Wooten v. Wooten

ANDERSON, J.

(dissenting):

I respectfully dissent. In this domestic case, Thomas Durrette Wooten, Jr. (Husband) appeals from an order of the Family Court. The issues include identification of marital debt, equitable division of marital property, alimony, and attorney’s fees and costs. I disagree with the analysis and reasoning of the majority. I vote to affirm in part, reverse in part, and modify in part.

FACTS/PROCEDURAL BACKGROUND

Husband and Mona Rae Wooten (Wife) were married in 1976. They have three children, all of whom are past the age of majority.

At the time of the marriage, Husband was on the verge of completing medical school at the Medical University of South Carolina and Wife was employed at the University as a *67nursing instructor. When Husband completed his residency, the parties moved to Columbia so Husband could take a job performing open heart surgery anesthetics.

After approximately one year, the parties moved to Mt. Pleasant. Soon thereafter, Husband and Wife purchased a home on Johns Island, where they lived throughout the duration of the marriage. Although the home, located on two acres of riverfront property, was “barely livable” at the time of the purchase, the parties renovated, restored, expanded, and otherwise improved the home. Eventually, the home became an integral part of the parties’ lifestyles, particularly that of Wife. The parties did not travel extensively or host extravagant parties, but often entertained friends in the home and participated in boating and other recreational activities on the river. Husband and Wife purchased about twenty-four boats during the marriage, ranging in size from a jon boat to a thirty-five foot ocean-going fishing vessel.

Around February 10, 1999, Husband left the marital home and refused to tell Wife where he was planning to live. One month later, he informed the parties’ marriage counselor he no longer loved his wife and only wanted to discuss division of their assets. On March 19, 1999, Husband underwent a vasectomy. Husband admitted he was romantically involved with Pam Perry, his then married co-worker, in April of 1999, although he denied any prior romantic involvement with her.

For a time immediately following the parties’ separation, Husband paid Wife’s expenses. After Husband told Wife she would have to start paying her bills from her own money, Wife began relying heavily on use of her credit cards to make purchases such as food and prescription drugs, and to pay college tuition for one of the parties’ children.

Husband filed this action in June of 1999 seeking, inter alia, an order allowing him to live separate and apart from Wife and equitably apportioning the parties’ marital property and debts. Wife answered and counterclaimed, seeking a divorce on the ground of adultery, possession and ownership of the marital home, equitable division of marital property, an award of alimony, and ancillary relief.

The Family Court heard the action over five days in April and May of 2000. The parties reached an agreement as to *68equal division of their personal property, such that the central issues remaining for adjudication at trial were alimony and the equitable division of marital property. The parties agreed on a fifty-fifty division of the marital estate.

The Family Court valued the parties’ marital estate at $1,328,156. The principal assets consisted of the marital home, which had a fair market value of $675,000 and an equitable value of $539,349; Husband’s $844,026 retirement accounts; Wife’s $11,077 retirement plan; and Husband’s $41,000 interest in his medical practice.

The Family Court granted Wife a divorce on the ground of adultery and determined the marital estate should be divided equally between the parties. To accomplish this division, the court awarded Wife full ownership of the marital home, together with its mortgage debt, her retirement account, and $137,395.50 from the husband’s retirement accounts. The court awarded Husband his interest in his medical practice and the remainder of his retirement accounts, and allocated indebtedness to him totaling $83,552.50. The court found Wife was entitled to $4,300 per month in permanent periodic alimony, and $52,917.21 in attorney’s fees and costs. Husband’s post-trial motion for reconsideration was denied.

STANDARD OF REVIEW

On appeal from the Family Court, this Court has jurisdiction to find the facts in accordance with its own view of the preponderance of the evidence. Dearybury v. Dearybury, 351 S.C. 278, 569 S.E.2d 367 (2002); Hopkins v. Hopkins, 343 S.C. 301, 540 S.E.2d 454 (2000); Murdock v. Murdock, 338 S.C. 322, 526 S.E.2d 241 (Ct.App.1999). This tribunal, however, is not required to disregard the Family Court’s findings. Heins v. Heins, 344 S.C. 146, 543 S.E.2d 224 (Ct.App.2001); Badeaux v. Davis, 337 S.C. 195, 522 S.E.2d 835 (Ct.App.1999). Likewise, we are not obligated to ignore the fact the Family Court judge, who saw and heard the witnesses, was in a better position to evaluate their testimony. Bowers v. Bowers, 349 S.C. 85, 561 S.E.2d 610 (Ct.App.2002); Smith v. Smith, 327 S.C. 448, 486 S.E.2d 516 (Ct.App.1997); see also Dorchester County Dep’t of Soc. Servs. v. Miller, 324 S.C. 445, 477 S.E.2d 476 (Ct.App.1996) (ruling that because appellate court lacks *69the opportunity for direct observation of witnesses, it should accord great deference to the Family Court’s findings where matters of credibility are involved); Terwilliger v. Tenvilliger, 298 S.C. 144, 378 S.E.2d 609 (Ct.App.1989) (holding the resolution of questions regarding credibility and the weight given to testimony is a function of the Family Court judge who heard the testimony). Because the appellate court lacks the opportunity for direct observation of witnesses, it should accord great deference to trial court findings where matters of credibility are involved. Shirley v. Shirley, 342 S.C. 324, 536 S.E.2d 427 (Ct.App.2000).

LAW/ANALYSIS

I. Credit Card Debt

Husband argues the Family Court erred in identifying $12,332 in credit card charges as marital debt subject to equitable division, and in allocating the debt to him, inasmuch as Wife incurred the debt after this action was commenced. I agree the debt should not have been allocated to Husband.

South Carolina Code Ann. § 20-7-472 (Supp.2002) provides in pertinent part:

In making apportionment, the court must give weight in such proportion as it finds appropriate to all of the following factors:
(13) liens and any other encumbrances upon the marital property, which themselves must be equitably divided, or upon the separate property of either of the parties, and any other existing debts incurred by the parties or either of them during the course of the marriage....

Debts incurred for marital purposes are subject to equitable distribution. Jenkins v. Jenkins, 345 S.C. 88, 545 S.E.2d 531 (Ct.App.2001). Section 20-7-472 creates a rebuttable presumption that a debt of either spouse incurred prior to marital litigation is a marital debt, and must be factored into the totality of equitable apportionment. Hickum v. Hickum, 320 S.C. 97, 463 S.E.2d 321 (Ct.App.1995).

“Marital debt” has been defined as debt incurred for the joint benefit of the parties regardless of whether the parties *70are legally jointly liable for the debt or whether one party is legally individually liable. Thomas v. Thomas, 346 S.C. 20, 550 S.E.2d 580 (Ct.App.2001), cert. granted, Jan. 24, 2002; Hardy v. Hardy, 311 S.C. 433, 429 S.E.2d 811 (Ct.App.1993). In equitably dividing a marital estate, the Family Court is to consider the net estate, and must apportion marital debt in conjunction with the apportionment of assets. Hardy, 311 S.C. at 437, 429 S.E.2d at 813; see also Smith v. Smith, 327 S.C. 448, 486 S.E.2d 516 (Ct.App.1997) (marital debt is a factor to be considered in making the equitable apportionment). Marital debt, like marital property, must be specifically identified and apportioned in equitable distribution. Smith, 327 S.C. at 457, 486 S.E.2d at 520 (section 20-7-472 implicitly requires that marital debt, like marital property, be specifically identified and apportioned in the equitable distribution); Frank v. Frank, 311 S.C. 454, 429 S.E.2d 823 (Ct.App.1993). The same rules of fairness and equity which apply to the equitable division of marital property also apply to the division of marital debts. Hardy, 311 S.C. at 437, 429 S.E.2d at 813-14.

The burden of proving a spouse’s debt as nonmarital rests upon the party who makes such an assertion. Hickum, 320 S.C. at 103, 463 S.E.2d at 324; Hardy, 311 S.C. at 437, 429 S.E.2d at 814. “If the trial judge finds that a spouse’s debt was not made for marital purposes, it need not be factored into the court’s equitable apportionment of the marital estate, and the trial judge may require payment by the spouse who created the debt for nonmarital purposes.” Hickum, 320 S.C. at 103, 463 S.E.2d at 324.

Even where a spouse individually incurs debt after a marital separation but before a divorce decree is entered, the debt should be apportioned in accordance- with the principles of equitable distribution where there is a showing that the debt was incurred for the joint benefit of both parties. See Peirson v. Calhoun, 308 S.C. 246, 417 S.E.2d 604 (Ct.App.1992); see also Allen v. Allen, 287 S.C. 501, 339 S.E.2d 872 (Ct.App.1986) (finding that while it is proper to consider marital debts in making an equitable distribution of marital assets, it is also incumbent upon the court which apportions such debts to ensure the debts were incurred for the joint benefit of the parties during the marriage).

*71Giving full efficacy to the burden of proof rule, I am unable to discern from the record on appeal that the credit card debts incurred by Wife during the parties’ separation were for any purpose inuring to the benefit of Husband. Rather, Wife testified she used her credit card to pay part of a college tuition bill for one of the parties’ children and to buy medication, food, and clothing. While these were perhaps legitimate expenses, the resulting credit card debt was not, in my view, incurred for the joint benefit of the parties within the meaning of the governing statute and applicable case law. Moreover, these credit card charges were incurred by Wife subsequent to the filing of marital litigation. The court erred in considering the credit card charges as marital debt subject to equitable apportionment. Concomitantly, I vote to reverse the portion of the Family Court’s order allocating the credit card debt to Husband.

II. Marital Home

Husband asserts the Family Court erred in awarding Wife ownership of the marital home as part of her share in the marital estate. I disagree.

The Family Court is given broad jurisdiction in the equitable distribution of marital property. Murphy v. Murphy, 319 S.C. 324, 461 S.E.2d 39 (1995); see also Greene v. Greene 351 S.C. 329, 569 S.E.2d 393 (Ct.App.2002) (holding Family Court has wide discretion in determining how marital property is to be distributed). The court may use any reasonable means to divide the property equitably. Bowyer v. Sohn, 290 S.C. 249, 349 S.E.2d 403 (1986); Belton v. Belton, 325 S.C. 456, 481 S.E.2d 174 (Ct.App.1997); see also Coxe v. Coxe, 294 S.C. 291, 363 S.E.2d 906 (Ct.App.1987) (stating Family Court judges are given broad jurisdiction in equitable distribution of marital property and trial judge may use any reasonable means to divide estate equitably). The apportionment of marital property is within the Family Court judge’s discretion and will not be disturbed on appeal absent an abuse of discretion. Bowers v. Bowers, 349 S.C. 85, 561 S.E.2d 610 (Ct.App.2002); Peirson v. Calhoun, 308 S.C. 246, 417 S.E.2d 604 (Ct.App.1992).

In order to effect an equitable apportionment, the Family Court may require the sale of marital property and a division of the proceeds. Donahue v. Donahue, 299 S.C. 353, 384 *72S.E.2d 741 (1989); S.C.Code Ann. § 20-7-476 (Supp.2002) (providing that “[t]he court in making an equitable apportionment may order the public or private sale of all or any portion of the marital property upon terms it determines.”). The court, however, should first attempt an “in-kind” distribution of the marital assets. Donahue, 299 S.C. at 360, 384 S.E.2d at 745; Stevenson v. Stevenson, 295 S.C. 412, 368 S.E.2d 901 (1988). A Family Court may grant a spouse title to the marital home as part of the equitable distribution. Donahue, 299 S.C. at 360, 384 S.E.2d at 745. Pursuant to § 20-7-472(10) of the South Carolina Code, the court, in making apportionment, “must give weight in such proportion as it finds appropriate to all of the following factors: .. . (10) the desirability of awarding the family home as part of equitable distribution.” S.C.Code Ann. § 20-7-472(10) (Supp.2002).

Section 20-7-472 lists fifteen factors for the Family Court to consider when making an equitable apportionment of the marital estate. Bowers, 349 S.C. at 97, 561 S.E.2d at 616. The statute vests the Family Court with the discretion to decide what weight should be assigned to the various factors. Id. On review, this Court looks to the overall fairness of the apportionment, and if the result is equitable, that this Court might have weighed specific factors differently than the Family Court is irrelevant. Id.

In deciding to award Wife the marital home in partial realization of her share in the marital estate, the Family Court expressly weighed: the length of time the parties and their children resided in the home during the marriage; Wife’s desire to remain in the home; and the central role the home played in the parties’ lifestyles during the marriage. As well, the court considered the fact that Wife’s deceased father personally performed much of the woodwork on the home during the process of renovation. Pointedly, the court specifically noted that it “could not award the marital home to the Wife no matter how desirable unless it were a part of the fifty percent (50%) of the marital estate to which she is entitled.”

Under these facts and circumstances, there is no error or abuse of discretion in the Family Court’s decision to award Wife the marital home instead of ordering its sale. I am particularly convinced of the propriety of the court’s decision *73in this regard in light of Husband’s vastly superior income and ability to purchase a home without the necessity of divesting Wife of the marital home.

III. Tax Ramifications

Husband claims the Family Court erred in failing to consider the tax consequences in the division of the marital estate. I disagree.

In Ellerbe v. Ellerbe, 323 S.C. 283, 473 S.E.2d 881 (Ct.App.1996), the Court of Appeals analyzed tax issues in connection with equitable apportionment and stated:

South Carolina Code Ann. § 20-7-472(11) (Supp.1995) requires the family court to consider the tax consequences to each party resulting from equitable apportionment. However, if the apportionment order does not contemplate the liquidation or sale of an asset, then it is an abuse of discretion for the court to consider the tax consequences from a supposed sale or liquidation. See Graham v. Graham, 301 S.C. 128, 390 S.E.2d 469 (Ct.App.1990); see also Roe v. Roe, 311 S.C. 471, 429 S.E.2d 830 (Ct.App.1993). Moreover, a transfer of these funds from one party to the other as a part of an equitable division should not result in a tax consequence. Josey v. Josey, 291 S.C. 26, 351 S.E.2d 891 (Ct.App.1986). Here, the parties were awarded their respective accounts. Because we see no need for the accounts to be liquidated, we hold the family court erred in valuing the parties’ retirement accounts at 48% of their face values. In redetermining equitable distribution, the family court shall consider the face values of the parties’ retirement accounts.

Id. at 289, 473 S.E.2d at 884-85.

After Ellerbe, this Court, in Bowers v. Bowers, 349 S.C. 85, 561 S.E.2d 610 (Ct.App.2002), examined tax effects as applied to the valuation and distribution of the husband’s 401(k) account. Bowers explicates:

We further find no error in the Family Court’s failure to expressly consider tax consequences resulting from its award to Wife of one-half the value of Husband’s 401(k) account. Where an order of equitable apportionment does not contemplate the liquidation or sale of an asset, it is an *74abuse of discretion for the court to consider the tax consequences from a supposed sale or liquidation. Ellerbe v. Ellerbe, 323 S.C. 283, 473 S.E.2d 881 (Ct.App.1996). Here, the court’s order does not require or contemplate liquidation of Husband’s 401 (k) account and there is no evidence indicating either party anticipated liquidation of the account.

Id. at 97-98, 561 S.E.2d at 617.

I reject the contention by Husband that the apportionment of marital property in the case sub judice contemplates the liquidation or sale of an asset. The court’s order does not require or contemplate liquidation of Husband’s retirement accounts or the sale of the house. Husband asseverates that, in actuality, he will be required to liquidate either the retirement accounts or to sell the house or both in an attempt to comply financially with the court’s distribution.

In contrariety to Husband’s argument, there is no evidence indicating he will be required to engage in a liquidation of the retirement accounts or to sell the house, other than his self-serving assertions. The Family Court did not err in failing to expressly consider tax consequences resulting from its award to Wife of the house.

IV. Alimony

Husband contends the Family Court’s award to Wife of $4,300 per month in permanent periodic alimony was excessive. I agree.

The decision to grant or deny alimony rests within the discretion of the Family Court judge. Dearybury v. Dearybury, 351 S.C. 278, 569 S.E.2d 367 (2002); Clardy v. Clardy, 266 S.C. 270, 222 S.E.2d 771 (1976); Hatfield v. Hatfield, 327 S.C. 360, 489 S.E.2d 212 (Ct.App.1997). The judge’s discretion, when exercised in light of the facts of each particular case, will not be disturbed on appeal absent abuse thereof. Dearybury, 351 S.C. at 282, 569 S.E.2d at 369; Long v. Long, 247 S.C. 250, 146 S.E.2d 873 (1966). An abuse of discretion occurs when the judge is controlled by some error of law or where the order, based upon findings of fact, is without evidentiary support. Sharps v. Sharps, 342 S.C. 71, 535 S.E.2d 913 (2000); Stewart v. Floyd, 274 S.C. 437, 265 S.E.2d 254 (1980).

*75Alimony is a substitute for the support which is normally incident to the marital relationship. Donahue v. Donahue, 299 S.C. 353, 384 S.E.2d 741 (1989); Morris v. Morris, 335 S.C. 525, 517 S.E.2d 720 (Ct.App.1999); Johnson v. Johnson, 296 S.C. 289, 372 S.E.2d 107 (Ct.App.1988). Generally, alimony should place the supported spouse, as nearly as is practical, in the same position of support he or she enjoyed during the marriage. Allen v. Allen, 347 S.C. 177, 554 S.E.2d 421 (Ct.App.2001); McElveen v. McElveen, 332 S.C. 583, 506 S.E.2d 1 (Ct.App.1998). It is the duty of the Family Court to make an alimony award that is fit, equitable, and just if the claim is well founded. Hinson v. Hinson, 341 S.C. 574, 535 S.E.2d 143 (Ct.App.2000); Woodward v. Woodward, 294 S.C. 210, 363 S.E.2d 413 (Ct.App.1987). Alimony should not, however, serve as a disincentive for spouses to improve their employment potential or to dissuade them from providing, to the extent possible, for their own support. Williamson v. Williamson, 311 S.C. 47, 426 S.E.2d 758 (1993); McElveen v. McElveen, 332 S.C. 583, 506 S.E.2d 1 (Ct.App.1998); Brandi v. Brandi, 302 S.C. 353, 396 S.E.2d 124 (Ct.App.1990).

In making an award of alimony, the following factors must be considered and weighed: (1) the duration of the marriage and ages of the parties at the time of the marriage and at the time of the divorce; (2) the physical and emotional condition of each spouse; (3) the educational background of each spouse, together with the need of each spouse for additional training or education in order to achieve that spouse’s income potential; (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 earnings of both spouses; (7) the current and reasonably anticipated expenses and needs of both spouses; (8) the properties of the parties, including those apportioned to him or her in the divorce or separate maintenance action; (9) custody of the children; (10) marital misconduct or fault of either or both parties if the misconduct has affected the economic circumstances of the parties, or contributed to the breakup of the marriage; (11) tax consequences; (12) existence of any support obligations from a prior marriage; and (13) such other factors the court considers relevant. Dearybury, 351 S.C. at 282-83, 569 S.E.2d at 369; Patel v. Patel, 347 S.C. 281, 555 *76S.E.2d 386 (2001); S.C.Code Ann. § 20-3-130(C) (Supp.2002). No one factor is dispositive. Lide v. Lide, 277 S.C. 155, 283 S.E.2d 832 (1981); Allen, 347 S.C. at 184, 554 S.E.2d at 425.

I am compelled to agree with Husband that, in this case, the Family Court arrived at an excessive amount in determining Wife’s award of alimony. At the time of trial, Husband was fifty-one years old and earned about $217,000 annually. Wife was fifty-two years old, employed as a Deputy Coroner for Charleston County, and earned approximately $47,000 annually, or $3,924 per month. According to Wife’s financial declaration, her total monthly expenses (including, inter alia, the mortgage on the marital home, $250 for anticipated credit card payments, $300 for anticipated lien payments on a new car, and a $789 entertainment expense) amount to about $5,730 per month. Consequently, the Family Court’s award of $4,300 per month to the wife in alimony, added to her net monthly income of $2,552, would afford her a monthly income of $6,852, thereby exceeding her needs by approximately $1,122 per month.

Although Wife established entitlement to alimony, the amount of the Family Court’s award is excessive and amounts to an abuse of discretion. Accordingly, I vote to reverse the amount of alimony awarded and modify the Family Court’s order to reduce the award of permanent periodic alimony to $3,000 per month.

V. Attorney’s Fees and Costs

Husband maintains the Family Court erred in ordering him to contribute $52,917.21 towards Wife’s attorney’s fees and costs. I disagree.

Under South Carolina Code Ann. § 20-3-130(H) (Supp. 2002), the judge may order one party to pay a reasonable amount to the other for attorney’s fees and costs incurred in maintaining an action for divorce. Smith v. Smith, 327 S.C. 448, 486 S.E.2d 516 (Ct.App.1997). An award of attorney’s fees will not be overturned absent an abuse of discretion. Stevenson v. Stevenson, 295 S.C. 412, 368 S.E.2d 901 (1988); Shirley v. Shirley, 342 S.C. 324, 536 S.E.2d 427 (Ct.App.2000); see also Woodall v. Woodall, 322 S.C. 7, 471 S.E.2d 154 (1996) (award of attorney’s fees and costs is within sound discretion *77of Family Court judge). Before awarding attorney’s fees, the Family Court should consider (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 attorney’s fee on each party’s standard of living. E.D.M. v. T.A.M., 307 S.C. 471, 415 S.E.2d 812 (1992); Heins v. Heins, 344 S.C. 146, 543 S.E.2d 224 (Ct.App.2001). In determining the amount of attorney’s fees to award, the court should consider: (1) the nature, extent, and difficulty of the services rendered; (2) the time necessarily devoted to the case; (3) counsel’s professional standing; (4) the contingency of compensation; (5) the beneficial results obtained; and (6) the customary legal fees for similar services. Glasscock v. Glasscock, 304 S.C. 158, 403 S.E.2d 313 (1991); Bowers v. Bowers, 349 S.C. 85, 561 S.E.2d 610 (Ct.App.2002).

Here, Husband abandoned the marital home, began an adulterous affair, refused to participate in marital counseling in any meaningful way, rejected Wife’s attempts at reconciliation, and decided to commence marital litigation, thereby putting Wife to the task of defending against the action. In addition, the issues of equitable apportionment and distribution were highly contested at trial and, notwithstanding this Court’s modifications to the Family Court’s order on appeal, Wife’s attorney obtained several beneficial results on her behalf, including an award of divorce on the ground of adultery and an equal division of the marital estate.

Having reviewed the award of attorney’s fees in light of the applicable factors, I conclude the Family Court did not abuse its discretion. There is sufficient evidentiary support in the record to uphold the judge’s award of attorney’s fees.

CONCLUSION

I vote to reverse the Family Court’s order identifying $12,332 in credit card charges as marital debt subject to equitable division, and in allocating the debt to Husband. Wife made no showing and the record did not reveal that the credit card debts Wife incurred during the parties’ separation were incurred for any purpose inuring to the benefit of Husband. Moreover, these credit card charges were incurred *78by Wife subsequent to the filing of marital litigation. Thus, the debt should not have been allocated to Husband.

Although Wife established entitlement to alimony, the amount of the Family Court’s award is excessive and amounts to an abuse of discretion. Accordingly, I vote to reverse the amount of alimony awarded and modify the Family Court’s order to reduce the award of permanent periodic alimony from $4,300 to $3,000 per month.

The court did not err in awarding Wife the marital home in partial realization of her share in the marital estate. In addition, the Family Court properly ordered Husband to contribute $52,917.21 towards Wife’s attorney’s fees and costs. I vote to affirm the judge’s rulings regarding the marital home and the award of attorney’s fees and costs.

For the foregoing reasons, I vote to affirm in part, reverse in part, and modify in part.