Pelletier v. Pelletier

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

Michele M. Pelletier, Respondent,

v.

Mark G. Pelletier, Appellant.

Appellate Case No. 2011-197826

Appeal From Richland County
Anne Gué Jones, Family Court Judge

Unpublished Opinion No. 2014-UP-030
Heard November 13, 2013 – Filed January 22, 2014

AFFIRMED IN PART, REVERSED IN PART, and
REMANDED

Howard S. Sheftman, of Finkel Law Firm, and Emma I.
Bryson, of Bryson Law Office, LLC, both of Columbia,
for Appellant.

Thomas M. Neal, III, of Law Offices of Thomas M. Neal,
III, and Yulee E. Harrelson, both of Columbia, for
Respondent.
PER CURIAM: This appeal arises from the family court's final order of divorce.
On appeal, Appellant Mark Pelletier (Husband) argues the family court erred by:
(1) transmuting Husband's nonmarital assets; (2) valuing Husband's dental office
building; (3) equitably dividing marital property; and (4) awarding attorney's fees.
We affirm in part, reverse in part, and remand.

1. We find the family court did not abuse its discretion in determining the dental
practice, dental office building, and lake lot were transmuted into marital property.
The evidence in the record supports a finding that during the marriage, the parties
intended to treat the disputed property as marital property. See Myers v. Myers,
391 S.C. 308, 313, 705 S.E.2d 86, 89 (Ct. App. 2011) ("In appeals from the family
court, this court may find facts in accordance with its own view of the
preponderance of the evidence."); S.C. Code Ann. § 20-3-630(A) (Supp. 2012)
(defining "marital property" as "all real and personal property which has been
acquired by the parties during the marriage and which is owned as of the date of
filing or commencement of marital litigation"); Fitzwater v. Fitzwater, 396 S.C.
361, 367, 721 S.E.2d 7, 10 (Ct. App. 2011) (providing nonmarital property "can be
. . . transmuted into marital property and become subject to equitable division if the
property: (1) becomes so commingled with marital property as to be untraceable;
(2) is utilized by the parties in support of the marriage; or (3) is titled jointly or
otherwise utilized in such a manner as to evidence an intent by the parties to make
the property marital property"); Johnson v. Johnson, 296 S.C. 289, 295, 372 S.E.2d
107, 110 (Ct. App. 1988) ("[T]ransmutation is a matter of intent to be gleaned from
the facts of each case."); id. at 295, 372 S.E.2d at 110-11 ("The spouse claiming
transmutation must produce objective evidence showing that, during the marriage,
the parties themselves regarded the property as the common property of the
marriage."); Pittman v. Pittman, Op. No. 27352 (S.C. Sup. Ct. filed Jan. 15, 2014)
(Shearouse Adv. Sh. No. 2 at 93) (holding the husband's land survey business was
transmuted, relying in part on the husband paying the wife a high salary and
contributing to the wife's retirement account with the expectation that it would
benefit both parties during their retirement).

2. As to whether the family court erred by valuing the dental office building at
$1,363,455 based upon the testimony of court-appointed appraiser Calhoun
Kennedy, we find no abuse of discretion because the family court's valuation of the
dental office building was within the range of values testified to at trial. See
Skipper v. Skipper, 290 S.C. 412, 414, 351 S.E.2d 153, 154 (1986) (holding absent
an agreement between the parties to the contrary, the family court should divide
property according to value); Pirri v. Pirri, 369 S.C. 258, 264, 631 S.E.2d 279, 283
(Ct. App. 2006) (noting when valuing marital assets, the "family court may accept
the valuation of one party over another, and the court's valuation of marital
property will be affirmed if it is within the range of evidence presented"); Fuller v.
Fuller, 370 S.C. 538, 546-47, 636 S.E.2d 636, 641 (Ct. App. 2006) (providing "the
family court has broad discretion in valuing marital property"); Smith v. Smith, 294
S.C. 194, 198, 363 S.E.2d 404, 407 (Ct. App. 1987) ("The weight that the trial
court affords the testimony of witnesses, including parties, is discretionary with the
trial court.").

3. As to whether the family court erred in equitably dividing marital property, we
find no abuse of discretion because the family court properly considered the
relevant statutory factors and the apportionment was both fair and equitable. See
Pruitt v. Pruitt, 389 S.C. 250, 269, 697 S.E.2d 702, 713 (Ct. App. 2010) ("The
apportionment of marital property is within the discretion of the family court and
will not be disturbed on appeal absent an abuse of discretion."); S.C. Code Ann. §
20-3-620(B) (Supp. 2012) (providing fifteen factors the family court is to consider
in apportioning the marital estate, but also affording the family court discretion to
give such weight to each factor as it finds appropriate); Doe v. Doe, 370 S.C. 206,
213-14, 634 S.E.2d 51, 55 (Ct. App. 2006) ("On appeal, this court looks to the
overall fairness of the apportionment, and it is irrelevant that this court might have
weighed specific factors differently than the family court."). Additionally, the
family court did not err by making findings concerning Husband's character,
conduct, and testimony at trial. The family court was entitled to make credibility
findings, and the findings are supported by the record. See Lewis v. Lewis, 392
S.C. 381, 392, 709 S.E.2d 650, 655 (2011) ("[W]hile retaining the authority to
make our own findings of fact, we recognize the superior position of the family
court judge in making credibility determinations." (footnote omitted)); Gandy v.
Gandy, 297 S.C. 411, 414, 377 S.E.2d 312, 313-14 (1989) ("Custody is based on a
determination of the character, fitness, attitude and inclinations on the part of each
parent."). Further, regarding whether the family court erred by requiring Husband
to make post-divorce mortgage payments to Wife, we find this issue is
unpreserved. Husband failed to raise any issues concerning the nature of the
interest-only loan or the disposition of the marital home mortgage payments to the
family court during trial or in either of his Rule 59(e), SCRCP, motions. See Buist
v. Buist, 399 S.C. 110, 124, 730 S.E.2d 879, 886 (Ct. App. 2012) (providing an
issue raised for the first time on appeal is unpreserved).

4. As to whether the family court erred by requiring Husband to secure the child
support award with a $500,000 life insurance policy naming Wife as the
beneficiary, we reverse and remand. Neither the family court's order nor its two
orders responding to Husband's Rule 59(e) motions provide special circumstances
as to why Husband is required to maintain a life insurance policy to secure child
support payments. Accordingly, we reverse the family court's order requiring
Husband to maintain a life insurance policy to secure the child support payments
and remand to make factual findings of any special circumstances requiring
security for the child support award. See Wooten v. Wooten, 364 S.C. 532, 553,
615 S.E.2d 98, 109 (2005) (finding the family court may order the payor spouse to
obtain life insurance as security for an alimony or child support obligation if the
supported spouse can demonstrate the existence of special circumstances with
reference to the need for the security and the payor spouse's ability to provide it);
id. ("If a need for security is found, the family court should next consider the
payor spouse's ability to secure the award with life insurance, i.e., the payor
spouse's age, health, income earning ability, accumulated assets, insurability, cost
of premiums, and insurance plans carried by the parties during the marriage."). If
the family court determines special circumstances exist to require a life insurance
policy to secure the child support award, the court should order Husband to
maintain a policy only in an amount proportionate to his child support obligation.
Additionally, if security for the child support award is warranted, the family court
should order Husband to name the children as the beneficiaries to the life insurance
policy. See Harlan v. Harlan, 300 S.C. 537, 540, 389 S.E.2d 165, 167 (Ct. App.
1990) ("The family court may require a supporting spouse to maintain a life
insurance policy naming the child as beneficiary to insure the continued support of
the child." (emphasis added)).

5. Because we reverse and remand on the life insurance issue, we also remand for
the family court to reconsider attorney's fees. See Crossland v. Crossland, 397
S.C. 406, 418, 725 S.E.2d 509, 516 (Ct. App. 2012) (reversing and remanding for
the family court to reconsider the issue of attorney's fees when substantive results
achieved by counsel were reversed on appeal).

AFFIRMED IN PART, REVERSED IN PART, and REMANDED.

FEW, C.J., and PIEPER and KONDUROS, JJ., concur.