Merritt v. Merritt

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

Frances Debra Merritt,       
Respondent,

v.

George Todd Merritt,       
Appellant.

Appeal From Spartanburg County

Georgia V. Anderson, Family Court Judge

Unpublished Opinion No.  2005-UP-009

Heard November 16, 2004 – Filed January
10, 2005

AFFIRMED IN PART, REVERSED IN PART,

and REMANDED

Jeffrey Falkner Wilkes, of Greenville, for Appellant.

James C. Cothran, Jr., of Spartanburg, for Respondent.

Joseph K. Maddox, Jr., of Spartanburg, for Guardian Ad Litem.

PER CURIAM: In this appeal arising from
a divorce decree, George Todd Merritt (Husband) argues the family court erred
in identifying and dividing the marital property, granting custody of the parties’
child to Frances Deborah Merritt (Wife), requiring Husband to pay half of the
child’s private school tuition, and awarding attorney’s fees to Wife.  We affirm
in part, reverse in part, and remand.

FACTS

Frances and George Merritt were married in March
1992.  During the marriage, the parties accumulated very little personal property
because Husband came into the marriage with household goods he had retained
from a prior marriage. In July 1993, the couple had a child.  Two years later,
the couple built a house with the assistance of Husband’s family.    In June
2000, after eight years of marriage, Wife learned that Husband was committing
adultery.  Soon thereafter, she initiated divorce proceedings.  In 2001, a divorce
was granted on the ground of adultery. Pursuant to the parties’ divorce, the
family court identified and divided marital property, granted primary custody
of the child to Wife, required Husband to pay half of the child’s private school
tuition, and granted Wife attorney’s fees.  This appeal followed.

STANDARD OR REVIEW

In appeals from the family court, this court has
authority to find the facts in accordance with our own view of the preponderance
of the evidence.  Wynn v. Wynn, 360 S.C. 117, 122, 600 S.E.2d 71, 74 (Ct.
App. 2004).  However, this broad scope of review does not require us to disregard
the findings of the family court.  Greene v. Greene, 351 S.C. 329, 335,
569 S.E.2d 393, 397 (Ct. App. 2002). We are mindful that the family court judge,
who saw and heard the witnesses, was in a better position to evaluate their
credibility and assign comparative weight to their testimony.  Roberson v.
Roberson, 359 S.C. 384, 388, 597 S.E.2d 840, 842 (Ct. App. 2004). 
“This is especially true in cases involving the welfare and best interests of
children.”  Dorchester County Dep’t of Soc. Servs. v. Miller, 324 S.C.
445, 452, 477 S.E.2d 476, 480 (Ct. App. 1996).

The family court has broad discretion in determining
how marital property is to be valued and distributed.  Murphy v. Murphy,
319 S.C. 324, 329, 461 S.E.2d 39, 41 (1995).  Therefore, the family court may
use any reasonable means to divide the property equitably, and its judgment
will only be disturbed where abuse of discretion is found.  Id. at 329,
461 S.E.2d at 41-42.

LAW/ANALYSIS

Husband argues that premarital personal property and
a workers’ compensation award were improperly transmuted and apportioned.  Next,
he argues the marital residence was improperly apportioned.  Husband also argues
that the court’s child custody arrangement was in error and that he should not
be required to pay private school tuition for his child.  Finally, he argues
attorney’s fees should not have been awarded to Wife.

1.     Transmutation of Personal Premarital
Property

Husband argues personal premarital property was improperly
transmuted because the family court “failed to find any specific facts which
would indicate an intent that [the premarital property] become marital other
than their mere use during the marriage.”  We disagree.

Marital property is defined 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 . .
. .”  S.C. Code Ann. § 20-7-473 (Supp. 2003).  However, property acquired by
either party prior to the marriage can be transmuted into marital property if:
“(1) it becomes so commingled with marital property as to be untraceable; (2)
it is jointly titled; or (3) it is utilized by the parties in support of the
marriage or in some other manner so as to evidence an intent by the parties
to make it marital property.”  Greene v. Greene, 351 S.C. 329, 338, 569
S.E.2d 393, 398 (Ct. App. 2002).  Importantly, transmutation is a matter of
intent to be gleaned from the facts of each case.  Id.  

Here, the family court specifically found
the items had been used throughout the marriage, and there was testimony that
Wife cleaned and cared for the personal property in the home.  Furthermore,
there was no evidence that the parties intended to keep the premarital property
separate and distinct.  Cf. Greene, 351 S.C. at 338-339, 569 S.E.2d
at 398-399 (finding no transmutation where the husband deliberately kept his
premarital property separate and distinct from the parties’ marital property). 
We believe the use of the property under this set of facts indicates that “the
parties themselves regarded the property as the common property of the marriage.” 
See Widman v. Widman, 348 S.C. 97, 117, 557 S.E.2d 693, 704 (Ct.
App. 2001).  Therefore, we reject Husband’s argument that premarital property
was not transmuted and affirm the findings of the family court.

2.       Workers’ Compensation Award

Next, Husband argues the
workers’ compensation award he received for injuries sustained during the course
of the marriage should not have been apportioned equally with Wife because the
award was based on future disability.  We disagree.

Our supreme court has specifically ruled
that a workers’ compensation award acquired during the marriage is marital property. 
See Orszula v. Orszula, 292 S.C. 264, 266, 356 S.E.2d 114, 115
(1987).  This rule was reaffirmed in Marsh v. Marsh, 313 S.C. 42, 46,
437 S.E.2d 34, 37 (1993).  In Marsh, the court considered a personal
injury settlement and explained the family court should consider all of the
equitable division factors “and in many cases probably should[] award the proceeds
entirely to the injured party.”  Id. at 45, 437 S.E.2d at 36.  Nevertheless,
the Marsh court affirmed an equal division of the proceeds from the settlement.

Pursuant to the Orszula and Marsh cases,
the family court properly considered the $24,000 workers’ compensation award
as marital property.  Thus, our review shifts to whether it was appropriately
apportioned. 

Our law is premised on providing
“the family court the flexibility to view each case based on the individual
circumstances peculiar to the parties involved and to fashion a division of
the parties’ assets in a manner that is uniquely fair to the parties concerned.” 
Id. at 46, 437 S.E.2d at 36.  Furthermore, section 20-7-472 of the South
Carolina Code (Supp. 2003) vests in the family court, not the appellate court,
the discretion to decide what weight should be assigned to the various factors
of equitable apportionment.  See Jenkins v. Jenkins, 345 S.C.
88, 100, 545 S.E.2d 531, 537 (Ct. App. 2001).  On review, we look to the
fairness of the overall apportionment; if the end result is equitable, it is
irrelevant that we might have weighed specific factors differently than the
family court.  Id.

In determining the equitable division of Husband’s
workers’ compensation award, the family court stated:

Wife is entitled to one half (1/2) of the net proceeds of
[Husband’s] Worker’s Compensation award with the money used to pay off the credit
cards and any outstanding doctor’s bills from [Husband’s] injury being deducted
from the lump sum of $24,000.00.  Based upon the testimony received at trial,
Wife is entitled to $6,500.00 as equitable division of this marital asset.

The only evidence in the record about the award
is that Husband used $3,000 of it to reduce marital debt and gave $3,000 of
it to Wife in cash.  The record is devoid of any testimony describing Husband’s
injuries or explaining how those injuries would impact his ability to earn income
in the future.  Therefore, based on the evidence in the record, we find no error
in the family court’s apportionment of the award.   

3.     Marital Residence

Husband next argues the marital residence, which
is titled in his name, was improperly apportioned.  We disagree.

During the marriage, Husband traded land he owned
prior to the marriage for the lot on which he and Wife eventually built their
marital home.  In order to pay for the construction, Husband used $11,870 from
a premarital money market account, and the couple took out a mortgage.  The
cost of building the home was reduced because Husband’s brother built its foundation
and Husband’s father, who is a general contractor, completed the rest of the
construction for cost.  At the time of the parties’ divorce, the outstanding
balance on the mortgage was $31,544, and the equity in the home was $60,956. 

The family court apportioned the property by giving
Husband a special equity in the house for $10,000, the value of the lot, and
$11,870, the value of the money market account.  The remainder of the equity
in the home was divided equally between the parties. 

Husband argues the value of the time, labor, and
money his family invested in the home should be excluded from its equity.  Husband
relies on Sexton v. Sexton, 308 S.C. 37, 43, 416 S.E.2d 649, 654 (Ct.
App. 1992), and the statement that “[t]he fact a substantial portion of the
value of the house is attributable to contributions made by the husband’s family
should be a consideration in this case.”  However, in Sexton, the court
was concerned the family court judge had not made any specific findings regarding
the equitable division factors.  Id.  Here, the family court did specifically
consider the equitable division factors in its order.  Additionally, in Sexton,
the parties only lived in the house for one year prior to initiation of litigation,
whereas in this case, the couple lived in the house for over five years prior
to Wife’s discovery of Husband’s infidelity and initiation of the litigation. 
Id.  We therefore find no abuse in discretion of the family court’s equitable
division.

4.     Child Custody

Husband argues the family
court erred by granting primary placement of the child with Wife.  We disagree. 

In a custody case, the best interest of the child
is the controlling factor.  Patel v. Patel, 359 S.C. 515, 526, 599 S.E.2d
114, 119 (2004).  To assess the best interest of the child, the court should
consider several factors, including: “who has been the primary caretaker; the
conduct, attributes, and fitness of the parents; the opinions of third parties
(including GAL, expert witnesses, and the children); and the age, health, and
sex of the children.”  Patel v. Patel, 347 S.C. 281, 285, 555 S.E.2d
386, 388 (2001).  Over time, it has become customary for the family court
to appoint a guardian ad litem in private custody disputes.  The guardian ad
litem operates as a representative of the court and assists by advocating for
the child’s best interests and providing the court an objective view.  Id.
at 287, 555 S.E.2d at 389. 

In this case, the guardian
ad litem recommended joint physical custody so that the child could spend an
equal amount of time with each parent.  The family court awarded joint custody,
but it was arranged so that Wife would be the primary custodian.  The court
crafted a detailed and generous visitation schedule, granting Husband visitation
every Wednesday and every other weekend. The family court also divided holidays
and birthdays equally between the parties. 

The guardian ad litem’s recommendation
resulted from his perception that the conflict between the parties would continue,
and he believed the child would remain a tool for Wife’s use in a power struggle
with Husband.  By giving the parties joint physical custody, the guardian believed
“everyone is going to know that they don’t have any kind of power over the other
person.” 

We are also concerned
about a pattern of behavior directed against Husband by Wife.  Wife has made
unsubstantiated allegations that child’s paternal grandmother sexually abused
the child.  She had Husband arrested for trespass when he arrived for visitation,
and they had a misunderstanding regarding the details of the prior visitation
order.  She confronted Husband at the county fair when she and the child saw
Husband there with his paramour and her son.  Finally, she has caused the school
to refuse the Husband access to child.  While Wife is certainly allowed to be
angry about the dissolution of the marriage, she must also understand the best
interests of her child require her to be civil and work with Husband.

Despite our concerns, we find no error in the family
court’s decision to grant primary custody to Wife even though the guardian ad
litem recommended otherwise.  Initially, we note that the family court is not
bound by a guardian’s recommendation.  Pirayesh v. Pirayesh, 359 S.C.
284, 296, 596 S.E.2d 505, 512 (Ct. App. 2004).  Moreover, true joint custody,
as the guardian recommended, should only be awarded where there are exceptional
circumstances.  Patel v. Patel, 359 S.C. 515, 528-29, 599 S.E.2d 114,
121 (2004); see also Scott v. Scott, 354 S.C. 118, 125, 579
S.E.2d 620, 623 (2003) (stating joint physical custody is usually harmful to
the best interests and welfare of a child).   Here, the reason the guardian
gave for recommending joint custody stemmed from his concern that the child
would be used as a pawn in the parties’ disputes.  The family court ameliorated
this concern by issuing an order with specific visitation instructions.  Furthermore,
the tension between the parties would make joint physical custody of the child
extremely difficult.  We therefore find no error in the family court’s custody
arrangement.

5.     Private School Tuition

Husband also asserts the family court erred by
failing to consider the child support guidelines when ordering him to pay half
of the child’s private school tuition.  We agree.

The court found “the [Husband] voluntarily offered
to pay the tuition at trial and that he is paying child support pursuant to
the guidelines.”   From an examination of Wife’s financial declaration, it appears
Husband’s monthly share of the tuition is $316.  However, at trial, Husband
only agreed to pay private school tuition if there was split custody, and he
stated that if he had to pay a greater amount of child support, he would not
be able to afford his share of private school. Therefore, the court’s order
was based on a misapprehension of the testimony.  

The child support guidelines specifically allow
deviations to account for the educational expenses of the child, but also require
the deviations to be supported by “written findings that clearly state the nature
and extent of the variation.”  S.C. Code Ann. Regs. 114-4710 (Supp. 2003). 
This court cannot find written findings to sufficiently support the decision
on this issue, and therefore, we remand this issue to the family court for consideration
of how the tuition requirements would impact the Husband’s child support obligations. 

6.     Attorney’s Fees

Husband argues the court erred by awarding Wife
$5,000 in attorney’s fees.  Initially, Husband admits he is at fault for the
divorce, but seeks to temper this with the family court’s finding that he had
informed Wife prior to committing adultery of his desire to separate.  Husband
also points to the court’s findings that Wife’s “actions have aggravated the
litigation.”  We find these arguments unavailing.

The award of attorney’s fees is a matter left to
the discretion of the family court judge and will not be overturned absent an
abuse of that discretion.  Donahue v. Donahue, 299 S.C. 353, 365, 384
S.E.2d 741, 748 (1989).  To determine whether to award a party attorney’s fees,
the family court should consider each party’s ability to pay his or her own
fees, the beneficial results obtained by the attorney; the parties’ respective
financial conditions, and the effect of the fee on each party’s standard of
living.  Griffith v. Griffith, 332 S.C. 630, 645, 506 S.E.2d 526, 534
(Ct. App. 1998) (citing E.D.M. v. T.A.M., 307 S.C. 471, 415 S.E.2d 812
(1992)).

Here, the family court found Wife had substantially
prevailed and that Husband was at fault for the litigation.  Furthermore, the
court earlier found Husband’s gross monthly income was significantly greater
than Wife’s.  We therefore affirm the award.

CONCLUSION

We AFFIRM the family court’s equitable division
of marital property, its custody arrangement, and its award of attorney’s fees. 
We REVERSE the family court’s requirement that Husband pay half of the
child’s private school tuition without allowing it to factor into his child
support obligation, and REMAND this issue to the family court.

AFFIRMED IN PART, REVERSED
IN PART, AND REMANDED.

HEARN, C.J., GOOLSBY, and WILLIAMS, concur.