Sandra Jo Martin v. William Young Martin

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

Sandra Jo
Martin, Respondent,

v.

William Young
Martin, Appellant.

Appeal From Greenville County

R. Kinard Johnson, Jr., Family Court
Judge

Unpublished Opinion No. 2010-UP-028

Heard December 10, 2009 – Filed January
25, 2010

AFFIRMED

David Alan Wilson, of Greenville, for
Appellant. 

James Sarratt and Travis Verne Olmert, both
of Greenville, for Respondent.

PER CURIAM: This appeal arises after the family
court granted Sandra Jo Martin (Wife) a
divorce from William Young Martin (Husband) on grounds of one year's continuous
separation.  Husband appeals
and argues the family court erred in (1)
granting a divorce on the grounds of one year's continuous separation to Wife
but not to Husband; (2) failing to include certain assets in its equitable
apportionment of marital property; (3) failing to consider all fifteen
statutory factors when dividing marital property; (4) awarding Wife 81% of the
marital property; (5) awarding each party one-half of the other party's
retirement without considering the tax consequences of such an award; and (6)
awarding Wife attorney's fees and costs.  We affirm.

1.  We decline to rule on
whether the family court erred in (1) granting Wife but not Husband a divorce
on grounds of one year's continuous separation; (2) failing to include certain
assets in its equitable apportionment of marital property; (3) failing to
consider all fifteen statutory factors when dividing marital property; (4)
awarding Wife 81% of the marital property; and (5) awarding each party one-half
of the other party's retirement without considering the tax consequences of
such an award.  We find these issues are not preserved for our review.  King
v. King, 384 S.C. 134, 142, 681 S.E.2d 609, 614 (Ct. App. 2009) (requiring
an issue be raised to and ruled upon by the trial court in order to be
preserved for appellate review); see also In re Timmerman, 331
S.C. 455, 460, 502 S.E.2d 920, 922 (Ct. App. 1998) ("When a party receives
an order that grants certain relief not previously contemplated or presented to
the trial court, the aggrieved party must move, pursuant to Rule 59(e), SCRCP,
to alter or amend the judgment in order to preserve the issue for
appeal.").

2.  We find the family
court's classification of Wife's BMW as non-marital property incorrect because
it was personal property acquired during the marriage.  See S.C. Code
Ann § 20-3-630(A) (Supp. 2008) (defining "marital property" as real
and personal property acquired by the parties during the marriage).  However, we
find the family court did not err by using its discretion to award Wife the
BMW.  See Simpson v. Simpson, 377 S.C. 527, 533, 660 S.E.2d 278,
282 (2008) ("The division of marital property is within the sound
discretion of the family court, and on appeal, it will not be disturbed absent
an abuse of discretion."); Nasser-Moghaddassi v. Moghaddassi, 364
S.C. 182, 197, 612 S.E.2d 707, 715 (Ct. App. 2005) (citing Morris v. Morris,
335 S.C. 525, 531, 517 S.E.2d 720, 723 (Ct. App. 1999)) ("Upon dissolution
of the marriage, marital property should be divided and distributed in a manner
which fairly reflects each spouse's contribution to its acquisition, regardless
of who holds legal title."). 

3.  We affirm the family
court's decision to award attorney's fees.  Doe v. Doe, 319 S.C. 151, 157,
459 S.E.2d 892, 896 (Ct. App. 1995) (stating an award of attorney’s fees rests
within the sound discretion of the trial court and should not be disturbed on
appeal absent an abuse of discretion).  A family court should first consider the following factors as set forth in E.D.M. v. T.A.M., in
deciding whether to award attorney's fees and costs:  (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 fee on each party's standard of living.  307 S.C. 471, 476-77, 415
S.E.2d 812, 816 (1992); see also Glasscock v. Glasscock, 304 S.C.
158, 161 n.1, 403 S.E.2d 313, 315 n.1 (1991).  We find the family court
properly considered the factors set forth in E.D.M.  After deciding to award
attorney's fees, a family court should then consider the following factors as set
forth in Glasscock in deciding how much to award in attorney's
fees and costs:  (1) the nature, extent, and difficulty of the case; (2) the
time necessarily devoted to the case; (3) professional standing of counsel; (4)
contingency of compensation; (5) beneficial results obtained; and (6) customary
legal fees for similar services.  304 S.C. at 161, 403 S.E.2d at 315; see
also Feldman v. Feldman, 380 S.C. 538, 546-47, 670 S.E.2d 669, 673 (Ct.
App. 2008).  Although the family court did not delineate its
consideration of these six factors, we find by our own preponderance of the
evidence that the amount of attorney's fees awarded is reasonable under Glasscock.  See Henggeler v. Hanson, 333 S.C. 598, 601-02,
510 S.E.2d 722, 724 (Ct. App. 1998) ("On appeal from the family
court, this court has jurisdiction to correct errors of law and find facts in
accordance with its own view of the preponderance of the evidence.").

AFFIRMED.

WILLIAMS, PIEPER, and
LOCKEMY, JJ., concur.