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2010-UP-323 - Baker v. Baker

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Phyllis Barrineau Baker, Appellant,

v.

Jerry Michael Baker, Respondent.


Appeal From Lee County
George M. McFaddin, Jr., Family Court Judge


Unpublished Opinion No.  2010-UP-323
Submitted June 1, 2010 – Filed June 23, 2010


REVERSED AND REMANDED


Marian D. Nettles, of Lake City, and Thomas M. Bultman, of Sumter, for Appellant.

Jerry M. Baker, pro se, of North Myrtle Beach, for Respondent.

FEW, C.J.:  Phyllis B. Baker (Wife) appeals the family court's divorce decree.  Her primary contention is that the family court erred in treating her State disability retirement benefits as both marital property and income.  We agree and reverse.[1] 

Jerry M. Baker (Husband) and Wife were married from 1977 to 2007.  Wife taught public school from the time of the marriage until 1999, when the State found her disabled.  At the time of the divorce, Wife received $2,016.82 per month from the State for her disability.  The divorce decree distributed 50% of this benefit to Husband as part of equitable distribution.  The family court also used the $2,016.82 monthly payment in calculating Wife's income.  In her Rule 59(e), SCRCP, motion, Wife argued her disability benefits were being "double counted" as both income for purposes of determining alimony and as a marital asset subject to distribution.  The family court declined to amend the order. 

This appeal is controlled by this court's decision in Tinsley v. Tinsley, 326 S.C. 374, 483 S.E.2d 198 (Ct. App. 1997).  The Tinsley court noted "the focus of South Carolina appellate courts in deciding whether payments from an employer are marital property subject to distribution, or income, has been on determining whether the payments are compensation for services performed during the course of the marriage."  Id. at 381, 483 S.E.2d at 202 (emphasis added).  Under the reasoning of Tinsley, the family court erred as a matter of law in treating Wife's benefits as a marital asset subject to distribution because the payments were not compensation for services performed during the marriage.  Rather, Wife's disability benefits were replacement for income she would have been receiving had she not become disabled.  Therefore, Wife's benefits should have been classified as income.

Accordingly, we reverse and remand for the family court to reconsider the equitable distribution factors and alimony factors after classifying Wife's disability retirement benefits as income, and subtracting Wife's retirement benefits from the value of the marital estate.  All remaining issues on appeal concern equitable distribution, alimony, and attorney's fees.  The family court must reconsider all of these issues on remand in light of our ruling.  See Sexton v. Sexton, 310 S.C. 501, 503-504, 427 S.E.2d 665, 666 (1993) (reversing and remanding issue of attorney's fees for reconsideration when the substantive results achieved by trial counsel were reversed on appeal).  The family court must also reconsider the issue of security for the payment of alimony in light of our ruling.  See S.C. Code Ann. § 20-3-130(D) (Supp. 2009) (listing the probable economic condition of the supported spouse upon the death of the payor spouse as one of the factors a family court should consider in determining whether to require the payor spouse to maintain a life insurance policy as security for future alimony payments).   

REVERSED AND REMANDED.

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


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