Lowe v. Lowe

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

Karen Marie Lowe,       
Respondent,

v.

Robert Donald Lowe,       
Appellant.

Appeal From Greenville County

Timothy L. Brown, Family Court Judge

Unpublished Opinion No.    2005-UP-002

Heard November 16, 2004 – Filed January
7, 2005

AFFIRMED

John B. Duggan, of Greer, for Appellant.

William James Barnes, of Greenville, for Respondent.

PER CURIAM:  In this appeal from a divorce
action, Robert Donald Lowe (Husband) appeals the division of marital property,
the amount of alimony awarded to him, and the denial of his request for attorney’s
fees.  We affirm pursuant to Rule 220, SCACR, and the following authorities:

1.  The family court did not err in denying Husband
a special equity interest in the marital home: Greene v. Greene, 351
S.C. 329, 338, 569 S.E.2d 393, 398 (Ct. App. 2002) (stating that property acquired
by either party prior to the marriage can be transmuted into marital property
if, among other things, “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.”); Jenkins v. Jenkins, 345 S.C. 88, 100, 545 S.E.2d
531, 537 (Ct. App. 2001) (explaining that the appellate court looks at the fairness
of the overall equitable distribution, and if the end result is equitable, it
will affirm).

2.  The issues of whether the family court erred (1)
in failing to “include, value, and equitably divide marital personal property
and debt of the parties” and (2) “by holding that the passive increase in the
value of [Wife’s] retirement account after this action was commenced was a non-marital
asset” are not preserved for review: Wilder Corp. v. Wilke, 330 S.C.
71, 76, 497 S.E.2d 731, 733 (1998) (“It is axiomatic that an issue cannot be
raised for the first time on appeal, but must have been raised to and ruled
upon by the trial judge to be preserved for appellate review.”).

3.  The family court did not err by including Husband’s
retirement account in the marital estate: Hickum v. Hickum, 320 S.C.
97, 100, 463 S.E.2d 321, 322-323 (Ct. App. 1995) (reaffirming the proposition
that retirement plans are includable as marital property subject to division).

4.  The family court did not commit reversible
error by awarding Wife fifty percent of the marital estate:  S.C. Code Ann.
§ 20-7-472 (vesting the family court with the discretion to decide which weight
should be assigned to the various factors of equitable apportionment); Jenkins,
345 S.C. at 100, 545 S.E.2d at 537 (“This court will affirm the family court
judge if it can be determine that the judge addressed the factors under section
20-7-472 sufficiently for us to conclude he was cognizant of the statutory factors.”).

5.  The family court did not err in determining
the amount of alimony awarded to Husband: S.C. Code Ann. § 20-3-130 (Supp. 2003)
(vesting the family court with the discretion to decide which weight should
be assigned to the various factors that should be considered when awarding alimony);
Allen v. Allen, 347 S.C. 177, 186, 554 S.E.2d 421, 425 (Ct. App. 2001)
(“Our inquiry on appeal is not whether the family court gave the same weight
to particular factors [used to determine alimony] as this court would have;
rather, our inquiry extends only to whether the family court abused its considerable
discretion in assigning weight to the applicable factors.”); Bryson v. Bryson,
347 S.C. 221, 224, 553 S.E.2d 493, 495 (Ct. App. 2001) (“Questions concerning
alimony rest with the sound discretion of the family court.  An abuse of discretion
occurs when the decision is controlled by some error of law or is based on findings
of fact that are without evidentiary support.”).

6.  The family court did not err when
it denied Husband’s request for attorney’s fees: Donahue v. Donahue,
299 S.C. 353, 365, 384 S.E.2d 741, 748 (1989) (“An award of attorneys’ fees
and costs is a discretionary matter not to be overturned absent abuse by the
trial court.”); Griffith v. Griffith, 332 S.C. 630, 645, 506 S.E.2d 526,
534 (Ct. App. 1998) (explaining that, when determining whether to award attorney’s
fees, the family court should consider (1) each party’s ability to pay his or
her own fee, (2) the beneficial results obtained by the attorney, (3) the parties’
respective financial conditions, and (4) the effect of the attorney’s fee on
each party’s standard of living).  See Messer v. Messer, 359 S.C.
614, 633, 598 S.E.2d 310, 320 (Ct. App. 2004) (refusing to find an abuse of
discretion as to the award of attorney’s fees when the family court analyzed
each of the factors, detailed its findings in its final order, and those findings
were supported by affidavits).

AFFIRMED.

HEARN, C.J., GOOLSBY and WILLIAMS,
JJ., concur.