Nobles v. Nobles

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

Carie W.
Nobles, Respondent,

v.

Jon Christopher
Nobles, Appellant.

Appeal From Horry County

 H. E. Bonnoitt, Jr., Family Court Judge

 Mary E. Buchan, Family Court Judge

Unpublished Opinion No. 2008-UP-427

Submitted June 2, 2008 – Filed July 23,
2008   

AFFIRMED

John S. Nichols, of Columbia, for Appellant.

Frederick L. Harris, of Myrtle Beach; and George M. Hearn, Jr., of
Conway, for Respondent.

PER CURIAM: Jon Christopher Nobles (Husband) appeals the family court order granting Carie
Nobles (Wife) a divorce, arguing the family court erred in its determination of
marital property, valuation of special equity interests, and equitable division
of the marital estate.  We affirm.[1]

FACTS

I.  Background

Husband
and Wife were high school sweethearts and became engaged while attending Clemson University.  Husband graduated from Clemson in December 1993, and obtained
employment as a credit manager for Heilig-Myers Furniture in Columbia, South Carolina.  Husband and Wife married on May 20, 1995.  Shortly thereafter, Husband was
transferred to Griffin, Georgia, as a Heilig-Myers store manager.  Wife graduated
from Clemson in December 1995, and joined Husband in Griffin.  In July 1996,
Husband was transferred to Jacksonville, Florida, where he eventually managed three
Heilig-Myers stores and earned approximately $100,000 per year.  Wife also
obtained employment in Jacksonville at the Florida Department of Health as a
health educator earning $28,000 per year.

In early 2001, Husband lost his job with Heilig-Myers when the
retail chain filed for bankruptcy.  Consequently, Husband and Wife returned to South Carolina to open a franchise furniture store in Myrtle Beach.  In March 2001, while
making plans to leave Jacksonville, Wife became pregnant.  Approximately five months
later, the parties moved to North Myrtle Beach and their first child, Sarah,
was born in November 2001.  Following the birth of Sarah, Husband and Wife
moved into a new home with financial contributions provided by Wife’s parents. 

II.  Noble Enterprises
of the Carolinas

With the proceeds from the sale of their home in Jacksonville and
Husband’s 401(k), the parties opened Norwalk: The Furniture Idea (Norwalk), a franchise, under the name Noble Enterprises of the Carolinas, LLC, the
franchisee.  Based upon his management experience in the furniture business,
Husband served as Norwalk’s managing partner.  Husband, his mother and father,
and Wife each owned a twenty-five percent interest in the business.  While Wife
occasionally assisted with the business, she was primarily responsible for
caring for the couple’s first child. 

After Norwalk opened, Husband began staying away from home and became
less dedicated to his role as managing partner.  Consequently, Wife hired
Pamela Burris as sales manager for Norwalk.  Due to Husband’s increasing
unavailability, Burris became the de facto manager of the store.  By
December 2005, Husband was working as a waiter and was no longer associated
with Norwalk.  Shortly thereafter, Norwalk ceased operation.

III.  Termination of
Marriage

Husband began to withdraw from Wife in December 2003, arriving
home from work no earlier than 8:00 p.m. and sometimes as late as 11:00 p.m.  While
Wife expressed concern regarding Husband’s absence, he claimed work demanded
the majority of his time.  Husband showed little emotion and continued to
withdraw from the marriage when Wife became pregnant with the couple’s second
child in April 2004.  Husband began devoting his time to conducting private,
secretive activities on his computer, and would shut down the computer when
Wife entered the room.  Although Husband denied having an affair, Wife
discovered Husband was visiting various pornographic websites and corresponding
with at least three women twenty to thirty times a day in various internet chat
rooms.  Wife also found suspicious text messages of an explicit nature on
Husband’s phone and later found out Husband had rented a private post office
box.  Soon thereafter, Husband began refusing Wife’s phone calls during the day
and would not return home until Wife had gone to bed.  Husband’s appearance also
began to change dramatically.  Husband joined Gold’s Gym, hired a personal
trainer, and spent a minimum of three hours every day at the gym even though
his business was failing.  Husband’s financial excesses included an ongoing
health club membership, massages, manicures, hair appointments, car washes, and
lawn care.

On March 21, 2005, Wife confronted Husband regarding their marital
problems.  In response, Husband requested Wife file for divorce and the parties
subsequently separated.  Wife hired a private investigator who obtained proof
of Husband’s relationship with Allison Sides, a fellow member of Gold’s Gym.  Wife
and Wife’s father also observed Husband on several occasions with Sides, including
dinner dates and other social gatherings.  According to Husband, he engaged in
sexual relations with Sides only after the parties’ separation. 

IV.  Post-Separation
and Subsequent Proceedings

Since the separation, Wife and the couple’s children have continued
to reside in the marital home.  Wife found employment and earns $2,092 gross
per month.  Wife pays approximately $70 per month for the children’s medical
and dental insurance and $953 per month for daycare.  Immediately after the separation,
Husband resided with his parents and continued to work as a waiter.  However,
Husband later moved to Jacksonville, Florida with his present girlfriend,
Danelle Metz, where he still waits tables at a local restaurant.

Following Husband’s relocation to Jacksonville, Wife brought an
action against Husband seeking a divorce on the ground of adultery, an award of
separate support and maintenance, use and possession of the marital home,
custody of the parties’ two children, child support, alimony, attorneys’ fees,
and restraining orders against disposing of assets and exposing the children to
his romantic relationships.  In response, Husband counterclaimed for a mutual
bar to alimony, equitable apportionment of the marital estate, a co-parenting
arrangement, and an award of attorneys’ fees and court costs. 

On August 22, 2005, the family court issued a temporary order awarding
Wife primary custody of the children and use of the marital home.  The
temporary order also required Husband pay child support in the amount of $198
per month based upon his imputed income of $4,000.  In addition, Husband was
ordered to pay $2,000 per month for Wife’s separate support and maintenance as
well as $10,000 towards Wife’s attorneys’ fees.

Approximately one year later, the family court issued a final
order awarding Wife a divorce on the ground of adultery and granting her primary
custody of the parties’ two children.  In determining child support, the family
court imputed a monthly income of $4,000 to Husband finding he was voluntarily underemployed and capable
of earning more given his skills, experience, and expertise.  Based upon
Husband’s imputed earnings of $4,000 per month, the family court ordered
Husband to pay $1,114 in monthly child support.  With regards to equitable
division, the family court valued the marital home at $230,000 and distributed
sixty percent of the marital property to Wife.  In dividing the marital debt,
the family court also noted Wife faced potential liability to the former family
business based on an action brought against her by Noble Enterprises.  However,
the family court ordered Husband to indemnify Wife against any judgment awarded
in the pending lawsuit, finding any debt incurred by Noble Enterprises was “a
direct result of Husband’s failure to dedicate himself to the business and the
marriage . . . which he abandoned.”  The family court further ordered Husband to
pay Wife’s attorneys’ fees in the amount of $12,800.  Subsequently, Husband filed a Rule 59(e), SCRCP,
motion, which was denied.  This appeal followed.

STANDARD OF REVIEW

In an
appeal from the family court, the appellate court has the authority to find the
facts in accordance with its own view of the preponderance of the evidence.  Ex
parte Morris, 367 S.C. 56, 61, 624 S.E.2d 649, 652 (2006).  However,
this broad scope of review does not require the appellate court to disregard
the findings of the family court.  Wooten v. Wooten, 364 S.C. 532, 540,
615 S.E.2d 98, 102 (2005).  “Neither is the
appellate court required to ignore the fact that the family court, who saw and
heard the witnesses, was in a better position to evaluate their credibility and
assign comparative weight to their testimony.”  Id. at 540, 615
S.E.2d at 102.  

LAW/ANALYSIS

I.  Husband’s Income

Husband
argues the family court erred in imputing $4,000 per month income to him. 
Specifically, Husband asserts the family court erred in finding he was
voluntarily underemployed and capable of earning $4,000 per month based upon
his skill, experience, and expertise.  We disagree. 

Our courts
have held imputing income to a party who is voluntarily unemployed or
underemployed is proper.  Patel v. Patel, 359 S.C. 515, 532, 599 S.E.2d
114, 123 (2004); Penny v. Green, 357 S.C. 583, 592, 594 S.E.2d 171, 175
(Ct. App. 2004).  To prove voluntary underemployment, “a parent seeking to
impute income to the other parent need not establish a bad faith motivation to
lower a support obligation.”  Arnal v. Arnal, 371 S.C. 10, 13, 636
S.E.2d 864, 866 (2006).  When “imput[ing] income to a parent who is unemployed
or underemployed, the court should determine the employment potential and
probable earning level of the parent based on that parent’s recent work
history, occupational qualifications, and prevailing job opportunities and
earning levels in the community.”  Engle v. Engle, 343 S.C. 444, 449, 539
S.E.2d 712, 714 (Ct. App. 2000); 27 S.C. Code Ann. Regs. 114-4720(A)(5)(B)
(Supp. 2007).  “Where a parent voluntarily lessens his or her earning capacity,
this Court will closely scrutinize the facts to determine the parent’s earning
potential, rather than the parent’s actual income.”  Id.; see Camp
v. Camp, 269 S.C. 173, 174-5, 236 S.E.2d 814, 815 (1977); Robinson v.
Tyson, 319 S.C. 360, 363, 461 S.E.2d 397, 399 (Ct. App. 1995); see also Chastain v. Chastain, 289 S.C. 281, 283, 346 S.E.2d 33, 35 (Ct. App. 1986)
(finding father with master’s degree voluntarily removed himself from the job
market to attend law school and his earning potential was properly considered
in calculating child support).

Here,
Husband earned approximately
$100,000 per year managing three Heilig-Myers stores.  The
parties testified Husband earned at least $4,000 per month while he worked at Norwalk.  Also, Husband filed a loan application indicating he was earning $5,000 per
month.  After Husband abandoned Norwalk, he began working as a waiter in Myrtle Beach.  A short time later, Husband moved to Florida with his current girlfriend
where he also works as a waiter.  Husband testified he has applied for jobs,
but has not found one because he is only looking for upper-level management
jobs.  Husband has the ability to get a higher paying job than working as a
part-time waiter because of his experience and knowledge of the furniture
business; however, he has chosen to remain underemployed.  Therefore, the
family court did not err by imputing an income of $4,000 per month to
Husband.                    

II.  Marital Home

Husband
avers the family court erred in valuing the martial home at $230,000.  We
disagree.

The
family court has broad discretion in determining how marital property is to be
valued and distributed; therefore, the court may use any reasonable means to
divide the property equitably, and its judgment will be disturbed only where an
abuse of discretion is found.  Wooten, 364 S.C. at 541-45, 615 S.E.2d at
102-05.  In reviewing the family court’s equitable apportionment of marital
property, an appellate court’s role is to examine the fairness of the
apportionment as a whole.  Bragg v. Bragg, 347 S.C. 16, 24, 553 S.E.2d 251, 255
(Ct. App. 2001).  Generally, an appellate court will affirm the
family court if it can be determined the judge addressed the factors under the
marital property statute sufficiently for the appellate court to conclude the
judge was cognizant of the statutory factors.  Jenkins v. Jenkins, 345 S.C. 88, 100, 545 S.E.2d 531, 537
(Ct. App. 2001); see S.C. Code Ann. § 20-7-472 (1985).  Further, 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.  Woodward v. Woodward,
294 S.C. 210, 215, 363 S.E.2d 413, 416 (Ct. App. 1987). 

At trial, Wife and her father testified the house was worth about
$230,000.  Also, Husband listed the house as being worth $230,000 on
refinancing documents.  Husband did not present any evidence the house was
worth more than $230,000; therefore, Husband, after making no effort in valuing
the marital home, cannot now argue the family court’s determination is
unsupported by the evidence.  See Hough v. Hough, 312 S.C. 344,
347, 440 S.E.2d 387, 389 (Ct. App. 1994) (finding because Husband failed to
offer values for certain household goods at trial, he could not appeal the
family court’s valuation of those goods).  Furthermore, Husband bears the
burden in demonstrating the family court committed reversible error.  See Honea v. Honea, 292 S.C. 456, 458, 357 S.E.2d 191, 192 (Ct. App. 1987) (explaining
the burden is on appellant to show the family court committed reversible error,
and a party cannot sit back at trial without offering proof, then come to the
appellate court complaining of the insufficiency of evidence to support the
family court’s findings).  However, Husband provides no evidence that conclusively
demonstrates the family court’s findings are incorrect.  Even assuming the
family court erred in its valuation of the marital home, Husband fails to
establish the error was prejudicial to him.  Cox v. Cox, 290 S.C. 245, 248,
349 S.E.2d 92, 93 (Ct. App. 1986) (stating a party cannot complain of an error that
his own conduct has induced).  Therefore, the family court did not err by
determining the marital home was worth $230,000.    

III.  Equitable Division

Husband
maintains the family court erred in distributing sixty percent of the marital
property to Wife.  We disagree.

“The division of marital property is within the discretion of the
family court judge and the judge’s decision will not be disturbed on appeal
absent an abuse of discretion.”  Craig
v. Craig, 365 S.C. 285, 290, 617 S.E.2d 359, 361 (2005).  Section
20-7-472 of the South Carolina Code (Supp. 2007) provides
fifteen factors for the family court to consider in apportioning marital
property and affords the family court with the discretion to give weight to
each of these factors “as it finds appropriate.”  “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.”  Greene v. Greene, 351
S.C. 329, 340, 569 S.E.2d 393, 399 (Ct. App. 2002).  Additionally, “[w]hile there is certainly no recognized
presumption in favor of a fifty-fifty division, we approve equal division as an
appropriate starting point for a family court judge attempting to divide an
estate of a long-term marriage.”  Doe v. Doe, 370 S.C. 206, 214, 634
S.E.2d 51, 56 (Ct. App. 2006); see Avery v.
Avery, 370 S.C. 304, 311, 634 S.E.2d 668,
672 (Ct. App. 2006).  However, “this equal division of marital assets can . . .
be altered in favor of one spouse depending on the circumstances of each
case.”  Doe v. Doe, 370 S.C. 206, 215, 634 S.E.2d 51, 56 (Ct. App. 2006).

In this case, even though Husband and Wife were married for ten
years, the family court found, and we agree, Husband’s adultery caused the
breakup of the marriage, and thus, is an appropriate consideration for
equitable apportionment.  See id. (holding wife’s adultery caused
the breakup of the marriage, and thus, was an appropriate consideration for
equitable apportionment); Greene, 351 S.C.
at 341, 569 S.E.2d at 400 (finding the facts and
circumstances of the case, including Wife’s marital misconduct, rendered the
equal division of marital assets fair and reasonable).  Husband’s adultery also
caused him to abandon Norwalk, which adversely affected the parties’ economic
circumstances and the value of their marital estate.  Additionally, in dividing
the estate, the family court took into consideration that Wife has custody of
the couple’s two children.  Therefore, the division was not inequitable and the
family court did not err in awarding Wife sixty percent of the marital
property.

IV.  Indemnity

Husband
contends the family court lacked jurisdiction to order him to indemnify Wife
against any judgment awarded in the lawsuit brought by Noble Enterprises.  We
disagree.

“For
purposes of equitable distribution, a ‘marital debt’ is a debt incurred for the
joint benefit of the parties regardless of whether the parties are legally
liable or whether one party is individually liable.”  Wooten, 364 S.C.
at 546, 615 S.E.2d at 105.  Section 20-7-472(13) of the South Carolina Code (Supp.
2007) creates a rebuttable presumption that a debt of either spouse incurred
prior to the beginning of marital litigation is a marital debt and must be
factored in the totality of equitable apportionment.  Hickum v. Hickum,
320 S.C. 97, 102, 463 S.E.2d 321, 324 (Ct. App. 1995).  “The burden of proving
a debt is nonmarital rests upon the party who makes such an assertion.”  Id. at 103, 463 S.E.2d at 324. 

Here,
the record clearly indicates Wife’s liability to the corporation arose during
the marriage because Norwalk was formed as a family business.  Accordingly, the
family court had jurisdiction to identify and apportion this martial debt under
its general powers to equitably divide a marital estate.  Nevertheless, Husband
maintains the family court erred in awarding indemnification because Wife
failed to request such relief in her pleadings.  However, this issue is not
preserved for review because Husband failed to raise it in his Rule 59(e),
SCRCP, motion.  See Staubes v. City of Folly Beach, 339 S.C. 406,
412, 529 S.E.2d 543, 546 (2000) (“It is well-settled that an issue cannot be
raised for the first time on appeal, but must have been raised to and ruled
upon by the trial court to be preserved for appellate review.”).  Therefore,
the family court did not err by ordering Husband to indemnify Wife against any
judgment awarded against her. 

V.  Attorneys’ Fees

Husband
asserts the family court erred in awarding Wife attorneys’ fees in the amount
of $12,800.  We disagree.

The family court is authorized by statute to award attorney’s fees
in conjunction with marital litigation.  See S.C. Code Ann. § 20-7-420(2) (Supp. 2007).  When determining whether to award attorney’s fees, the
following factors should be considered: (1) the party’s ability to pay his or her
own attorney’s fee; (2) the parties’ respective financial conditions; and (3)
effect of the attorney’s fee on each party’s standard of living.  Glasscock
v. Glasscock, 304 S.C. 158, 161 n.1, 403 S.E.2d 313, 315 n.1 (1991).  If
the court determines attorney’s fees are warranted, the court should consider six
factors when determining the amount to award: (1) the nature, extent, and
difficulty of the case; (2) the time necessarily devoted to the case; (3) counsel’s professional standing; (4) the contingency
of compensation; (5) the beneficial results obtained; and (6) the customary
legal fees for similar services.  Id.  “The decision to award
attorney’s fees is a matter within the sound discretion of the trial judge and
the award will not be reversed on appeal absent an abuse of discretion.”  Marquez
v. Caudill, 376 S.C. 229, 246, 656 S.E.2d 737, 745 (2008).

In this case, the family
court found Wife “has no ability to pay her attorney’s fees while the Husband,
having represented himself and with a very substantial earning potential, can
afford to pay attorney’s fees.”  Further, the family court thoroughly analyzed
each of the factors outlined above and detailed its findings in its final
order.  The court’s findings are further supported by the affidavits of Wife’s
counsel submitted to the family court and contained in the record.  Accordingly, we find no abuse of
discretion in the family court’s award of attorneys’ fees to Wife.

CONCLUSION

Therefore,
the family court’s order is hereby

AFFIRMED.

SHORT
and KONDUROS, JJ., and CURETON, A.J. concur.

[1] We decide this case without oral argument pursuant to
Rule 215, SCACR.