Snipes v. Snipes

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

Harry M.
Snipes, Appellant,

v.

Tammy R. Snipes, Respondent.

Appeal From Aiken County

Peter R. Nuessle, Family Court Judge

Unpublished Opinion No. 2011-UP-479  

Heard September 14, 2011 – Filed October
26, 2011

AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED

James D. Mosteller, III, of Barnwell, for
Appellant.

Mark John Devine, of Aiken, for Respondent.

PER CURIAM: Harry M. Snipes (Husband) appeals the family court's
final order granting a divorce to Tammy R. Snipes (Wife) on the ground of
habitual drunkenness and division of the parties' assets.  Husband argues the
family court erred in (1) granting Wife a divorce on the ground of habitual drunkenness
based on his use of prescription drugs; (2) failing to grant his motion for a
continuance; and (3) including nonmarital property in the division of marital
assets.  We affirm in part, reverse in part, and remand. 

FACTS

Husband and Wife married on
September 16, 1995, and have one child together.[1] 
At the time they married, Husband was thirty years old and Wife was twenty-three
years old.  Husband had prior experience in industrial work but was not
working at the time of the divorce hearing, and Wife had a high school degree
and a cosmetology license to cut hair.  Wife also worked part-time for the
United States Postal Service. 

Prior to the commencement of
the divorce hearing, Husband moved to continue the case.  Husband stated he fired
his attorney and attempted to obtain representation from legal aid but was not
able to do so.  The family court noted Husband had over ninety days since the
last hearing in the case to obtain another attorney and reminded Husband he had
no absolute right to a free lawyer in a civil case.  Husband explained he did
not have any money to hire another attorney and stated he wanted to establish
that he was denied legal aid.  The family court proceeded to engage in a long
colloquy with Husband, explaining Husband's duties in the case and denying his
motion for a continuance. 

At the divorce hearing, Wife
testified she sought a divorce on the ground of habitual drunkenness based on
Husband's addiction to prescription medication.  Wife explained Husband had
prescriptions for multiple pain medications because of three surgeries for
injuries to his back and neck.[2]    Wife stated: "[Husband] was kind of out of it a lot of times.  He
could sit in a chair and just go to sleep.  He could lay in the bed all day
long and sleep.  Sometimes he would get aggravated or mad and just take a handful
of pills."       

Wife explained that after
Husband began taking his medication, he started to act differently, becoming
mean and arguing with her about different issues.  Wife alleged Husband
"took too much" of the medication for a period much longer than
needed to recuperate from the surgeries and appeared "drunk" a lot of
the time after he took the medication but admitted on cross-examination she did
not know the amount of medication prescribed by the doctors for Husband.[3] 
Wife testified she spoke to Husband about his addiction "and asked
[Husband] to get help, [but Husband said he] did not have a problem and that
[he] had to take that medication [and] could not live without that
medicine." 

Regarding the marital
property, Wife testified she and Husband lived in an old house on Husband's
property for about a week until the utilities were connected to the mobile home
she brought to the land.  Wife later purchased a 1997 Fleetwood mobile home in
which the family resided.  Wife explained both mobile homes were placed on land
owned by Husband before the marriage.  Wife stated Husband also "bought a
lot of things and keeps them and the yard would look like a junkyard." 
Wife testified she had the land and the property in the yard appraised at a
value of $82,850.  On cross-examination, Wife admitted some of the property in
the yard, including some of "the junk cars and things" were probably owned
by Husband before they were married but maintained everything became marital
property because it was commingled. 

The family court issued a
final order granting Wife a divorce from Husband on the ground of habitual
drunkenness.  The family court found: "[T]he evidence of witnesses who
testified for [Wife] establishes that [Husband] abuses prescription drugs and
is habitually intoxicated and impaired as a result of his abuse of those
drugs."  Regarding the apportionment of marital property, the family court
found the appraisal values assigned to the marital property were appropriate
and adopted Wife's proposed division of the property awarding Husband $92,145
and Wife $56,314.62 in marital property.  The family court also held:
"[t]o balance the equities, [Husband] must pay the sum of $21,415.00 to
[Wife]."  Subsequently, Husband filed a motion to alter or amend the
judgment pursuant to Rule 59, SCRCP.[4] 
After a hearing, the family court denied Husband's motion.  This appeal
followed.   

STANDARD OF REVIEW

The appellate
court reviews decisions of the family court de novo.  Lewis v. Lewis, 392 S.C. 381, 392, 709 S.E.2d 650, 655
(2011). The appellate court generally
defers to the factual findings of the family court regarding credibility
because the family court is in a better position to observe the witness and his
or her demeanor.  Id.  The party contesting the family court's decision
bears the burden of demonstrating the family court's factual findings are not
supported by the preponderance of the evidence.  Id.

LAW/ANALYSIS

I.  Habitual Drunkenness       

Husband
argues the trial court erred in granting Wife a divorce on the fault ground of
his habitual drunkenness.  We disagree.        

A divorce may be granted on
the ground of "[h]abitual drunkenness; provided, that this ground
shall be construed to include habitual drunkenness caused by the use of any
narcotic drug." S.C. Code Ann. § 20-3-10(4) (1985).  "In order to
prove habitual drunkenness, there must be a showing that the abuse of alcohol
caused the breakdown of the marriage and that such abuse existed at or near the
time of filing for divorce."  Epperly v. Epperly, 312 S.C. 411,
414, 440 S.E.2d 884, 885 (1994).  "[O]ne need not be an alcoholic to be
guilty of habitual drunkenness.  It is sufficient if the use or abuse of
alcohol causes the breakdown of normal marital relations."  Lee v. Lee,
282 S.C. 76, 79, 316 S.E.2d 435, 437 (Ct. App. 1984).  "Habitual
drunkenness is the fixed habit of frequently getting drunk; it does not
necessarily imply continual drunkenness."  Id. at 78-79, 316 S.E.2d
at 437 (citing Rooney v. Rooney, 242 S.C. 503, 505, 131 S.E.2d 618, 619
(1963)).

In this case, Husband does
not dispute he was using narcotic drugs prescribed by his physician.  Wife and
her brother testified Husband was frequently intoxicated because of the
medication, and Husband did not refute that testimony.  Wife observed that
Husband "took too much" of the medication for a period much longer
than needed to recuperate from his surgeries and would sometimes "grab a
handful of pills" when he got aggravated or mad.  Wife testified she and
Husband had a good marriage in prior years and she separated from Husband
because he "had become addicted to prescription medicine."  Based on
the evidence in the record before us, we affirm the family court's grant of
divorce to Wife on the ground of habitual drunkenness.

II.  Continuance

Husband next alleges the
family court erred in denying his request for a continuance the day of the
final hearing.  We disagree.

The grant or denial of a
continuance is within the sound discretion of the trial court and is reviewable
on appeal only when an abuse of discretion appears from the record.  Moore v.
Moore, 376 S.C. 467, 482, 657 S.E.2d 743, 751 (2008) (citing Bridwell v.
Bridwell, 279 S.C. 111, 112, 302 S.E.2d 856, 858 (1983)).  The "appellate
court will not set aside a court's ruling on a motion for a continuance unless
it clearly appears there was an abuse of discretion to the prejudice of the
movant."  Id. at 483, 657 S.E.2d at 751 (citing Townsend v.
Townsend, 323 S.C. 309, 313, 474 S.E.2d 424, 427 (1996)).

The record demonstrates
Husband had notice of the final hearing and had a period of ninety days in
which to secure replacement counsel.  He did not notify the family court prior
to the hearing that he was without counsel and would seek to continue the
hearing.  Furthermore, Husband filed the action seeking alimony, and Wife was
paying temporary alimony, which she sought to terminate.  Husband actively
participated in the trial and cross-examined witnesses, and although this was a
final hearing, the record shows Husband obtained replacement counsel, who filed
a motion for reconsideration on his behalf.  Accordingly, the family court did
not abuse its discretion in denying Husband's request for a continuance.

III.   Equitable Division

Finally, Husband contends the
family court erred in including certain property in the marital estate for
equitable distribution.  We agree.  

Husband's allegations center
on three different pieces of property: (1) the land upon which the mobile homes
were placed; (2) a house used briefly by the couple before they moved into the
mobile homes they occupied; and (3) a collection of secondhand items purchased
by Husband, including "junk cars" and other miscellaneous items.[5] 

Marital property is defined
in section 20-3-630(A) of the South Carolina Code (Supp. 2010) 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 . . . regardless of how legal title is held."  However, the
statute also lays out five exceptions to this general rule, stating several
types of property constitute nonmarital property, including "property
acquired by either party before the marriage."  S.C. Code Ann. §
20-3-630(A)(2).    

The family court made no
findings regarding whether the items at issue were marital or nonmarital although
Wife testified Husband had purchased the old home and property and at least
some of the junk cars prior to the marriage.  Therefore, we remand the issue of
equitable division to the family court for a determination of what property is
included or excluded in the marital estate and equitable apportionment in light
of those findings.

CONCLUSION

We affirm the family court's
grant of divorce to Wife on the grounds of Husband's habitual drunkenness and
we affirm the family court's denial of Husband's request for a continuance.  We
reverse the family court's decision with respect to equitable distribution of
the parties' assets and remand for a determination of what property is included
in the marital estate and equitable apportionment.

AFFIRMED IN PART, REVERSED
IN PART, AND REMANDED.

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

[1]  The child is over eighteen and lives with Wife. 
Wife did not seek child support payments at the divorce hearing and the issues
of custody and child support payments are not being challenged by Husband on
appeal.       

[2]  The record is not clear as to what pain medication
Husband was prescribed, but Wife testified the list of medications included
Oxycontin and Vicodin. 

[3]  Wife's brother, Herbert Cook, also testified at the
divorce hearing and corroborated Wife's testimony about Husband appearing intoxicated
while on the prescription medication. 

[4]  Husband represented himself during the divorce
hearing but was represented by an attorney for purposes of the Rule 59, SCRCP,
motion.  Husband is represented by the same attorney for purposes of his
appeal.    

[5] We note Husband also raises a challenge related to
his $5,000 contribution toward the 1997 Fleetwood mobile home.  However, this
issue is not preserved for our review because it was not raised to the family
court during the hearing or in a post-trial motion.  See Nicholson v.
Nicholson, 378 S.C. 523, 537, 663 S.E.2d 74, 82 (Ct. App. 2008) (holding
when the family court did not rule on an issue at trial and the party did not
make a Rule 59(e), SCRCP, motion, the issue is not preserved for appellate
review).