Brigette Hemming v. Jeffrey Hemming

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

Brigette Hemming, Respondent,

v.

Jeffrey Hemming, Appellant.

Appellate Case No. 2020-001238

Appeal From Lexington County
Angela R. Taylor, Family Court Judge

Unpublished Opinion No. 2023-UP-283
Submitted March 1, 2023 – Filed August 2, 2023

AFFIRMED

Jeffrey Hemming, of Lexington, pro se.

John Calvin Bradley, Jr. and William Benito Fortino,
both of Moore Bradley Myers Law Firm, of West
Columbia, for Respondent.
PER CURIAM: In this domestic matter, Jeffrey Hemming (Husband), pro se, 1
argues the family court erred in (1) apportioning the marital estate and (2) failing
to award him attorney's fees and costs. We affirm. 2

1. We find the family court did not err in apportioning the marital estate. "The
doctrine of equitable distribution is based on a recognition that marriage is, among
other things, an economic partnership." Johnson v. Johnson, 296 S.C. 289, 293,
372 S.E.2d 107, 109 (Ct. App. 1988). Subsection 20-3-620(B) of the South
Carolina Code (2014) enumerates fifteen factors for the family court to consider
when equitably apportioning the marital estate, including the duration of the
marriage, marital misconduct of the parties, the contributions made to the marriage
by each spouse, retirement benefits, and any tax consequences. "These criteria are
intended to guide the family court in exercising its discretion over apportionment
of marital property." Bojilov v. Bojilov, 425 S.C. 161, 183, 819 S.E.2d 791, 803
(Ct. App. 2018). "How the individual factors are weighed depends on the facts of
each case." Johnson, 296 S.C. at 299, 372 S.E.2d at 113. "The statute vests in the
[family court], not the appellate court, the discretion to decide what weight should
be assigned to the various factors." Id. at 299–300, 372 S.E.2d at 113. "The
ultimate goal of apportionment is to divide the marital estate, as a whole, in a
manner that fairly reflects each spouse's contribution to the economic partnership
and also the effect on each of the parties of ending that partnership." King v. King,
384 S.C. 134, 143, 681 S.E.2d 609, 614 (Ct. App. 2009).

"The appellate court looks to the overall fairness of the apportionment." Id. "If the
end result is equitable, the fact that the appellate court would have arrived at a
different apportionment is irrelevant." Id. "In this review, our focus is on whether

1
Husband was previously represented by counsel prior to this appeal.
2
On appeal from the family court, this court reviews factual and legal issues de
novo, with the exceptions of evidentiary and procedural rulings. Stone v.
Thompson, 428 S.C. 79, 91–92, 833 S.E.2d 266, 272 (2019); see also Stoney v.
Stoney, 422 S.C. 593, 596, 813 S.E.2d 486, 487 (2018). Therefore, this court may
find facts in accordance with its own view of the preponderance of the evidence.
Posner v. Posner, 383 S.C. 26, 31, 677 S.E.2d 616, 619 (Ct. App. 2009).
However, this broad scope of review does not prevent this court from recognizing
the family court's superior position to evaluate witness credibility and assign
comparative weight to testimony. Lewis v. Lewis, 392 S.C. 381, 392, 709 S.E.2d
650, 655 (2011). Moreover, the appellant maintains the burden of convincing the
appellate court that the family court's findings were made in error or were
unsubstantiated by the evidence. Posner, 383 S.C. at 31, 677 S.E.2d at 619.
the family court addressed the statutory factors governing apportionment with
sufficiency for us to conclude that the court was cognizant of these factors."
Pirayesh v. Pirayesh, 359 S.C. 284, 300, 596 S.E.2d 505, 514 (Ct. App. 2004).

In its order, the family court noted that equitable distribution was the primary issue
contested by the parties, stating "a significant portion of the testimony and
evidence introduced at trial was directed at the marital estate and the inclusion or
exclusion of various asset values, debts and potential liabilities." Although neither
party presented any expert testimony, each "introduced very detailed exhibits
itemizing their positions." After carefully considering the statutory factors,
testimony, and exhibits, the family court held an equal division of the marital
assets and debts, excluding Husband's tax liability, was equitable. In its order, the
family court clearly considered each factor and detailed its findings with tables
delineating the division for all assets and debts of the marital estate.

Husband makes various arguments challenging the family court's apportionment of
the marital estate, including the allocation of marital debts, division of the marital
residence, and incurred tax liability. We address each argument in turn.

Tax Liability

We find the family court did not err in allocating any incurred tax liability from the
2017 Fidelity IRA withdrawals to Husband. During the hearing, Wife testified she
was not aware Husband had made the withdrawals until she received discovery in
February 2018. Husband corroborated this testimony and admitted Wife did not
have knowledge of those particular withdrawals. Husband also failed to present
evidence showing the liquidated retirement funds benefited the marriage. Thus, we
agree with the family court that Husband's withdrawals substantially diminished
the marital estate prior to filing and Wife received no benefit from those
withdrawals. Accordingly, it was equitable to allocate any incurred tax liability
from the 2017 withdrawals to Husband. See Pirayesh, 359 S.C. at 300, 596 S.E.2d
at 514 ("Marital debt should be divided in accord with the same principles used in
the division of marital property and must be factored into the totality of equitable
apportionment.").

Marital Debts

In reviewing the record, we see no reason to disturb the family court's allocation of
the marital debts. The evidence shows both spouses had a habit of accruing
substantial debt to fund their lifestyle. Further, the family court's order clearly
conveys its consideration of the statutory factors in making its allocation. Thus,
we affirm the family court on this issue. See King, 384 S.C. at 143, 681 S.E.2d at
614 ("The ultimate goal of apportionment is to divide the marital estate, as a
whole, in a manner that fairly reflects each spouse's contribution to the economic
partnership and also the effect on each of the parties of ending that partnership.");
id. ("The appellate court looks to the overall fairness of the apportionment.");
Pirayesh, 359 S.C. at 300, 596 S.E.2d at 514 ("In this review, our focus is on
whether the family court addressed the statutory factors governing apportionment
with sufficiency for us to conclude that the court was cognizant of these factors.").

Marital Residence

We also affirm the family court's allocation of the marital residence. As evidenced
by the detailed order, the family court weighed all the relevant factors when
distributing the marital estate as a whole. We find Husband has failed to show that
an equal division of the marital residence was not equitable or that the family court
failed to weigh the required factors. See Johnson, 296 S.C. at 293, 372 S.E.2d at
109 ("The doctrine of equitable distribution is based on a recognition that marriage
is, among other things, an economic partnership."); § 20-3-620(B) (enumerating
fifteen factors to be considered by the family court in making equitable distribution
determinations); Johnson, 296 S.C. at 299–300, 372 S.E.2d at 113 ("The statute
vests in the [family court], not the appellate court, the discretion to decide what
weight should be assigned to the various factors."); King, 384 S.C. at 143, 681
S.E.2d at 614 ("The appellate court looks to the overall fairness of the
apportionment."); id. ("If the end result is equitable, the fact that the appellate court
would have arrived at a different apportionment is irrelevant.").

2. Because we affirm the equitable distribution of the family court, we also affirm
the holdings as to attorney's fees and costs. See Weller v. Weller, 434 S.C. 530,
543, 863 S.E.2d 835, 841–42 (Ct. App. 2021) (affirming the family court's award
of attorney's fees when affirming the other findings challenged on appeal).
Further, we find the family court appropriately considered the relevant factors, and
its denial of attorney's fees and costs to Husband comports with the rest of its
findings in the case.

AFFIRMED. 3

WILLIAMS, C.J., and GEATHERS and VERDIN, JJ., concur.

3
We decide this case without oral argument pursuant to Rule 215, SCACR.