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2012-UP-212 - Kinsey v. Kinsey

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

Mark S. Kinsey, Respondent,

v.

Leecia B. Kinsey, Appellant.


Appeal From Lexington County
 Richard W. Chewning, III, Family Court Judge


Unpublished Opinion No. 2012-UP-212
Heard October 5, 2011 – Filed March 28, 2012   


AFFIRMED


Thomas M. Neal, III, and Yulee E. Harrelson, of Columbia, for Appellant.

C. Vance Stricklin, Jr., of West Columbia, and Katherine Carruth Goode, of Winnsboro, for Respondent.

PER CURIAM: Leecia B. Kinsey appeals the family court's equitable distribution of the marital estate, including evidentiary issues and the family court's determination that The Kinsey Corporation was not marital property.  We affirm.

1.  We find no error in the family court awarding Husband 60% of the marital estate and Wife 40%.  See Doe v. Doe, 370 S.C. 206, 213-14, 634 S.E.2d 51, 55 (2006) (stating the appellate court looks to the overall fairness of the apportionment, and it is irrelevant that this court might have weighed specific factors set forth in Section 20-3-620(B) of the South Carolina Code (Supp. 2011) differently than the family court); Fitzwater v. Fitzwater, ___ S.C. ___, ___, 721 S.E.2d 7, 12 (Ct. App. 2011) (stating while a 50-50 division is considered guidance for an appropriate division, it is not mandatory).  The family court made detailed findings on each of the factors set forth in section 20-3-620(B).  It emphasized at the hearing on Wife's motion to alter or amend it did not rely on Wife's marital misconduct in determining the division.  The family court also carefully considered the parties' indirect and direct contributions, including that over the course of the marriage, Husband earned 86.07% of the income while Wife earned 13.93%.  Wife failed to meet her burden of proving the family court's division of the marital estate was against the preponderance of the evidence.  See Lewis v. Lewis, 392 S.C. 381, 392, 709 S.E.2d 650, 655 (2011) (stating the burden is on the appellant to demonstrate the family court's findings are against the preponderance of the evidence). 

2.  As to Wife's argument the family court erred in admitting into evidence and relying upon evidence of Wife's paramour's wealth, we find no reversible error.  See Divine v. Robbins, 385 S.C. 23, 37, 683 S.E.2d 286, 293 (Ct. App. 2009) (stating to warrant reversal based on the admission or exclusion of evidence, the complaining party must prove both error and resulting prejudice).  Although the family court allowed Husband to testify as to what Wife told him was her paramour's net worth, the court specifically stated at the hearing on Wife's motion to alter or amend and in its order on the motion that wife's adultery and her paramour's wealth did not affect its decision to divide the property 60-40.  We find Wife failed to establish any prejudice from the admission of the evidence. 

3.  We find no merit to Wife's argument the family court erred in finding she abandoned the marital residence.  The family court did not consider desertion as a fault ground for divorce.  In addition, Wife does not assert on appeal that she is entitled to a credit due to Husband's decision to pay the mortgage through the equity line.  We find no indication this statement affected the family court's decision; thus, we find no error.  See McCall v. Finley, 294 S.C. 1, 4, 362 S.E.2d 26, 28 (Ct. App. 1987) ("[W]hatever doesn't make any difference, doesn't matter.").

4.  We find the family court did not err in including in the marital estate the automobile Wife's son drove.  Wife does not challenge the family court's valuation or allocation of the value of the vehicle to her.  She only asserts the vehicle was not marital property.  Because the vehicle was owned by Husband at the time of the commencement of this action, it was marital property.  See S.C. Code Ann. § 20-3-630(A) (Supp. 2011) (defining marital property as "all real and personal property which has been acquired by the parties during the marriage and which is owned as of the date of filing or commencement of marital litigation . . .") (emphasis added).  

5.  We find Wife's argument that the family court erred in failing to require Husband to first utilize the money in the Kinsey Rental Account for expenses associated with the parties' beach house before any other marital funds were used is conclusory and therefore abandoned.  See Bennett v. Investors Title Ins. Co., 370 S.C. 578, 599, 635 S.E.2d 649, 660 (Ct. App. 2006) (finding appellants' abandoned issue where they failed to cite any case law for a proposition and made only conclusory arguments in support).

6.  We find Wife failed to support with authority her argument the family court erred in giving Husband complete control for the listing and sale of the parties' properties; thus, this issue is abandoned.  See Bennett, 370 S.C. at 599, 635 S.E.2d at 660 (finding appellants' abandoned issue where they failed to cite any case law for a proposition and made only conclusory arguments in support).  We furthermore find no error.  The parties had already experienced difficulties reaching agreements in selling the marital assets.  As the family court noted, both parties would benefit from achieving the maximum price and neither party was motivated to sell the properties for less than the maximum value.  We find Wife failed to meet her burden of proving error.  See Lewis, 392 S.C. at 392, 709 S.E.2d at 655 (stating the burden is on the appellant to demonstrate the family court's findings are against the preponderance of the evidence). 

7.  We find Wife also failed to support with authority her argument the family court erred in failing to order that the money held in escrow be paid to the parties, and thereafter the parties be required to pay proportionally toward expenses associated with the remaining properties of the parties.  This issue is abandoned.  See Bennett, 370 S.C. at 599, 635 S.E.2d at 660 (Ct. App. 2006) (finding appellants' abandoned issue where they failed to cite any case law for a proposition and made only conclusory arguments in support).  In the alternative, given the parties' histories, we find the family court did not err in putting in place a mechanism to ensure the payment of marital debt until the assets could be sold See Lewis, 392 S.C. at 392, 709 S.E.2d at 655 (stating the burden is on the appellant to demonstrate the family court's findings are against the preponderance of the evidence). 

8.  We find the family court did not err in holding The Kinsey Company had not been transmuted into marital property and that Wife was not entitled to a special equity in the business.  See S.C. Code Ann. § 20-3-630(A)(2) (Supp. 2011) (stating property acquired prior to the marriage is generally considered nonmarital); S.C. Code Ann. § 20-3-630(A)(5) (Supp. 2011) (stating marital property does not include "any increase in value in nonmarital property, except to the extent that the increase resulted directly or indirectly from efforts of the other spouse during marriage"); Johnson v. Johnson, 296 S.C. 289, 295, 372 S.E.2d 107, 110-11 (Ct. App. 1988) (stating although nonmarital property may be transmuted into marital property, the spouse claiming nonmarital property has been transmuted must produce objective evidence showing the parties themselves regarded the property as the common property of the marriage); id. 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.").  Husband formed The Kinsey Company in 1994.  Wife never owned any stock in the corporation or served as an officer.  Although The Kinsey Company significantly increased in value over the course of the marriage, as the family court noted, Husband's efforts during the late 1990's housing boom were the primary reason for the growth of the company.  While Wife worked as the exclusive interior designer for The Kinsey Company, she did this work through other companies where she was an employee until forming her own company, Palmetto Interiors, in 2001.  The record supports the family court's ruling Wife was sufficiently compensated for her services to The Kinsey Company and Wife did not provide any benefit to the company that could not have been obtained through another decorator.  See Arnal v. Arnal, 363 S.C. 268, 294, 609 S.E.2d 821, 835 (Ct. App. 2005) (finding husband was not entitled to special equity interest where he was compensated for work and his work amounted to very little time actually spent); Webber v. Webber, 285 S.C. 425, 429, 330 S.E.2d 79, 81 (Ct. App. 1985) (holding evidence did not show wife's contribution to business was material when she did not contribute funds to start the business and she did not contribute very much uncompensated service to the business).  In addition, we find no evidence Husband co-mingled marital funds with those from The Kinsey Company.  Accordingly, we find Wife failed to prove Husband intended for The Kinsey Company to be a marital asset. 

9.  We find no merit in Wife's argument the family court erred in ordering her to return certain items of personal property to the Edisto House.  The court did not accuse Wife of "stripping" the house, but merely required her to return marital property to the house unless the parties agreed otherwise.  Wife contends the family court erred in granting relief not requested.  Because she failed to raise this contention to the family court in her motion to alter or amend, it is not preserved.  See In re Estate of 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.").

AFFIRMED.

HUFF, PIEPER, and LOCKEMY, JJ.,  concur.