Tina G. McMillan v. Jimmy Dan McMillan

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

Tina G. McMillan, Respondent,

v.

Jimmy Dan McMillan, Appellant.

Appellate Case No. 2018-001054

Appeal From Spartanburg County
Dale Moore Gable, Family Court Judge

Unpublished Opinion No. 2022-UP-039
Heard September 14, 2021 – Filed February 2, 2022

AFFIRMED AS MODIFIED

Bruce Wyche Bannister and Luke Anthony Burke, both
of Bannister, Wyatt & Stalvey, LLC, of Greenville, for
Appellant.

Gwendolynn Wamble Barrett, of Barret Mackenzie,
LLC, of Greenville, for Respondent.

PER CURIAM: In the current appeal, Jimmy Dan McMillan (Husband) argues
the family court erred by making new findings of fact on remand, failing to
properly and equitably divide the parties' marital estate, and awarding post-
judgment interest. We affirm as modified.
Facts and Procedural History

Husband and Tina G. McMillan (Wife) married on October 4, 1996; no children
were born of their marriage. On December 5, 2011, Wife moved out of the marital
home located at 171 Tucapau Road (Tucapau). On December 16, 2011, Wife filed
an action seeking an order of separate support and maintenance, alimony, and
attorney's fees. Husband answered and counterclaimed, denying Wife's
entitlement to alimony, seeking a divorce on the ground of adultery, and requesting
attorney's fees and costs.

The case was tried on November 12, 13, and 14, 2013, before the Honorable Dale
Moore Gable.1 The parties presented evidence about several businesses Husband
created with his business partner, including McMillan-Carter, Inc., which was
incorporated in 1977. During the parties' marriage, Husband and Buddy Carter
formed Carmac, LLC and Tractor Factor, LLC as holding companies for
McMillan-Carter's real estate and equipment. Husband and Carter also formed
Reynolds Utilities, LLC; Peloton, Inc.; and Panacea Biofuels, LLC. While
Husband testified he did not intend for any of these companies to be considered
marital property, Wife explained they "always lived out of" the businesses during
the marriage. The parties also presented evidence about their other real and
personal property.

By order dated March 11, 2014 (Original Order), the family court divided the
marital property, awarded Husband a divorce on the statutory ground of adultery,
and sealed the court file.2 Husband timely filed a motion to alter or amend,
requesting that the family court reconsider certain provisions of the Original Order.
The family court denied Husband's motion, and Husband appealed. The family
court filed a subsequent order addressing attorney's fees, in which it found Wife
prevailed on certain issues and ordered Husband to pay Wife $10,099.50 in

1
At the time of trial, Wife was forty-eight and Husband was sixty-six.
2
The family court ordered the record be sealed "[g]iven the vast amount of
financial information that was introduced into evidence in this matter and the fact
that much of this information deals with [Husband's] business partner[,] who is not
a party to this action[,] and the fact that [Wife] is a sitting Magistrate Court Judge."
McMillan v. McMillan, 417 S.C. 583, 589, 790 S.E.2d 216, 219 (Ct. App. 2016)
(alterations in original).
attorney's fees and costs. Husband's appeal from this fee award was consolidated
with his appeal of the Original Order.

Husband achieved significant success in his prior appeal. McMillan, 417 S.C.
589, 790 S.E.2d 219. This court reversed the family court's classifications of
McMillan-Carter, Inc.; Carmac, LLC; and Tractor Factor, LLC; as marital
property, finding McMillan-Carter was not transmuted, and Carmac and Tractor
Factor were acquired in exchange for non-marital property from McMillan-Carter.
Id. at 590–95, 790 S.E.2d at 220–22. However, the court affirmed the family
court's findings that Husband's three additional businesses (Reynolds, Peloton, and
Panacea) were marital property. Id. at 596–97, 790 S.E.2d at 223. We agreed with
Husband's argument that the family court erred in its consideration of his
retirement account, and we classified $75,000 worth of these retirement funds as
nonmarital. Id. at 597, 790 S.E.2d at 223–24. We further found the family court
erred in classifying Wife's jewelry as nonmarital property and in failing to classify
as nonmarital debt the funds from an equity line of credit Wife accessed on the
marital home post separation. Id. at 598–99, 790 S.E.2d at 224. In sum, we
affirmed in part, reversed in part, and remanded "to allow the family court to
consider the equitable apportionment anew, analyzing the statutory factors in light
of our opinion." Id. at 599, 790 S.E.2d at 225.

By agreement of the parties, the family court ruled its decision on remand would
be "based upon the evidence and testimony presented at [the original trial], as well
as the findings of the South Carolina Court of Appeals. There shall be no new
evidence presented." After briefing by both parties, the family court issued its final
order on remand, in which it ordered Husband to pay to Wife $209,446.50, plus
judgment interest,3 to equalize the property division, and awarded Wife $7,719.45
in attorney's fees and costs. The family court further ordered "[a]ll other
provisions of the court's prior final order filed March 11, 2014 not inconsistent
herewith shall remain in full force and effect." Husband moved to alter or amend.
On May 25, 2018, the family court filed an amended final order, and Husband
timely appealed.

Standard of Review

3
The family court then subtracted $47,000 from this figure in light Wife's non-
marital debt, "leaving a balance due to Wife of $162,446.50 as of June 5, 2014."
On appeal from the family court, the appellate court reviews factual and legal
issues de novo. Stoney v. Stoney, 422 S.C. 593, 596, 813 S.E.2d 486, 487 (2018)
(per curiam). Thus, the appellate court has the authority to find facts in accordance
with its own view of the preponderance of the evidence. Lewis v. Lewis, 392 S.C.
381, 384, 392, 709 S.E.2d 650, 651, 655 (2011). However, this broad scope of
review does not require the appellate court to disregard the fact that the family
court, which saw and heard the witnesses, was in a better position to evaluate their
credibility and assign comparative weight to their testimony. Id. at 385, 709
S.E.2d at 651–52. "Moreover, consistent with our constitutional authority for de
novo review, an appellant is not relieved of his burden to demonstrate error in the
family court's findings of fact." Id. at 392, 709 S.E.2d at 655. "Consequently, the
family court's factual findings will be affirmed unless 'appellant satisfies this court
that the preponderance of the evidence is against the finding of the [family] court.'"
Id. (quoting Finley v. Cartwright, 55 S.C. 198, 202, 33 S.E. 359, 360–61 (1899)).

Law and Analysis

I. Findings of Fact

Husband argues the family court erred by making new findings of fact on remand
where the original findings were not appealed and the new findings lack
evidentiary support. Specifically, Husband takes issue with findings 2, 3, 4, and 6
of the amended final order.

"[A] trial court has no authority to exceed the mandate of the appellate court on
remand." Milton P. Demetre Fam. Ltd. P'ship v. Beckmann, 413 S.C. 38, 52, 773
S.E.2d 596, 604 (Ct. App. 2014) (quoting S.C. Dep't of Soc. Servs. v. Basnight, 346
S.C. 241, 250, 551 S.E.2d 274, 279 (Ct. App. 2001)). "The mandate of the
appellate court is jurisdictional. The trial court has a duty to follow the appellate
court's directions." Id. (quoting Prince v. Beaufort Mem'l Hosp., 392 S.C. 599,
605, 709 S.E.2d 122, 125 (Ct. App. 2011); see Basnight, 346 S.C. at 250–51, 551
S.E.2d at 279 ("Once a mandate is issued from an appellate court to a trial court,
the trial court 'is vested with jurisdiction only to the extent conferred by the
appellate court's opinion and mandate.'" (quoting 5 Am. Jur. 2d Appellate Review §
784, at 453 (1995))).

In our prior McMillan opinion, we "recognize[d] our reversal of the family court's
designation of certain property as marital property and Wife's jewelry as
nonmarital property impacts the equitable distribution award." McMillan, 417 S.C.
at 599, 790 S.E.2d at 225. "We specifically note[d] that two of the factors a family
court must consider in apportioning the marital estate are the value of the marital
property and the nonmarital property of the parties." Id. We found "the family
court erred by classifying three businesses, a portion of Husband's retirement
account, and a line of credit as marital and by considering Wife's jewelry
nonmarital property." Id. Accordingly, we remanded this matter "to allow the
family court to consider the equitable apportionment anew, analyzing the statutory
factors in light of our opinion." Id. We further noted "the family court may also
consider Husband's contributions to acquiring the marital home in analyzing the
equitable apportionment factors on remand." Id. at 599 n.3, 790 S.E.2d at 225 n.3.

"When distributing marital property, the family court should consider all fifteen
factors set forth in the Code." Craig v. Craig, 365 S.C. 285, 290, 617 S.E.2d 359,
361 (2005). The family court "must give weight in such proportion as it finds
appropriate to all of the following factors" in apportioning marital property: (1) the
duration of the marriage; (2) marital misconduct or fault of the parties; (3) the
parties' contributions; (4) the income of each spouse; (5) the health of each spouse;
(6) each spouse's need for training or education; (7) the nonmarital property of
each spouse; (8) the parties' retirement benefits; (9) the existence of a spousal
support award; (10) the use of the marital home; (11) any tax consequences; (12)
the existence of any support obligations; (13) any lien or encumbrances on marital
property; (14) child custody arrangements and obligations; and (15) such other
relevant factors as the court enumerates. S.C. Code § 20-3-620 (B) (2014).

"Although statutory factors provide guidance, there is no formulaic approach for
determining an equitable apportionment of marital property." Lewis, 392 S.C. at
391, 709 S.E.2d at 655. Here, there was never any agreement, order, or directive
stating the trial court could not, or should not, make additional findings of fact
based upon the trial record below in considering the equitable distribution anew
pursuant to the prior opinion's mandate. No new evidence was presented on
remand, and the family court set forth its findings to support its analysis of the
statutory factors. In our view, it would be impossible for the family court to
consider "the equitable apportionment anew" without reviewing the record and
making commensurate findings of fact in its analysis. Therefore, we find generally
that the family court acted in accordance with this court's directive on remand, and
we address Husband's challenges to the court's specific findings below.

A. Finding 2

In the Original Order, the family court determined Husband was retired and in the
process of winding down his businesses. No other finding was made regarding the
parties' respective incomes and neither party appealed this finding. On remand, the
family court found Wife earned $3,160.81 per month and Husband earned $4,000
at the time of trial. However, at trial, Wife did not dispute that she had recently
received a raise and earned $42,000 annually, or $3,500 per month. Thus, we
affirm as modified on this point to correct the family court's finding regarding
Wife's monthly income. The appropriate figure is $3,500 per month.

Additionally, in the Original Order, the family court made no finding regarding the
parties' dating prior to marriage. Wife testified "Husband did not want to marry
her until he was financially able to take care of her without her working outside of
the home." Husband did not dispute this, and neither party appealed this finding.
On remand, the family court found the parties dated for eight years prior to
marrying. There is evidence in the record supporting this finding of fact; however,
we acknowledge Husband's argument that the parties' relationship prior to the
marriage is irrelevant to the equitable distribution award here and likely exceeded
the scope of the mandate. Thus, we modify the family court's order addressing this
finding accordingly.

B. Finding 3

The family court made no findings in the Original Order regarding Wife's duties in
Husband's businesses or her indirect contributions to the marriage, and neither
party appealed this finding. Husband argues the only evidence presented at trial
was that Wife was appropriately compensated for her efforts in his business—
Husband's expert opined Wife was appropriately compensated, and Wife admitted
she received proper compensation. On remand, the family court found Wife
contributed to the marriage extensively and contributed to Husband's businesses by
working without adequate payment.

Although Wife testified she eventually received proper compensation from
Husband's companies based upon her education, background, and work experience,
she also testified she did not receive any compensation during a period of time
early in their marriage. Wife initially worked unpaid for McMillan-Carter at night,
using an Autocad program to assist the employees using the machinery the next
day. She ran errands and helped in the office with bookkeeping, essentially acting
as an administrator for the office. Additionally, Wife served as an event planner
for Husband's business by entertaining at Christmas parties and summer parties,
finding venues for events, calling vendors, arranging for catering, and doing other
necessary event tasks.
While Wife admitted she had a housekeeper paid from Husband's income and she
stopped cooking the family's meals when her son moved out several years prior to
the parties' separation, it appears that Husband's sole considerations when
analyzing Wife's indirect contributions as a homemaker related to cooking and
cleaning. However, there is also evidence in the record showing Wife paid the
parties' bills, was responsible for the daily maintenance and upkeep of the Tucapau
property, and generally took care of the parties' personal lives, leaving Husband
free to focus on running his various businesses. Additionally, Wife took over the
care of one of Husband's daughters from his previous marriage—who had
significant diagnosed health issues—when her mother was unable to do so and
Husband could not accept her medical issues. Moreover, Wife made considerable
efforts to help Husband mend his strained relationship with his daughters.

Because this court remanded this matter "to allow the family court to consider the
equitable apportionment anew, analyzing the statutory factors in light of our
opinion," the family court did not err in making new findings of fact regarding
Wife's indirect contributions to the marriage, as this is one of the statutory factors
the family court must weigh in making an equitable apportionment. See § 20-3-
620 (B)(3) ("In making apportionment, the court must give weight in such
proportion as it finds appropriate to . . . . the value of the marital property . . . . The
contribution of each spouse to the acquisition, preservation, depreciation, or
appreciation in value of the marital property, including the contribution of the
spouse as homemaker; provided, that the court shall consider the quality of the
contribution as well as its factual existence . . . . "). As this court has recognized,
"in many long-term marriages, one spouse becomes the primary breadwinner while
the other spouse makes less or even no money in order to have the flexibility to
keep the household running smoothly." Doe v. Doe, 370 S.C. 206, 215, 634 S.E.2d
51, 56 (Ct. App. 2006). "This arrangement is agreed upon, often implicitly, among
the parties, and it would be unfair to the spouse who undertook household duties
for the family court to apportion the marital estate solely based on the parties'
direct financial contributions." Id. Accordingly, we find no error as to finding 3.

C. Finding 4

The family court made no finding in the Original Order regarding Husband's
indirect contributions to the marriage, and neither party appealed this finding.
Nevertheless, on remand, the family court found there was no testimony regarding
Husband's indirect contributions to the marriage at trial.
Husband avers there is ample evidence in the record reflecting his indirect
contributions to Wife and to the marriage, including paying for Wife to obtain her
college degree and utilizing his political affiliations in Wife's appointment as a
magistrate judge. However, our review of the record reveals Wife completed half
of her four-year degree prior to the marriage, and after the parties were married,
they paid for her tuition from the marital account. Regardless, Husband and Wife
agree that Husband is responsible for her appointment and that he could work to
prevent her from being reappointed at the end of her term. Based on Husband's
financial assistance in at least a portion of Wife's college degree as well as his
political connections, which likely aided in her appointment as a magistrate judge,
we find Husband contributed to Wife's earning potential and assisted her in
alleviating her need for additional training or education to achieve her income
potential. See S.C. Code Ann. § 20-3-620 (B)(4) (mandating the family court must
give weight in such proportion as it finds appropriate to "the income of each
spouse, the earning potential of each spouse, and the opportunity for future
acquisition of capital assets"); § 20-3-620 (B)(6) (addressing "the need of each
spouse or either spouse for additional training or education in order to achieve that
spouse's income potential"). Thus, we find the family court erred in finding there
was no testimony as to Husband's indirect contributions to the marriage, and we
modify the family court's order addressing this finding accordingly.

D. Finding 6

The family court made no finding in the Original Order that Wife contributed
premarital funds to the Tucapau property. Neither party appealed the lack of such
findings. However, on remand, the family court found Wife put $16,000 from the
proceeds of her premarital home into Tucapau.

The record supports this finding; in fact, Husband listed this contribution on his
sworn financial declaration. Further, Tucapau is titled solely in Wife's name and is
jointly mortgaged. There is also evidence showing the parties added on to the
Tucapau home, and made constant improvements to the property over the course of
their marriage. Thus, we find the family court did not err in making new findings
of fact regarding Wife's contribution of funds. See § 20-3-620 (B)(3) ("In making
apportionment, the court must give weight in such proportion as it finds
appropriate to . . . . the value of the marital property . . . . The contribution of each
spouse to the acquisition, preservation, depreciation, or appreciation in value of the
marital property, including the contribution of the spouse as homemaker; provided,
that the court shall consider the quality of the contribution as well as its factual
existence . . . . "). Additionally, we note Husband seeks credit for his own
premarital investment in Tucapau. As reflected in its order, the family court
"considered Husband's financial contributions to the marriage, including his non-
marital contributions" as well as both parties' indirect contributions to the marriage.
We find no error in the court's analysis.

Likewise, the family court made no finding in the Original Order regarding the
maintenance of Tucapau, and neither party appealed this. On remand, the family
court found Wife was responsible for daily maintenance and upkeep on the
residence for over fifteen years. We find no error in this finding.

Marital property is defined 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." S.C. Code Ann. § 20-3-630 (2014).
However, property acquired by either party prior to the marriage can be transmuted
into marital property if: "(1) it becomes so commingled with marital property as to
be untraceable; (2) it is jointly titled; or (3) it is utilized by the parties in support of
the marriage or in some other manner so as to evidence an intent by the parties to
make it marital property." Greene v. Greene, 351 S.C. 329, 338, 569 S.E.2d 393,
398 (Ct. App. 2002). Importantly, transmutation is a matter of intent to be gleaned
from the facts of each case. Id. "The spouse claiming transmutation must produce
objective evidence showing that, during the marriage, the parties themselves
regarded the property as the common property of the marriage." Johnson v.
Johnson, 296 S.C. 289, 295, 372 S.E.2d 107, 110–11 (Ct. App. 1988). "Such
evidence may include placing the property in joint names, transferring the property
to the other spouse as a gift, using the property exclusively for marital purposes,
commingling the property with marital property, using marital funds to build
equity in the property, or exchanging the property for marital property." Id. at 295,
372 S.E.2d at 111.

The family court made no finding in the Original Order addressing Husband's
intention regarding his nonmarital interest in Tucapau. Husband specifically
appealed the family court's finding that Tucapau was marital property, and this
court stated "the family court may also consider Husband's contributions to
acquiring the marital home in analyzing the equitable apportionment factors on
remand." McMillan, 417 S.C. at 599 n.3, 790 S.E.2d at 225 n.3 (emphasis added).
Husband presented evidence that, at the time of the marriage, his equity in the
property was $76,027. Husband listed Tucapau on his marital assets addendum as
marital property to be divided by the court, and he testified that when he titled this
property solely in Wife's name, it was his understanding and intention that doing so
would make it a marital asset. See Pruitt v. Pruitt, 389 S.C. 250, 261, 697 S.E.2d
702, 708 (Ct. App. 2010) ("Transmutation is a matter of intent to be gleaned from
the facts of each case, and the spouse claiming transmutation 'must produce
objective evidence showing that, during the marriage, the parties themselves
regarded the property as the common property of the marriage."' (quoting Johnson,
296 S.C. at 295, 372 S.E.2d at 110–11 (Ct. App. 1988))). Thus, we agree with the
family court's finding that Tucapau was transmuted into martial property.

II. Equitable Division

Husband argues the family court erred by failing to properly and equitably divide
the parties' marital estate. Relying on Fredrickson v. Schulze, 416 S.C. 141, 785
S.E.2d 392 (Ct. App 2016), he asserts that the marital estate of the parties should
be divided such that Husband receives seventy percent of the value of the marital
estate and Wife receives thirty percent.4 We disagree.

Here, the family court reanalyzed the relevant factors in determining an equitable
apportionment on remand, and ultimately found the parties' marital property should
be divided equally between them. See § 20-3-620 (B). We find no error in the
family court's reanalysis of the assets and liabilities or in its consideration of the
parties' respective contributions, direct and indirect, to the overall marital estate.

Additionally, of note is that both parties testified they wanted the court to divide
their marital assets equally between them and felt it was fair to do so. See State v.
Dunbar, 356 S.C. 138, 142, 587 S.E.2d 691, 694 (2003) ("A party may not argue
one ground at trial and an alternate ground on appeal."); see also TNS Mills, Inc. v.
S.C. Dep't of Revenue, 331 S.C. 611, 617, 503 S.E.2d 471, 474 (1998) ("An issue
conceded in a lower court may not be argued on appeal."). We find the overall
distribution is fair, evidence supports the family court's calculations, and a
fifty-fifty distribution is what the parties testified they wanted during the
underlying proceedings.

III. Interest

4
In Fredrickson, this court held a seventy-thirty division of the marital estate was
appropriate where one party contributed the vast majority of the income to acquire
and grow the marital estate and that same party brought significant non-marital
property into the marriage. 416 S.C. at 157, 785 S.E.2d at 401. The facts of
Fredrickson differ significantly from those of this case.
Husband argues the family court erred by applying interest to the division of the
parties' assets where no fixed dollar amount was awarded to Wife and her portion
of the estate was significantly reduced on appeal from $595,263.20 to $162,446.50.
We disagree.

Citing Casey v. Casey, 311 S.C. 243, 245–46, 428 S.E.2d 714, 716 (2007), for the
proposition that Husband should be required to pay post-judgment interest on fixed
awards of money made as part of the equitable distribution of property, the family
court found "it is fair and equitable for Husband to pay judgment interest on the
sum of $162,446.50 owed to Wife in equitable distribution." The family court
further stated, "Interest accrues if the ordered payments are not made, even if the
other spouse appeals the amount of the award." Dale v. Dale, 341 S.C. 516, 534
S.E.2d 705 (Ct. App. 2000) (affirming an award of post-judgment interest to the
wife although she unsuccessfully challenged on appeal the amount of cash her
husband was required to pay pursuant to equitable distribution). Finally, the
family court noted that in Calhoun v. Calhoun, our supreme court discussed a two-
judgment situation similar to the case at bar. 339 S.C. 96, 103, 529 S.E.2d 14, 18
(2000). There, the court stated it "has never ruled on whether interest accrues
during the pendency of an appeal when the appeal is made by the judgment
creditor on the basis of a claim of inadequacy and the appeal is successful." Id. at
103, 529 S.E.2d at 18. The court explained, "The case before us is a perfect
example of how complicated calculating post-judgment interest can become when
a money judgment is modified at several different junctures before reaching
finality and why a bright line rule for the accrual of interest needs to be
established." Id. at 104, 529 S.E.2d at 19. The supreme court concluded:

While different jurisdictions have come up with creative
and complicated methods of resolving the issue, it
appears that the simplest way to resolve it is by adopting
a rule that when a money judgment is finalized, whether
in a lower court or in an appellate court, the interest on
that amount, whether it has been modified upward or
downward or remains the same, runs from the date of the
original judgment.

Id.

Here, Husband successfully appealed the equitable distribution and the amount
awarded to Wife decreased significantly. Although Husband is correct that Casey,
Dale, and Calhoun represent three factual circumstances distinct from this case in
that none of the parties ordered to pay interest in these cases were as successful on
appeal as he has been, the law appears clear that post-judgment interest should
accrue on the equitable distribution award to Wife. The monetary award of
$595,263.20 was due to Wife as of June 5, 2014, per the Original Order filed
March 11, 2014. Following the issuance of the amended order on remand on May
17, 2018, the monetary award was reduced to $162,446.50, plus post-judgment
interest. Based on the rule set forth in Calhoun, and the correlation made in Casey
between equitable distribution monetary awards and other monetary judgments, we
find the family court correctly determined Wife is entitled to post-judgment
interest at the statutorily prescribed post-judgment rate on the final equitable
distribution figure of $162,446.50 and that this interest runs from June 5, 2014.5

Conclusion

For the foregoing reasons, the order of the family court is

AFFIRMED AS MODIFIED.

MCDONALD and HEWITT, JJ., and LOCKEMY, A.J., concur.

5
Interest on the final award of attorney fees and costs would run from September
10, 2014, the date of the family court's fee order prior to Husband's initial appeal.