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Unpublished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.