Flanary v. Flanary

PER CURIAM: In this domestic action, Edward Flanary appeals the family
court’s equitable division of marital property

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

Edward R. Flanary, Jr., Appellant,

v.

Carolyn Virginia Flanary, Respondent.

Appeal From Greenville County

 Robert N. Jenkins, Sr., Family Court
Judge

Unpublished Opinion No. 2004-UP-613

Submitted November 1, 2004 – Filed December
7, 2004

AFFIRMED

O. W. Bannister, Jr., of Greenville, for Appellant.

Vanessa Lynn Hartman, of Greenville, for Respondent.

SHORT, J.:  In this domestic action, Edward Flanary appeals the family
court’s equitable division of marital property, claiming the family court erred
in its calculation of the division of the estate.  We affirm. [1]

FACTS

Edward Flanary (Husband) married Carolyn Flanary (Wife) in 1980. Both Husband
and Wife had children from a previous marriage. Initially, Husband worked
in sales and Wife stayed at home as a homemaker.  In 1981, the parties opened
a retail fabric business, eventually selling their interest in the company
in 1987.  In 1990, Husband and Wife started American Foam and Fabric (American
Foam) to sell replacement headliners for automobiles.  At the time of trial,
the business had grown from a few part-time employees to ten full-time employees. 
Husband carried most of the responsibility for running and managing the business.
Wife assisted with the business, receiving a small salary for secretarial
duties she performed during the day while the children attended school.  Wife
worked regularly at American Foam until 1997 when she quit to take care of
her father who had been diagnosed with cancer.

Husband and Wife separated in 1998 and after several failed
attempts to reconcile. Wife filed for divorce in June 2000 based on a one-year
separation; however, the case was administratively dismissed for lack of trial
or other disposition within two hundred and seventy days.  In January 2002,
Husband filed for divorce, which the court granted in September 2002. A hearing
was held to determine issues related to alimony, equitable division, and attorneys’
fees. The family court awarded Wife permanent periodic alimony, divided the
marital assets, and denied attorneys’ fees to either party. Husband filed
a motion for reconsideration arguing the court erred in its equitable division,
which was denied.  This appeal follows.

LAW/ANALYSIS

Husband
argues the family court abused its discretion by miscalculating the marital
estate and failing to grant Husband a greater portion of the estate.  We disagree.

Section 20-7-472 of the South Carolina Code lists fifteen factors for the
court to consider in making an equitable apportionment of marital estates
and vests the discretion to decide what weight should be assigned to the various
factors in the family court. S.C. Code Ann. § 20-7-472 (Supp. 2003).  “On
review, we look to the fairness of the overall apportionment; if the end result
is equitable, it is irrelevant that we might have weighed specific factors
differently than the family court.”   Jenkins v. Jenkins, 345 S.C.
88, 100, 545 S.E.2d 531, 537 (Ct. App. 2001).  “This court will affirm the
family court judge if it can be determined that the judge addressed the factors
under section 20-7-472 sufficiently for us to conclude he was cognizant of
the statutory factors.”  Id.   

Husband contends the family court intended to give each party an equal portion
of the estate and the court omitted certain debt in its calculations; however,
the court’s order refutes this claim.  The order approximates an equal apportionment
of assets, yet Husband received a greater debt ratio. While Husband does carry
a greater load of the marital debt, he also receives income-producing assets
to assist in extinguishing the debt. All the debt calculations might not have
been clearly delineated in the court’s order; however, the entirety of Husband’s
debt appears plainly in the order. Furthermore, the family court addressed
Husband’s argument in its order denying the motion for reconsideration and
reiterated the reasons for dividing the estate in such a manner.  The court
listed several factors to compensate for Husband’s higher debt ratio, including
awarding American Foam to Husband, imputing income to Wife, assigning a lower
than actual income to Husband, and allowing Husband an annual credit.

The law of equitable distribution is premised on providing the family court
the flexibility to view each case based on individual circumstances peculiar
to the parties involved and to fashion division of parties’ assets in a manner
that is uniquely fair to the parties concerned.  Thomas v. Thomas,
353 S.C. 523, 529, 579 S.E.2d 310, 313 (2003).  Equitable division is not
necessarily equal division.  Accordingly, the family court did not abuse its
discretion when determining equitable division of the marital estate.

AFFIRMED.               

ANDERSON, J., concurs.  STILWELL, J., dissents in a separate
opinion.

STILWELL, J. (dissenting):  I respectfully dissent.  In my opinion,
the net result of the division of marital assets and the assignment of marital
debt is inequitable distribution, not equitable distribution.

The total amount of gross assets, according to the calculations relied upon
by the family court, is $1,224,521.  The total amount of marital debts is
$937,777.75, resulting in net equity to be equitably apportioned of $286,743.25. 
Even though Husband received gross assets valued at $961,725, he was assigned
total marital debts of $880,026, leaving him with a net equity pursuant to
equitable distribution of $81,699 as compared to Wife’s net equitable distribution
valued at $205,044.  I am convinced this is not the result intended by the
court.  The wording of the order itself clearly indicates the court wanted
to make “an approximate equal division of the properties,” and the requirement
in the order that the Husband pay down the first mortgage on the marital home
was designed to “equalize the division.” 

This conclusion is buttressed by the family court’s final analysis of the
equitable distribution award when it summarized the results by stating that
Husband’s “net marital estate,” after calculating the debt assigned to Husband,
“will be $222,632.39” and compared that with “Wife’s net estate . . . [of]
$215,501.28.”  This leads to the inescapable conclusion that there has been
a mathematical miscalculation, since the sum of these two figures greatly
exceeds the total value of the net estate.  For this reason, I believe the
result of the family court’s equitable distribution award was not as intended.

Even if the family court intended this result, I would favor reversing because,
in my opinion, this division, which apportions approximately 71% of the net
marital estate to Wife where there is no marital fault involved, no children
were born of the union, and Wife is awarded $2,000 per month in alimony, is
patently unfair and inequitable.

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