Fried v. Fried

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

Ann Fried,       
Respondent,

v.

Dennis A. Fried,       
Appellant.

Appeal From Charleston County

Judy C. Bridges, Family Court Judge

Unpublished Opinion No. 2004-UP-049

Submitted November 19, 2003 – Filed
January 22, 2004

AFFIRMED

Donald Jay Budman, of Charleston, for Appellant

Frank M. Cisa, of Mt. Pleasant, for Respondent.

PER CURIAM: Husband appeals from a family court’s trial order requiring
him to pay the full sum stipulated in the divorce settlement to Wife, in spite
of the decrease in the value of the accounts due to market fluctuations. We
affirm.

FACTS

Ann and Dennis Fried were divorced in 2002. The
parties reached, and the family judge accepted, a settlement concerning the
division of the marital estate. In the divorce order dated March 13, 2002, Husband
was ordered to give to Wife “by QDRO, to be prepared within thirty (30) days
from the date of [the] order, an amount equal to One Hundred Thirty Thousand
($130,000.00) Dollars, payable from all of the funds contained in a SEP-IRA
held by Morgan-Stanley Dean Witter and the balance from annuities held in a
‘Putnam Fund’ at USB Paine Webber, both presently titled in [Husband’s] name.”

By a first QDRO, the sum of $95,000.00 from the
Morgan Stanley account was assigned to Wife on April 7, 2002. A second QDRO
assigned $35,000.00 to Wife from the Putnam account. The Morgan Stanley account
subsequently decreased to $77,816.00 due to market fluctuations. Husband was
willing to transfer those funds to Wife, but refused to add the lost $17,184.00
from the Putnam account to makeup the difference. Both parties moved for a Rule
to Show Cause. The judge found that the divorce decree clearly mandated that
Husband pay Wife $130,000.00, market fluctuations notwithstanding. The judge
ordered Husband to pay $52,184,00 from the Putnam account. The judge also held
Husband in contempt of court and granted attorney’s fees to Wife.

ISSUES

(1)   Did the family court err in finding
that Husband should bear the risk of devaluating securities transferred to Wife pursuant
to the divorce decree?

(2) Did the family court err in awarding
attorney’s fees to Wife?

ANALYSIS  

This Court can determine facts in accordance with
its own view of the preponderance of the evidence when reviewing matters from
the family court. Wooten v. Wooten, 354 S.C. 242, 248, 580 S.E.2d 765,
768 (Ct. App. 2003). Husband argues that Wife should bear the burden of the
market fluctuations because she acquired equitable title to the accounts upon
the filing of the divorce decree. For that argument, Husband cites Calhoun
v. Calhoun, 331 S.C. 157, 501 S.E.2d 735 (Ct. App. 1998). However, Calhoun
is easily distinguishable from the present case. There, the wife had been awarded
the actual lots at issue, But here, the divorce decree did not assign
the two accounts to Wife. Instead, the divorce decree ordered that Wife be paid
the sum certain of $130,000.00 from “all the funds” in the two accounts. The
two subsequent QDRO’s were used simply “[i]n furtherance of the agreement to
the transfer [of] the $130,000.00,” only “to effectuate the agreement of the
parties as contained in the Divorce Decree.” That more money had to come from
the Putnam account and less from the Stanley Morgan account is of no import.

Husband also appeals the family court’s decision
to award attorney’s fees to Wife. “An award of attorney's fees will not be overturned
absent an abuse of discretion.” Wooten, 354 S.C. at 254, 580 S.E.2d at
771. “In deciding whether to award attorney's fees, the family court
should consider the parties' ability to pay their own fee, the beneficial results
obtained by counsel, the respective financial conditions of the parties, and
the effect of the fee on each party's standard of living.” Id. Here,
the family court found that Wife had not received “any significant assets incident
to the parties’ divorce” and was unemployed at the time of the hearing. Based
on these and other facts, the court awarded her attorney’s fees. We cannot say
that the family court abused its discretion.

AFFIRMED.

HUFF, STILWELL and BEATTY, JJ., concur.