Ferguson v. Ferguson

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

Karen Wise Ferguson, Appellant,

v.

Bruce Linton Ferguson, Respondent.

Appellate Case No. 2009-143732

Appeal From Greenville County
Letitia H. Verdin, Family Court Judge

Unpublished Opinion No. 2013-UP-132
Heard October 31, 2012 – Filed April 3, 2013

AFFIRMED IN PART, REMANDED IN PART

J. Falkner Wilkes, of Greenville, for Appellant.

Kenneth C. Porter, Porter & Rosenfeld, of Greenville, for
Respondent.

PER CURIAM: Karen Wise Ferguson (Wife) appeals a divorce decree, arguing
(1) her alimony award was insufficient and (2) an asset purchased by Bruce
Ferguson (Husband) should have been included in the marital estate. We affirm in
part and remand in part.
1. The family court granted Wife alimony in the amount of $550 per month,
but further provided that alimony would end either two years from the date of the
signing of the divorce decree or upon Husband's retirement, whichever occurred
later. Wife argues she should have received an award of permanent periodic
alimony. We remand this matter to the family court for further findings of fact and
to reconsider whether Wife should have been awarded permanent alimony.

Although it was undisputed that Husband was approaching retirement age, the
family court also found (1) he had substantial marital assets in the six-figure range,
(2) the parties were married approximately twenty years, and (3) both were at fault
in the breakup of the marriage. Husband also had substantial nonmarital assets.
The family court found Wife was in relatively poor health, had substantial
recurring medical expenses, and was not likely to be able to work full-time. In
addition, although Wife had acquired some nonmarital assets through an
inheritance, these had been transmuted into marital property. The family court
should have considered all these circumstances in setting the alimony award. See
S.C. Code Ann. § 20-3-130(C) (Supp. 2012) (enumerating certain factors that "the
court must consider" and weigh appropriately in making an award of alimony or
separate maintenance and support) (emphasis added). We are unable to determine
from the appealed order how these and other factors prompted the family court to
allow Husband to cease paying alimony at some future time without petitioning the
family court. Moreover, in setting the alimony at $550 per month, the family court
did not explain how the amount itself would reflect the expectation that Husband
would retire. See Sharps v. Sharps, 342 S.C. 71, 78, 535 S.E.2d 913, 917 (2000)
("As a general rule, a court hearing an application for a change in alimony should
look not only to see if the substantial change was contemplated by the parties, but
most importantly whether the amount of alimony in the original decree reflects the
expectation of that future occurrence."). Notably, the family court does not
explain how Wife, who had no other ascertainable source of income, was to
provide for her needs after cessation of her alimony payments. Cf. Roof v. Steele,
396 S.C. 373, 387-88, 720 S.E.2d 910, 918-19 (Ct. App. 2011) (affirming the
finding that supported spouse demonstrated a change of circumstances warranting
an increase in her alimony and noting the modest amount of alimony awarded did
not consider her needs should she lose coverage under the supporting spouse's
employer's health insurance plan even though the parties acknowledged the
possibility of such a loss in their settlement agreement). Because we are unable to
justify the family court's award of alimony based on the record, we remand this
matter for further findings of fact. See Epperly v. Epperly, 312 S.C. 411, 415-16,
440 S.E.2d 884, 886-87 (1994) (reversing and remanding the issues of alimony and
equitable division because the family court failed to examine all the relevant
statutory factors); Grumbos v. Grumbos, 393 S.C. 33, 48, 710 S.E.2d 76, 84 (Ct.
App. 2011) (remanding the issue of attorney's fees to the family court because,
among other reasons, the order lacked specific findings to support the amount
awarded).

2. Wife further argues that some gold Husband purchased with an inheritance
and valued at $69,000 had been transmuted and should have been included in the
marital estate. We disagree.

The basis for Wife's argument that the gold had been transmuted appears to be
Husband's decision to place the gold in a safe deposit box that was in both parties'
names. She contends that the use of the jointly held safe deposit box was
tantamount to "the placing of the gold in joint names," which, she asserts, "is prima
facie proof of Husband's intent to make the gold marital in nature" and at least
shifts the burden to Husband to show that he did not intend to make the gold a
marital asset. For title to be an indication of transmutation, however, the property
allegedly transmuted must itself be titled jointly. See Peterkin v. Peterkin, 293
S.C. 311, 313, 360 S.E.2d 311, 312-13 (1987) (noting three circumstances under
which transmutation may occur, including that the property is titled jointly);
Sanders v. Sanders, 396 S.C. 410, 416, 722 S.E.2d 15, 17 (Ct. App. 2011) ("[T]he
act of depositing an inheritance into the parties' joint account does not
automatically render the inherited funds to be marital property.").

Wife also argues that Husband told her that his inheritance would fund their
retirement and, in reliance on this promise, she allowed her own inheritance to be
transmuted. We have not found any authority for the proposition that a statement
of future intent regarding an individually owned asset mandates a finding that the
asset has been transmuted. Here, the gold retained a separate identity, was never
commingled with marital assets, and was never actually "utilized" by the parties in
support of the marriage or in a manner evidencing the parties' intent to make it
marital property. See Smith v. Smith, 386 S.C. 251, 268, 687 S.E.2d 720, 729 (Ct.
App. 2009) (noting circumstances under which nonmarital property is transmuted
into marital property). Moreover, the only evidence Wife presented about
Husband's promise and her reliance on his assurance was her own testimony;
Husband never admitted that he agreed his inheritance would be used for the
parties' retirement. Based on these circumstances, we decline to disturb the family
court's refusal to include the Husband's gold in the marital estate. See Nestberg v.
Nestberg, 394 S.C. 618, 623, 716 S.E.2d 310, 313 (Ct. App. 2011) (stating that
although an appellate court has the authority to make its own findings of fact when
reviewing a family court order, it commonly defers to the family court's factual
findings of credibility because the family court "is in a superior position to assess
the demeanor of witnesses"); Pirri v. Pirri, 369 S.C. 258, 270, 631 S.E.2d 279, 286
(Ct. App. 2006) ("The burden is on the spouse claiming transmutation to produce
objective evidence that the parties considered the property to be marital during the
marriage.").

AFFIRMED IN PART, REMANDED IN PART.

HUFF, THOMAS, and GEATHERS, JJ., concur.