Brown v. Brown

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

Louis A. Brown, Respondent,

v.

Elsie Francis Brown
and Sharon A. Smith, Defendants,

Of Whom Elsie
Francis Brown is the Appellant.

Appeal From Anderson County

Joseph W. McGowan, III, Family Court
Judge

Unpublished Opinion No. 2011-UP-367  

Heard January 11, 2011 – Filed July 12,
2011

AFFIRMED IN PART AND REVERSED IN PART

William Norman Epps, III, of Anderson, for
Appellant.

Druanne Dykes White, T. Harper Collins,
and Sarah Ganss Drawdy, of Anderson, for
Respondent.

PER CURIAM: Elsie Francis Brown (Wife) appeals the order of the family
court holding pasture land (Pasture Property) purchased by Louis A. Brown (Husband)
prior to the marriage had not been transmuted into marital property and Wife
did not have a special equity in the Pasture Property.  Wife also argues the
family court erred in failing to order the return to her of certain items of
personal property.  We affirm as to the Pasture Property and reverse as to the
personal property. 

FACTUAL/PROCEDURAL HISTORY

The parties were married on
November 16, 1982.  They separated on December 28, 2006.  At the time of the
separation, Wife was 80 years old and Husband was 87.[1] 
Wife has four living children, including Defendant Sharon Smith, from a
previous marriage.  Husband also has four children from a previous marriage. 
They had no children together. 

Husband retired from
Wellington Mills in 1984.  He had purchased the 122-acre Pasture Property in
1947 for $3,000.  He kept cattle on the Pasture Property until 1998, when he
sold the cattle to his son Robert.  Wife worked for Bi-Lo until she had to
retire due to health reasons in 2007.  During the marriage, the parties maintained
separate bank accounts.  One of Wife's accounts was a joint account with
Smith.  Wife paid for her car, insurance, her own medical expenses, and some
groceries with her account.  Husband paid the taxes and insurance on the house
and Pasture Property, phone, utilities, his medical expenses, and most of the
groceries from his account.  While they were married, the parties lived in the
house Husband inherited in 1978.  Wife contributed to numerous improvements
made to the house. 

Wife decided in early
December to separate from Husband after he told her to leave.  In preparation
for the separation, Wife purchased a mobile home, a freezer, a refrigerator,
and a stove.  In January, Wife transferred most of the money from the joint
account with Smith to an account solely in Smith's name and purchased a
certificate of deposit (cd) in Smith's name with the remaining $10,000.  Wife
acknowledged Smith had not contributed to the funds in the joint account.  When
Wife left on December 28, she took a considerable amount of personal property. 
She returned on a later date to retrieve more items of personal property. 

Husband brought this action
on January 11, 2007.  After a hearing, the family court held the marital
residence, which had a value of $45,000, had been transmuted into marital
property.  However, it held the Pasture Property was non-marital and Wife did
not have a special equity in the property.  The court found the funds in the
account in Smith's name, as well as the cd, were marital property and credited
Wife with these funds.  The court held each party would keep ownership and
possession of the household goods in his or her possession.  The court awarded
Wife attorney's fees.  Wife filed a motion to alter or amend, which the family
court denied.  This appeal followed. 

STANDARD OF REVIEW

On appeal from the family
court, this court reviews factual and legal issues de novo.  Simmons v.
Simmons, Op. No. 26970 (S.C. Sup.Ct. filed May 9, 2011) (Shearouse Adv. Sh.
No. 16 at 27, 29); see Lewis v. Lewis, Op. No. 26973 (S.C. Sup.Ct.
filed May 9, 2011) (Shearouse Adv. Sh. No. 16 at 41, 44).  Although this court
reviews the family court's findings de novo, we are not required to ignore the
fact that the family court, which saw and heard the witnesses, was in a better
position to evaluate their credibility and assign comparative weight to their
testimony.  Lewis, at 46–48.  The burden is upon the appellant to
convince this court that the family court erred in its findings.  Id. at
51.

LAW/ANALYSIS

1.  Pasture Property

Wife argues the family court
erred in failing to find the Pasture Property had been transmuted into marital
property or that she had a special equity interest in the property.  We
disagree.

Property acquired prior to
the marriage is generally considered nonmarital.  S.C. Code Ann. § 20-3-630(A)(2)
(Supp. 2010).  In addition, marital property does not include "any
increase in value in nonmarital property, except to the extent that the
increase resulted directly or indirectly from efforts of the other spouse
during marriage."  S.C. Code Ann. § 20-3-630(A)(5) (Supp. 2010).  A
non-owner spouse has a special equity interest in any increase in value of nonmarital
property resulting from that spouse's material contribution.  Murray v.
Murray, 312 S.C. 154, 159, 439 S.E.2d 312, 316 (Ct. App. 1993).

In addition, even if property
is nonmarital, it may be transmuted into marital property during the marriage.  Johnson
v. Johnson, 296 S.C. 289, 295, 372 S.E.2d 107, 110 (Ct. App. 1988).  The
spouse claiming nonmarital property has been transmuted must produce objective
evidence showing the parties themselves regarded the property as the common
property of the marriage during the marriage.  Id. at 295, 372 S.E.2d at
110-11. Evidence of transmutation includes jointly titling the property, using
the property exclusively for marital purposes, commingling the property with
marital property so that it becomes untraceable, or using marital funds to
build equity in the property.  Id. at 295, 372 S.E.2d at 111.  "The
mere use of separate property to support the marriage, without some additional
evidence of intent to treat it as property of the marriage, is not sufficient
to establish transmutation."  Id. at 295-96, 372 S.E.2d at 111.
Whether property has been transmuted into marital property is a matter of
intent to be determined from the facts of each case.  Simpson v. Simpson,
377 S.C. 527, 538, 660 S.E.2d 278, 284 (Ct. App. 2008). 

Husband purchased the Pasture
Property in 1947 for $3,000.  An appraiser valued the property at $383,000 at
the time of the hearing.  The Pasture Property was fenced and Husband kept
cattle on it.  In 1998, Husband's son purchased the cattle from Husband for
$10,000 and took over the duties of caring for the cattle and the property.  Husband
never had any debt on the Pasture Property during the marriage.  In addition,
he paid all of the taxes and insurance on the Pasture Property from his
account.  The Pasture Property was titled solely in his name and Husband had
devised the Pasture Property to his children in his will.  Wife acknowledged
Husband never indicated he would transfer the Pasture Property into her name. 
She also acknowledged that for years, his will provided the Pasture Property
would go to his children. 

Wife claimed she shared in
the care of the cattle.  She testified she went with Husband at least twice a
day to check on the cattle.  In addition she stated she accompanied Husband
when taking the cows to market.  When Husband was in the hospital, Wife and
Smith cared for the cattle.  Wife's son testified Husband and Wife always
worked on the Property together.  Reverend Samuel Duncan testified that he
frequently visited the parties' home during marriage.  He stated that often
when he arrived at the house, they would not be home.  They would later
apologize and explain they had been working at the farm.  However, he
acknowledged he did not know what chores Wife did at the farm.  Dr. Andrew
Singer, the veterinarian who treated the cattle, stated Wife was always with
Husband when he brought cattle to the practice.  Wife helped load and unload
the cattle and went inside to make the payments.  He stated during the later
years, he dealt exclusively with her while Husband stood by the truck. 

In contrast, Husband
testified Wife did not work with him on the Pasture Property.  He stated that
when Wife accompanied him to the property, she simply watched him work. 
Husband's son Robert testified Husband did all of the work on the Pasture Property
with Robert's occasional help.  Robert testified Wife often stayed in the truck
when the parties drove to the Property.  Sheila Loftis, who lived near the
Pasture Property, testified she only saw Husband and Robert working on the
property.  She never saw Wife working there.  Similarly, another neighbor who lived
near the Pasture Property stated in an affidavit that he had never seen Wife on
the property. 

We find the record supports
the family court's rulings that the Pasture Property had not been transmuted
and Wife did not have a special equity in the property.  Husband manifested no
intent to share the Pasture Property with Wife.  Wife made no financial
contributions to the Pasture Property and Husband paid for all taxes and
insurance on the Property from his separate account.  Although the property had
significantly increased in value, the increase was due mainly to changes in the
market conditions according to the appraiser.  While the good condition of the
property also added to the value, the evidence of Wife's non-financial
contributions to the property is contradictory.  As the family court was in a
better position to judge the credibility of the witnesses, we find the court
did not err in ruling Wife had no interest in the Pasture Property. 

2.  Personal Property

Wife argues the family court
erred in failing to order the return of Wife's nonmarital property that is
located at the marital residence.  We agree. 

As stated above, property acquired
prior to the marriage is generally considered nonmarital.  § 20-3-630(A)(2).  In
addition, property acquired by either party by gift from a party other than the
spouse is considered to be nonmarital.  S.C. Code Ann. § 20-3-630(A)(1) (Supp.
2010).  

On a form entitled Marital
and Non-Marital Property Subject to Equitable Distribution, Wife listed seven
items as "Personal property not subject to equitable distribution left at
marital residence": 

Large
Set of Silverware (Gift from my Daughter)

Projector
and Slides (Personally mine; taken on mission trips to various countries)

Pressure
Cooker (Belongs to Grace Metz)

Cuckoo
Clock (Gift from my son from Germany)

Little
Lamp (My son made when he was in School)

Drinking
Glasses (I brought them from Ohio)

Table
and 2 Chairs (I brought them from Ohio)

The family court ordered each
party was to maintain ownership and possession of the household goods in his or
her possession.  Husband does not contend the above listed items were in fact
marital property.  However, the record is not clear that Husband has possession
of all of the items on the list.  For example, Husband testified Wife left him
with no tables.  To the extent the family court allowed Husband to have
ownership of any items Wife acquired before the marriage or that were gifted
solely to her, we find error in its ruling.  Husband should return to Wife any
of these items that he, in fact, does retain in his possession. 

CONCLUSION

We affirm the family court's
ruling that Wife has no interest in the Pasture Property.  However, we find the
family court erred in allowing Husband to retain items of personal property
that Wife acquired before the marriage or that were gifted solely to her. 
Accordingly, the order of the family court is

AFFIRMED IN PART AND REVERSED IN PART.

HUFF and
LOCKEMY, JJ., and CURETON, A.J., concur. 

[1] Wife was born
June 5, 1926.  Husband was born December 1, 1919.