DeMichele v. DeMichele

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

Domenic J. DeMichele,       
Respondent,

v.

Linda Sue Burke DeMichele,       
Appellant.

Appeal From Florence County

R. Kinard Johnson, Jr., Family Court
Judge

Unpublished Opinion No. 2003-UP-158  

Submitted January 13, 2003 – Filed February 25, 2003

AFFIRMED AS MODIFIED

Janet T. Butcher, of Columbia; for Appellant.

Allen C. Pate, of Florence; for Respondent.

PER CURIAM:  Linda Sue Burke DeMichele (Wife)
appeals the family court order granting a divorce to Domenic J. DeMichele (Husband),
arguing the family court erred (1) in its valuation of Husband’s medical practice;
and (2) in offsetting Wife’s share of the equitably divided marital estate by
the amount of Husband’s attorney fees, suit money, and costs.  We affirm as
modified. [1]

Husband and Wife married in May 1989.  Their only
child was born in April 1990.  In November 1999, Husband sued Wife for
divorce on the grounds of adultery.  Among other things, he sought equitable
division of their marital property and attorney fees.  Wife’s answer and counterclaim
included an admission of adultery. 

The family court issued an order in December
2000 that granted Husband’s request for divorce of the ground of adultery. 
The family court order also equitably divided the marital estate valuing Husband’s
medical practice at $250,302.00.  To effect the division of the marital estate,
the family court found Husband owed Wife $44,142.75 towards the apportionment
of the marital estate.  It also found Wife owed Husband $62,778.78, consisting
of (1) attorney fees and costs totaling $26,278.78; (2) private investigator
fees of approximately $34,000.00; and (3) damage to an automobile estimated
at $2,500.00.  Noting Wife was unable to pay the sum, the family court sought
to compensate Husband by offsetting the $44,142.75 he owed Wife by the $62,778.78
she owed him.  In awarding attorney fees and costs to Husband, the family court
made numerous findings including considerations of the beneficial result obtained
for Husband and Wife’s ability to pay the award. 

I.

Wife argues the valuation placed by the
family court on Husband’s interest in his medical practice is unsupported by
credible evidence.  We disagree.

The family court has wide discretion in determining
how marital property is to be distributed.
[2]   In so doing, it “may use any reasonable means to divide the property
equitably . . . .” [3]   An appellate court will affirm
the family court’s valuation of marital property if it is within the range of
the evidence presented. [4]  
The family court may accept one party’s valuations of marital property over
those of the other party. [5]  

Here, each party presented testimony concerning
the value of Husband’s medical practice.  Husband’s witnesses provided testimony
supporting a finding that his interest in the medical practice was worth approximately
$261,938.81. [6]   Wife’s expert estimated the worth of the medical
practice at $500,000.00.  The family court determined that the value of the
practice was $250,302.00, which is within the range of evidence presented. 
We therefore find the family court did not abuse its discretion in valuing Husband’s
medical practice.

Both parties concede that the family court made
a mathematical error by reducing the valuation by $11,363.10.  We therefore
modify this finding by valuing Husband’s interest in the medical practice at
$261,938.81. 

II.

By attacking the propriety of the award of attorney
fees, suit money, and costs, Wife next contends that the family court erred
in offsetting her share of the marital estate by the amount of Husband’s attorney
fees and costs.  We disagree. 

In determining whether to award attorney fees,
the court should consider the parties’ ability to pay their own fees,
the beneficial results obtained by the attorney, the parties’ respective financial
conditions, and the effect of the fees on each party’s standard of living. [7]   South Carolina Code section 20-3-130(H) provides
that “the court, from time to time after considering the financial resources
and marital fault of both parties, may order one party to pay a reasonable amount
to the other for attorney fees.” [8]

Here, Wife contends that in making its finding
concerning the “beneficial results obtained,” the family court failed to consider
that Wife admitted her adulterous behavior, the basis upon which Husband sought
a divorce.  We find this argument unavailing.  The fact remains that Husband
initiated an action seeking divorce on the basis of adultery and prevailed. [9]

Wife further argues that the family court failed
to consider Husband’s earning ability as a physician and its impact on his ability
to pay, as well as how requiring her to pay Husband’s legal expenses would affect
her standard of living.  A family court’s consideration of a party’s ability
to pay is but one of the factors the family court should consider when awarding
attorney fees. [10]   No one
factor is determinative.  The family court stated it took into consideration
the factors set forth in Glasscock,
[11] as well as the ethical consideration in section 20-3-130(H).
[12]   We find no abuse of discretion in offsetting Husband’s attorney fees.

The decision of the family court is AFFIRMED AS MODIFIED.

GOOLSBY, HUFF, and SHULER,
JJ., concur.

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

[2]   Murphy v. Murphy, 319 S.C. 324, 329, 461
S.E.2d 39, 41 (1995). 

[3]   Id. at 329, 461 S.E.2d at 41-42. 

[4]   Smith v. Smith, 327 S.C. 448, 454, 486
S.E.2d 516, 519 (Ct. App. 1997). 

[5]   Id.

[6]  
      

Value of Partnership
Interest 
 $274,899.72

+                    Accounts Receivable  
 103,128.00

Subtotal
378,027.72

-          Husband’s 50% equity in PA

(116,088.91)

Net Value
$261,938.81

Husband’s witness testified that the partnership had
a negative balance of $232,177.81, one-half of which he ascribed to Husband. 
In calculating Husband’s one-half interest, the family court erroneously found
it equaled $127,725.00, rather than $116,088.91. 

[7]   E.D.M. v. T.A.M., 307 S.C. 471, 476-77,
415 S.E.2d 812, 816 (1992) (citing Glasscock v. Glasscock, 304
S.C. 158, 403 S.E.2d 313 (1991)); Doe v. Doe, 324 S.C. 492, 505, 478
S.E.2d 854, 861 (Ct. App. 1996).

[8]   S.C. Code Ann. § 20-3-130(H) (Supp. 2002).

[9]   Cf. Medlin v. King, 294 S.C. 406,
409, 365 S.E.2d 36, 38-39 (Ct. App. 1988) (holding that King’s attorney fees
were properly denied, although King testified about her limited means, because
in determining if attorney fees were warranted, the family court was free
to consider additional factors, including most notably the result obtained).

[10]   “An award of attorney[ ] fees and costs is
a discretionary matter not to be overturned absent abuse by the trial court.” 
Donahue v. Donahue, 299 S.C. 353, 365, 384 S.E.2d 741, 748 (1989).

[11]   Glasscock v. Glasscock, 304 S.C. 158,
403 S.E.2d 313 (1991).

[12]   S.C. Code Ann. § 20-3-130(H) (Supp. 2002).