Linder v. Linder

THIS OPINION
HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT
IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

Angela C. Linder,       
Respondent,

v.

Harris M. Linder,       
Appellant.

Appeal From Aiken County

C. David Sawyer, Jr., Family Court
Judge

Unpublished Opinion No. 2004-UP-239

Submitted March 8, 2004 – Filed April
12, 2004

AFFIRMED IN PART, REVERSED IN PART,

AND REMANDED

Gregory P. Harlow, of Aiken, for Appellant.

Sylvia W. Westerdahl, of Aiken, for Respondent.

PER CURIAM:  This is a divorce action between
Harris M. Linder and Angela C. Linder.  Husband appeals the family court’s order,
alleging the court erred in refusing to apportion personal property, in requiring
Husband to pay a portion of Wife’s non-marital debt, in considering Wife’s motion
to alter or amend, and in failing to include Wife’s pension in the apportionment
of marital property.  We affirm in part, reverse in part, and remand.
[1]

BACKGROUND

Husband and Wife married in 1986 and separated
in 2001.  In its final order, filed on March 18, 2002, the family court granted
a divorce on the ground of one-year continuous separation and awarded Wife the
marital home and Husband a motorcycle.  The court also found $16,400 in unsecured
marital debt and apportioned the debt according to income, ordering Husband
to pay 39% of the marital debt and Wife to pay 61%.  However, the family court
refused to apportion the personal property and referred the parties to magistrate’s
court to divide the property. 

Husband timely filed a motion to alter
or amend the judgment.  He requested the court divide the personal property,
exclude from the equitable distribution a portion of the debt he believed Wife
incurred post-separation, and include Wife’s pension in the property division. 
Wife filed a motion to alter or amend on April 8, 2002.  Husband moved to dismiss
the motion, alleging it was not timely.  The court allowed Wife to proceed with
her motion.  The court denied Husband’s motion and granted Wife’s motion, declaring,
among other things, that Husband had no interest in Wife’s pension plan.  Husband
appeals. 

STANDARD OF REVIEW

In appeals from the family court, this court has
the authority to find facts in accordance with our own view of the preponderance
of the evidence.  Greene v. Greene, 351 S.C. 329, 335, 569 S.E.2d 393,
397 (Ct. App. 2002).  This broad scope of review does not require us to disregard
the findings of the family court.  Id.  Neither are we required to ignore
the fact that the family court judge, who saw and heard the witnesses, was in
a better position to evaluate their credibility and assign comparative weight
to their testimony.  Id.

LAW/ANALYSIS

I.                 
Family Court’s Refusal to Apportion Personal Property

At the final hearing, Husband and Wife presented
the court with lists of personal property.  Husband’s list provided a value
for virtually every item of personal property.  Wife’s list, however, did not
contain values for most items.  Both Husband and Wife argue the family court
erred by refusing to apportion personal property and, instead referring the
parties to magistrate’s court.  We agree and remand for resolution of  this
issue.

The family court has exclusive jurisdiction
over a divorce and the settlement of all legal and equitable rights of the parties
in and to the real and personal property of the marriage.  S.C. Code Ann. §
20-7-420(2) (Supp. 2003).  Because the family court has exclusive jurisdiction
over this issue, the magistrate’s court is without jurisdiction and, therefore,
the family court’s order left the parties without a remedy for dividing the
personal property.  The family court clearly erred when it found it had “no
way” to value and divide the personal property and referred the parties to magistrate’s
court for a division of the property.  Based on the above, we remand this issue
to the family court for further proceedings to apportion the personal property.

II.              
Wife’s Post-Separation Debt

Wife obtained a loan from Beneficial Finance in
March 1999, nearly two years prior to the parties’ separation.  Wife testified
she incurred an additional $5,300 on the Beneficial loan after the parties separated,
increasing the total due on that debt to $13,349.  Husband claims the family
court required him to pay 39% of this post-separation debt.  We disagree and
find the family court judge ordered Husband to pay 39% of the marital
debt, only. 

The family court found the total marital
debt to be $16,400.  Although the record does not show the exact calculation
the court used to arrive at this figure, based on the total amount he found
it appears the court determined the marital debt on the Beneficial loan to be
$8,000, which is consistent with Wife’s records and testimony ($13,349-$5,300=$8,049). 
When this figure is added to the sum Husband claimed was marital unsecured debt
on various charge cards—$8,400—the marital debt totals $16,400.  Based on the
records and testimony before us, we agree this is a correct total of the marital
debt.  In apportioning this debt, the court ordered Husband to pay $3,700 to
Lowe’s, $1,700 to Sears, and $996 to Visa, for a total of $6,396, which is 39%
of the $16,400 marital debt.  We do not discern an abuse of discretion by the
family court judge in requiring Husband to pay the amount ordered. 

III.           Wife’s Rule
59(e), SCRCP Motion

Husband claims the family court erred in allowing
Wife’s Rule 59(e), SCRCP motion because it was not timely filed.  We disagree.

Although the family court believed Wife’s
motion was not timely filed, he determined the record failed to sustain such
a finding because it did not show when the order was served on Wife’s attorney. 
Therefore, the court heard Wife’s motion. 

Being mindful of our standard of review
in this case, we do not disregard the findings of the family court on this issue. 
Greene, 351 S.C. at 335, 569 S.E.2d at 397.  We find no error in allowing
Wife’s motion.  This was a factual determination the court was free to make.

IV.            Wife’s
Pension

Husband argues the family court erred in failing
to include Wife’s pension in the apportionment.  We agree.

“A spouse who wishes to claim that certain property
is not a part of the marital estate has the burden of presenting witnesses or
evidence to establish its non-marital character and also to give the trial court
an opportunity to decide the issue.”  Hodge v. Hodge, 305 S.C. 521, 526,
409 S.E.2d 436, 439-40 (Ct. App. 1991). 

Here, Wife never attempted to prove her pension
was non-marital.  To the contrary, counsel for the parties discussed equitable
division of the pension when the court asked about issues on which the parties
agreed.  When Wife’s counsel noted Wife’s pension had not yet vested, the court
stated the pension could be divided by a Qualified Domestic Relations Order. 
Furthermore, during her testimony Wife said she believed Husband would be entitled
to a portion of her pension, and when the court mentioned her testimony later
during the hearing, Wife’s counsel accepted the court’s recollection.  Because
Wife never attempted to show her pension was non-marital, the court erred in
ruling the pension was non-marital.  We find Wife’s pension should be divided
by QDRO in the same proportions the judge indicated for equitable distribution. 
Therefore, we reverse and remand to the family court for the preparation and
execution of a QDRO dividing the pension in the following proportions:  39%
to Husband and 61% to Wife.

CONCLUSION

We find the family court erred in refusing to
divide the personal property and in excluding Wife’s pension from the apportionment. 
However, we find the court did not err in determining the amount Husband must
pay toward the marital debt or in allowing Wife’s Rule 59(e) motion.  Accordingly,
the decision of the family court is

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

HUFF and STILWELL, JJ., and CURETON, A.J., concur.

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