is also unpersuasive.  First, to admit a deposition under Rule 32(a)(3)(E), a party must give notice to the family court that exceptional circumstances warrant the deposition being read in open court.  While Husband's counsel may not have known prior to the hearing that Husband would not attend, a plain requirement for application of this section is prior notice.  At no time before or even during the hearing did Husband's counsel argue for introduction of the deposition on this ground.  Second, Husband's absence at the hearing does not rise to the level of an "exceptional circumstance" to justify the deposition's admission, especially when Husband concedes that he had notice of the hearing.  Furthermore, both of the instances when Husband's counsel attempted to introduce portions of the deposition were in response to Wife's recollection, or lack thereof, about Husband's previous statements.  Husband cannot attempt to introduce testimony favorable to Husband by way of his deposition when Husband could have testified to the same had he been present at the hearing.  As such, the family court properly exercised its discretion in refusing to admit Husband's deposition. 

B.   Admission of Attorney's Fees Affidavit

Husband next claims that the family court erred in considering Wife's attorney's fees affidavit when Wife previously asserted that her fee evidence was attorney-client protected.[2]  We disagree.

Husband's counsel objected to the introduction of Wife's attorney's fee affidavit before and during the hearing.  The family court overruled his objections, finding Husband never submitted a motion to withhold the issue of attorney's fees based on Wife's refusal to respond and noting that because Wife requested attorney's fees in her pleadings, it was proper to receive the affidavit into evidence. 

The family court's rationale for accepting Wife's affidavit is well founded.  If Husband felt that Wife's refusal to respond to the discovery requests on this issue was so egregious as to warrant exclusion based on estoppel, Husband should have attempted to compel production of this information prior to the hearing.  See Rule 37(a), SCRCP ("[I]f a party, in response to a request for inspection submitted under Rule 34[] fails to respond . . . or fails to permit inspection as requested, the discovering party may move for an order compelling an answer . . . or an order compelling inspection in accordance with the request.").  Further, Wife's response to Husband's request to produce states, "[Wife] objects to this request under the attorney/client privilege, however, reserves the right to produce it at a later date or at the trial of this matter." (emphasis added).  Wife explicitly reserved the right to produce evidence on her attorney's fees at the final hearing, and as stated above, Husband never moved for any additional relief prior to the hearing.  Therefore, the family court's acceptance of Wife's attorney's fee affidavit at the final hearing was proper.

III.  Permanent Periodic Alimony

Husband contends the family court declined to consider the factors set forth in S.C. Code Ann. section 20-3-130(C) (Supp. 2008), which resulted in an improper award of permanent periodic alimony to Wife.  We agree.

The decision to grant alimony and the amount granted are discretionary with the family court.  Williams v. Williams, 297 S.C. 208, 210, 375 S.E.2d 349, 350 (Ct. App. 1998).  Alimony is a substitute for support which is normally incident to the marital relationship, and all facts and circumstances disclosed by the record should be considered.  Lide v. Lide, 277 S.C. 155, 157, 283 S.E.2d 832, 833 (1981). 

Section 20-3-130(c) sets forth thirteen factors which "must be weighed" when determining alimony.  Epperly v. Epperly, 312 S.C. 411, 415, 440 S.E.2d 884, 886 (1994) (emphasis in original). These factors include: (1) the duration of the marriage and the ages of the parties at the time of the marriage and separation; (2) the physical and emotional condition of each spouse; (3) the educational background of each spouse and the need for additional education; (4) the employment history and earning potential of each spouse; (5) the standard of living established during the marriage; (6) the current and reasonably anticipated income of each spouse; (8) the marital and nonmarital properties of the parties; (9) the custody of any children; (10) marital misconduct or fault; (11) the tax consequences of the award; (12) the existence of support obligations to a former spouse; and (13) other factors the court considers relevant.  § 20-3-130(c); see Patel v. Patel, 347 S.C. 281, 290, 555 S.E.2d 386, 390 (2001).  No one factor should be considered dispositive.  Lide, 277 S.C. at 157, 283 S.E.2d at 833. 

Family Court Rule 26(a) requires "[a]n order of judgment pursuant to an adjudication in a domestic relations case [to] set forth the specific findings of fact and conclusions of law to support the court's decision."  Rule 26(a), SCRFC.  When an order is issued in violation of Rule 26(a), this Court may remand the matter to the family court or, when the record is sufficient, make its own findings of fact in accordance with the preponderance of the evidence.  Holcombe v. Hardee, 304 S.C. 522, 524, 405 S.E.2d 821, 822 (1991) (internal citations omitted).   

With regard to alimony, the family court stated in its order, "[Wife] shall be awarded the sum of Three Hundred Fifty-Three and no/100ths ($353.00) Dollars per month in permanent, periodic alimony, terminable only upon the death or remarriage of [Husband]."  The family court failed to reference any circumstances between the parties that would warrant an award of permanent periodic alimony or discuss any of the elements from section 20-3-130(C) in making its award.  Therefore, we reverse the alimony award and remand the matter for the determination of Wife's entitlement to alimony based on a consideration of all relevant statutory factors.  See Fuller v. Fuller, 370 S.C. 538, 550-51, 636 S.E.2d 636, 643 (Ct. App. 2006) (remanding determination of alimony based on failure of family court to set forth specific findings to support award).

IV.  Transmutation

Husband argues the family court erred in classifying the home in which the parties lived during the marriage as marital property.  We agree.

Identification of marital property is controlled by the provisions of the Equitable Apportionment of Marital Property Act (the Act).  Johnson v. Johnson, 296 S.C. 289, 294, 372 S.E.2d 107, 110 (Ct. App. 1988).  The Act defines marital property as all real and personal property acquired by the parties during the marriage which is owned as of the date of filing or commencement of marital litigation, regardless of how legal title is held.  S.C. Code Ann. § 20-3-630(A) (Supp. 2008).[3]  Under the Act, property acquired by either party before the marriage is nonmarital property.  S.C. Code Ann. § 20-3-630(2) (Supp. 2008); see also Sauls v. Sauls, 287 S.C. 297, 300, 337 S.E.2d 893, 895 (Ct. App. 1985).   

The spouse claiming an equitable interest in property upon dissolution of the marriage has the burden of proving the property is part of the marital estate.  Johnson, 296 S.C. at 294, 372 S.E.2d at 110.  If a spouse carries this burden, a prima facie case is established that the property is marital property.  Id.  If the opposing spouse then wishes to claim that the property is not part of the marital estate, that spouse has the burden of presenting evidence to establish its nonmarital character.  Miller v. Miller, 293 S.C. 69, 71, 358 S.E.2d 710, 711 (1987).  If the opposing spouse can show that the property was acquired before the marriage or falls within a statutory exception, this rebuts the prima facie case for its inclusion in the marital estate.  Johnson, 296 S.C. at 295, 372 S.E.2d at 110.  

Even if property is nonmarital, it may be transmuted into marital property during the marriage.  Id.  Transmutation occurs if the property is utilized in support of the marriage, becomes so co-mingled as to be untraceable, or is utilized in such a manner as to evidence an intent to make it marital property.  Canady v. Canady, 296 S.C. 521, 523-24, 374 S.E.2d 502, 503-04 (Ct. App. 1988).  Although one spouse acquires legal title to property, the discharge of indebtedness by both the husband and wife may transmute the property into marital property.  Wyatt v. Wyatt, 293 S.C. 495, 497, 361 S.E.2d 777, 779 (Ct. App. 1987).  Transmutation is a matter of intent to be gleaned from the facts of each case, and the spouse claiming transmutation must show that, during the marriage, the parties themselves regarded the property as the common property of the marriage.  Johnson, 296 S.C. at 295, 372 S.E.2d at 110-11.

Evidence of intent to transmute nonmarital property may include placing the property in joint names, transferring the property to the other spouse as a gift, using the property exclusively for marital purposes, commingling the property with marital property, using marital funds to build equity in the property, or exchanging the property for marital property.  Id. at 295, 372 S.E.2d at 111.  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.  Greene v. Greene,
351 S.C. 329, 338, 569 S.E.2d 393, 398 (Ct. App. 2002).

Shortly before Husband and Wife married, Husband purchased the remaining interest in his late parents' home from his siblings.  The home was at all times titled in Husband's name, Husband was solely responsible for discharging the debt on the home, and the mortgage payments to discharge the debt were drawn from Husband's separate checking account.  Wife testified that her presence in the home during their marriage and her contributions to the upkeep and maintenance of the home entitled her to share in the home's equity.  However, the record does not show that her contributions were significant enough to transmute the property, and the family court fails to set forth any findings in its order to clarify this issue.  While Wife made contributions to the home by paying household expenses, cleaning, helping to remodel and update the home, taking out the trash, and doing yard work, Wife failed to produce evidence that an appreciable amount of marital funds were expended on these improvements.  See Murray v. Murray, 312 S.C. 154, 158, 439 S.E.2d 312, 315 (Ct. App. 1994) (in denying the wife's claim for transmutation, this Court found she failed to present evidence that any appreciable amount of marital funds was expended on improvements to the husband's home and rental properties as the wife's efforts were largely routine duties such as cleaning and painting).  

Further, Wife's own statements do not indicate that she believed the home was a shared asset of the parties.  Wife stated three separate times at the final hearing that Husband's only contribution in support of her and her daughters was that "[Husband] gave [her] a place to live."  Without further evidence of a shared intent to transform the home into a marital asset, Wife's and her daughters' presence in the home during the marriage is not sufficient to establish transmutation.  Johnson, 296 S.C. at 295-96, 372 S.E.2d at 111 ("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.").  As such, the home was not transmuted into marital property; thus, its inclusion in the marital estate was error. 

Despite our finding that the home is Husband's nonmarital property, if Wife can present evidence on remand that she contributed to the home's appreciation during their marriage, she may be entitled to share in any appreciation of the home resulting from her contributions.  See Murray, 312 S.C. at 161-62, 439 S.E.2d at 317 (noting that while marital home was not transmuted, family court properly awarded special equity in the home to the wife based on her direct and indirect contributions); Webber v. Webber, 285 S.C. 425, 428, 330 S.E.2d 79, 81 (Ct. App. 1985) (citing Anderson v. Anderson, 282 S.C. 163, 164, 318 S.E.2d 566, 567 (1984) ("A spouse has an equitable interest in improvements to property to which he or she contributed, even if the property is nonmarital."). 

Regarding the value and nature of Wife's contributions to the home, no specific testimony exists on how her services and contributions affected the value of the home.  See Murray, 312 S.C. at 158, 439 S.E.2d at 315.  Wife testified that she cleaned, mopped, washed windows, took the garbage out, mowed the lawn, and assisted in remodeling and upgrading the house.  However, Wife had no concrete figures on the appreciation of the home as a result of her efforts.  Because the record is devoid of any evidence on the initial value of the home, its appreciation during the marriage, or the fair market value of the home on the date of divorce, we remand with instructions for additional findings on these factors before determining whether Wife is entitled to an equitable interest in the home.  See Webber, 285 S.C. at 428, 330 S.E.2d at 81 (finding home was nonmarital but remanding issue of whether the wife had an equitable interest in improvements to home based on the extent of her contribution).  Consequently, the apportionment of the marital estate should be remanded and redetermined consistent with this portion of the opinion.

V.  Division of Marital Estate

Husband last argues that the family court erred in awarding Wife half of the marital estate because his contributions were greater than those of Wife.  We disagree.

The apportionment of marital property is within the discretion of the family court and will not be disturbed on appeal absent an abuse of discretion.  See Morris v. Morris, 295 S.C. 37, 39, 367 S.E.2d 24, 25 (1988). South Carolina Code Ann. § 20-3-620(B) (Supp. 2008) provides that the family court must consider fifteen factors in apportioning the marital estate and give each factor its proper weight.[4]  On review, this Court looks to the fairness of the overall apportionment, and if the end result is equitable, the fact that this Court might have weighed specific factors differently than the family court is irrelevant.  Johnson, 296 S.C. at 300, 372 S.E.2d at 113; Doe v. Doe, 324 S.C. 492, 502-03, 478 S.E.2d 854, 859 (Ct. App. 1996) (stating that the reviewing court will affirm the family court's apportionment of marital property if it can be determined that the court addressed the relevant statutory factors with sufficiency for the reviewing court to conclude the family court was cognizant of the statutory factors).

In this case, the overall distribution of the marital estate was equitable.  While the family court did not make in-depth findings, the order stated that the 50/50 split was based on the duration of the marriage and the direct and indirect contributions of each party. While not all relevant factors appear to have been considered, we find based on our view of the evidence that the apportionment was fair as the parties were married for eleven years, neither party had minor children to financially support on the date of divorce, and neither was at fault in causing the dissolution of the marriage.  See Perry v. Perry, 301 S.C. 147, 152, 390 S.E.2d 480, 483 (Ct. App. 1990) (holding that although the family court failed to make appropriate findings regarding the equitable apportionment factors, the property division was fair and equitable).  While Wife's testimony indicates Husband made more direct contributions to the acquisition of assets in the marital estate, there is also testimony that shows that Wife made indirect, quality contributions to the preservation of the marital estate.  Additionally, while Husband may not have been employed on the date of the final hearing, the record indicates that both parties' earning potentials were relatively commensurate.  Based on these considerations, we find the 50/50 division of the marital estate was fair and reasonable.  

conclusion

Based on the foregoing, we affirm the family court's denial of Husband's motion for a continuance and its ruling on the two evidentiary issues.  We reverse the family court on the transmutation issue but remand for additional findings on whether Wife is entitled to a special equity interest in the home.  We also reverse and remand the issue of alimony for further findings based on section 20-3-130(C).  Last, we affirm the 50/50 division of the marital estate. 

Accordingly, the family court's order is

AFFIRMED IN PART, REVERSED IN PART, and REMANDED.

THOMAS, GEATHERS, JJ., and CURETON, A.J., concur.


[1] Husband's financial declaration was submitted on June 22, 2004, approximately two months before his employment ended with Bi-Lo.  Wife did not submit a financial declaration until March 29, 2006, the day before the final hearing.  Wife omitted her $300 monthly salary with the South Carolina Credit Union in her declaration, which she acknowledged at the final hearing.   

[2] Husband contests the award of attorney's fees based only on his claim that the family court should not have considered her attorney's fee affidavit as the basis for the award.  Nowhere does Husband argue that the family court erred in determining whether to award fees pursuant to E.D.M. v. T.A.M., 307 S.C. 471, 415 S.E.2d 812 (1992), or in determining the amount of attorney's fees pursuant to Glasscock v. Glasscock, 304 S.C. 158, 403 S.E.2d 313 (1991).  See Griffith v. Griffith, 332 S.C. 630, 645, 506 S.E.2d 526, 534 (Ct. App. 1998) (finding the family court erred in awarding attorney's fees when it failed to set forth specific findings of fact on the record about each of the required factors from Glasscock).  Because Husband failed to appeal Wife's entitlement to an award of attorney's fees or the amount of attorney's fees based on insufficient findings of fact, the award of attorney's fees is the law of the case.  See In re Morrison, 321 S.C. 370 n.2, 468 S.E.2d 651 n.2 (1996) (an unappealed ruling becomes the law of the case and precludes further consideration of the issue on appeal); Griffith, 332 S.C. at 646, 506 S.E.2d at 534 (finding whether the wife was entitled to attorney's fees was not appealed and therefore was law of the case).

[3] Section 20-3-630 was formerly section 20-7-473.

[4] Section 20-3-620 was formerly section 20-7-472.