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2010-UP-028 - Sandra Jo Martin v. William Young Martin

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

Sandra Jo Martin, Respondent,

v.

William Young Martin, Appellant.


Appeal From Greenville County
R. Kinard Johnson, Jr., Family Court Judge


Unpublished Opinion No. 2010-UP-028
Heard December 10, 2009 – Filed January 25, 2010


AFFIRMED


David Alan Wilson, of Greenville, for Appellant. 

James Sarratt and Travis Verne Olmert, both of Greenville, for Respondent.

PER CURIAM: This appeal arises after the family court granted Sandra Jo Martin (Wife) a divorce from William Young Martin (Husband) on grounds of one year's continuous separation.  Husband appeals and argues the family court erred in (1) granting a divorce on the grounds of one year's continuous separation to Wife but not to Husband; (2) failing to include certain assets in its equitable apportionment of marital property; (3) failing to consider all fifteen statutory factors when dividing marital property; (4) awarding Wife 81% of the marital property; (5) awarding each party one-half of the other party's retirement without considering the tax consequences of such an award; and (6) awarding Wife attorney's fees and costs.  We affirm.

1.  We decline to rule on whether the family court erred in (1) granting Wife but not Husband a divorce on grounds of one year's continuous separation; (2) failing to include certain assets in its equitable apportionment of marital property; (3) failing to consider all fifteen statutory factors when dividing marital property; (4) awarding Wife 81% of the marital property; and (5) awarding each party one-half of the other party's retirement without considering the tax consequences of such an award.  We find these issues are not preserved for our review.  King v. King, 384 S.C. 134, 142, 681 S.E.2d 609, 614 (Ct. App. 2009) (requiring an issue be raised to and ruled upon by the trial court in order to be preserved for appellate review); see also In re Timmerman, 331 S.C. 455, 460, 502 S.E.2d 920, 922 (Ct. App. 1998) ("When a party receives an order that grants certain relief not previously contemplated or presented to the trial court, the aggrieved party must move, pursuant to Rule 59(e), SCRCP, to alter or amend the judgment in order to preserve the issue for appeal.").

2.  We find the family court's classification of Wife's BMW as non-marital property incorrect because it was personal property acquired during the marriage.  See S.C. Code Ann § 20-3-630(A) (Supp. 2008) (defining "marital property" as real and personal property acquired by the parties during the marriage).  However, we find the family court did not err by using its discretion to award Wife the BMW.  See Simpson v. Simpson, 377 S.C. 527, 533, 660 S.E.2d 278, 282 (2008) ("The division of marital property is within the sound discretion of the family court, and on appeal, it will not be disturbed absent an abuse of discretion."); Nasser-Moghaddassi v. Moghaddassi, 364 S.C. 182, 197, 612 S.E.2d 707, 715 (Ct. App. 2005) (citing Morris v. Morris, 335 S.C. 525, 531, 517 S.E.2d 720, 723 (Ct. App. 1999)) ("Upon dissolution of the marriage, marital property should be divided and distributed in a manner which fairly reflects each spouse's contribution to its acquisition, regardless of who holds legal title."). 

3.  We affirm the family court's decision to award attorney's fees.  Doe v. Doe, 319 S.C. 151, 157, 459 S.E.2d 892, 896 (Ct. App. 1995) (stating an award of attorney’s fees rests within the sound discretion of the trial court and should not be disturbed on appeal absent an abuse of discretion).  A family court should first consider the following factors as set forth in E.D.M. v. T.A.M., in deciding whether to award attorney's fees and costs:  (1) each party's ability to pay his or her own fee; (2) the beneficial results obtained by the attorney; (3) the parties' respective financial conditions; and (4) the effect of the fee on each party's standard of living.  307 S.C. 471, 476-77, 415 S.E.2d 812, 816 (1992); see also Glasscock v. Glasscock, 304 S.C. 158, 161 n.1, 403 S.E.2d 313, 315 n.1 (1991).  We find the family court properly considered the factors set forth in E.D.M.  After deciding to award attorney's fees, a family court should then consider the following factors as set forth in Glasscock in deciding how much to award in attorney's fees and costs:  (1) the nature, extent, and difficulty of the case; (2) the time necessarily devoted to the case; (3) professional standing of counsel; (4) contingency of compensation; (5) beneficial results obtained; and (6) customary legal fees for similar services.  304 S.C. at 161, 403 S.E.2d at 315; see also Feldman v. Feldman, 380 S.C. 538, 546-47, 670 S.E.2d 669, 673 (Ct. App. 2008).  Although the family court did not delineate its consideration of these six factors, we find by our own preponderance of the evidence that the amount of attorney's fees awarded is reasonable under GlasscockSee Henggeler v. Hanson, 333 S.C. 598, 601-02, 510 S.E.2d 722, 724 (Ct. App. 1998) ("On appeal from the family court, this court has jurisdiction to correct errors of law and find facts in accordance with its own view of the preponderance of the evidence.").

AFFIRMED.

WILLIAMS, PIEPER, and LOCKEMY, JJ., concur.