Seels v. Smalls

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

Randall Seels, as the Personal Representative for the
Estate of Olivia Seels Smalls, Respondent,

v.

Joe Truman Smalls, Appellant.

Appellate Case No. 2017-002128

Appeal From Berkeley County
Jack A. Landis, Family Court Judge

Unpublished Opinion No. 2020-UP-275
Submitted May 8, 2020 – Filed September 30, 2020

AFFIRMED

Thomas Ray Sims, Sr., of Thomas Ray Sims Attorney, of
Orangeburg, for Appellant.

Donald Bruce Clark, of Donald B. Clark, LLC, of
Charleston, and Diane C. Current, of Current Law Firm,
PA, of Charleston, both for Respondent.

PER CURIAM: This case arises from an action Olivia Seels Smalls (Wife)
brought against Joe Truman Smalls (Husband) prior to her death, upon which the
family court substituted her personal representative, Randall Seels (Brother), as
plaintiff. Husband argues the family court erred in (1) denying his motion to
dismiss after Wife's death, (2) valuing the parties' rental properties, and (3) failing
to consider all equitable apportionment factors codified in section 20-3-620 of the
South Carolina Code (2014) in its division of the marital property. We affirm.

Wife filed a summons and complaint in the family court, seeking a divorce,
spousal support, and equitable apportionment. Husband and Wife reached
agreements regarding a number of temporary issues. Wife died during the
pendency of the litigation, and Wife's counsel filed a motion to substitute Wife's
personal representative as plaintiff. After a December 30, 2015 hearing, the family
court found no further action should be taken in the case until a personal
representative was appointed.

On February 18, 2016, Brother was appointed personal representative of Wife's
estate and subsequently moved to be substituted for Wife as the plaintiff. Husband
filed a return to the motion and moved to dismiss the case due to Wife's death.

After a hearing, the family court found Brother, as Wife's personal representative,
should be substituted as plaintiff, recognizing that although the issues of divorce
and support abated upon Wife's death, the family court retained jurisdiction to
identify and apportion the marital property.

The family court heard the case on May 15-17, 2017, and filed its final order on
September 28, 2017.

I. Abatement

We find the family court properly denied Husband's motion to dismiss because the
litigation regarding the equitable division of the marital estate did not abate upon
Wife's death.

The family court has exclusive jurisdiction: . . . to hear
and determine actions for divorce a vinculo matrimonii,
separate support and maintenance, legal separation, and
in other marital litigation between the parties, and for
settlement of all legal and equitable rights of the parties
in the actions in and to the real and personal property of
the marriage and attorney's fees, if requested by either
party in the pleadings; . . .
S.C. Code Ann. § 63-3-530 (A)(2) (2010 & Supp. 2019).

During the marriage a spouse shall acquire, based upon
the factors set out in Section 20-3-620, a vested special
equity and ownership right in the marital property as
defined in Section 20-3-630, which equity and ownership
right are subject to apportionment between the spouses
by the family courts of this State at the time marital
litigation is filed or commenced as provided in Section
20-3-620.

S.C. Code Ann. § 20-3-610 (2014). "With certain exceptions, marital property is
'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 . . . regardless of how legal title is held.''' Brown v. Odom, 425 S.C. 420,
431, 823 S.E.2d 183, 188 (Ct. App. 2019) (quoting S.C. Code Ann. § 20-3-630(A)
(2014)). "[M]arital litigation is not abated by the death of a spouse. Therefore, the
family court has continuing jurisdiction to resolve the issues between the parties
pertaining to their divorce." Perry v. Estate of Perry, 323 S.C. 232, 236, 473
S.E.2d 860, 863 (Ct. App. 1996).

In Hodge v. Hodge, this court addressed whether the death of a party to marital
litigation abated the issue of equitable division. 305 S.C. 521, 522, 409 S.E.2d
436, 437 (Ct. App. 1991). There, the wife filed an action for separate support and
maintenance and property division against her husband, and both parties appealed
the family court's final order. Id. at 522, 409 S.E.2d at 437. The husband died
during the pendency of the appeal. Id. The court of appeals considered the issue
of abatement sua sponte, id. at 522, n.1, 409 S.E.2d at 437, n.1, holding:

[U]pon the institution or filing of marital litigation, the
parties' property acquired during the marriage becomes
vested in an estate called marital property in which the
parties have a vested interest subject to equitable
distribution. We also hold that with respect to the
equitable division of marital property, marital litigation is
not abated by the death of a spouse. These holdings are
based upon the statutory law of South Carolina. The
linchpin of our holdings is the legislature's use of the
word 'vested' in S.C. Code Ann. § 20-7-471 (1976) . . . .
Id. at 524, 409 S.E.2d at 438 (footnotes omitted). The litigation of the equitable
division of the marital property was not abated upon the husband's death because
the wife's interest in the marital property vested upon the filing of the action; thus,
the family court retained exclusive jurisdiction. Id. at 525, 409 S.E.2d at 439.

In 2008, the General Assembly, as part of the creation of the Children's Code,
transferred § 20-7-471, the statute upon which the Hodge court relied, to § 20-3-
610. 2008 South Carolina Laws Act 361. However, the "linchpin" statutory
language providing a spouse acquires "a vested special ownership right in the
marital property" remains the same. See S.C. Code Ann. § 20-3-610 (Supp. 2011)
("During the marriage a spouse shall acquire, based upon the factors set out in
Section 20-3-620, a vested special equity and ownership right in the marital
property as defined in Section 20-3-630, which equity and ownership right are
subject to apportionment between the spouses by the family courts of this State at
the time marital litigation is filed or commenced as provided in Section 20-3-
620."). Thus, the family court properly relied upon Hodge in retaining jurisdiction
to identify and apportion the marital estate.

II. Valuation of Rental Properties

We affirm the family court's valuation of the rental properties because the
testimony of Wife's accountant and appraiser, along with the appraisals admitted as
exhibits, provided the best evidence in the record addressing these values. See
Schultze v. Schultze, 403 S.C. 1, 8, 741 S.E.2d 593, 597 (Ct. App. 2013)
("[A]ppellant bears the burden of providing a record on appeal sufficient for
intelligent review and from which an appellate court can determine whether the
trial court erred."). Although the family court's final order indicates Husband
challenged Wife's appraisals and gave his own opinion as to the value of each
property, he testified his values "were just estimates off the top of his head."
Moreover, although Husband testified he completed repairs at the properties over
the years, the testimony provided in the record on appeal fails to set forth any
counter valuation for these properties. In sum, the evidence presented on appeal
supports the family court's valuation of the rental properties. See Nelson v. Nelson,
428 S.C. 152, 177, 833 S.E.2d 432, 445 (Ct. App. 2019) ("A family court may
accept the valuation of one party over another, and the court's valuation of marital
property will be affirmed if it is within the range of evidence presented." (quoting
Pirri v. Pirri, 369 S.C. 258, 264, 631 S.E.2d 279, 283 (Ct. App. 2006)).

III. Consideration of Equitable Apportionment Factors
We find the family court did not err in declining to consider equitable
apportionment factors inapplicable to the circumstances of this case. Section 20-3-
620 of the South Carolina Code (2014) lists fifteen factors for family courts to
consider in equitably dividing marital property. However, not all fifteen factors
apply in every case. For example, Husband and Wife's children were adults, thus
the factor regarding child custody arrangements was irrelevant here. See § 20-3-
620(14). Likewise, other factors were inapplicable due to Wife's death and the fact
that both parties were receiving Social Security.

Nevertheless, even if the family court erred in failing to consider certain of the
statutory factors, this court would be unable to conduct a proper de novo review
due to the scant evidence addressing such additional factors provided in the record
on appeal. See Schultze, 403 S.C. at 8, 741 S.E.2d at 597 ("[A]ppellant bears the
burden of providing a record on appeal sufficient for intelligent review and from
which an appellate court can determine whether the trial court erred."). Husband
specifically argues the family court erred because the statute requires the family
court to consider the income and earning potential of each spouse. However, he
did not provide a financial declaration or other evidence of his income for this
court to consider. There is little evidence in the record regarding his work history
and training, other than Wife's brother's testimony that Husband worked for
SCE&G for approximately thirty years and attended Trident Technical College. In
any event, we find the family court did not err in declining to consider irrelevant
equitable apportionment factors, and we affirm its decision as to the equitable
distribution.

AFFIRMED.1

HUFF, THOMAS, and MCDONALD, JJ., concur.

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