Brewer v. Brewer

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

Alvenia Lowe Brewer, a/k/a Alvenia Lowe Reeves,
Appellant,

v.

Theodore Roosevelt Brewer, Respondent.

Appellate Case No. 2010-178546

Appeal From Lancaster County
W. Thomas Sprott, Jr., Family Court Judge

Unpublished Opinion No. 2013-UP-149
Heard October 3, 2012 – Filed April 10, 2013

AFFIRMED

Philip E. Wright, of Lancaster, for Appellant.

Coreen B. Khoury, of Folks Khoury & DeVenny, LLC,
of Lancaster, for Respondent.

PER CURIAM: Alvenia Lowe Brewer (Wife) appeals the family court's order
granting the parties a divorce and equitably dividing their marital property. She
argues the family court erred in (1) failing to equitably divide the parties' personal
property, (2) awarding her only a one-half interest in the marital home, (3)
determining Theodore Roosevelt Brewer's (Husband's) Detroit residence (Detroit
co-op) was not transmuted into marital property, and (4) finding Wife's credit card
debt was nonmarital. We affirm.

"In appeals from the family court, [appellate courts] review[] factual and legal
issues de novo." Simmons v. Simmons, 392 S.C. 412, 414, 709 S.E.2d 666, 667
(2011). Nonetheless, "de novo review neither relieves an appellant of
demonstrating error nor requires us to ignore the findings of the family court."
Lewis v. Lewis, 392 S.C. 381, 388-89, 709 S.E.2d 650, 654 (2011). The burden is
upon the appellant to convince the appellate court that the preponderance of the
evidence is against the family court's findings. Id. at 388, 709 S.E.2d at 653.

1. Personal Property

The parties have settled the issue of the division of their personal property, and the
family court approved their settlement agreement in an order dated March 20,
2013.

2. Marital Home

Wife asserts the family court erred in finding she was entitled only to a one-half
interest in the marital home. We disagree.

Subsection 20-3-620(B) of the South Carolina Code (Supp. 2012) sets forth fifteen
factors for the family court to consider in apportioning marital property. Those
factors include, but are not limited to: the duration of the marriage and the ages of
the parties; "[t]he contribution of each spouse to the acquisition, preservation,
depreciation, or appreciation in value of the marital property, including the
contribution of the spouse as homemaker"; any liens or debts; and each party's
income, health, and nonmarital property. Id. These statutory factors are intended
to "guide the family court in exercising its discretion over apportionment of marital
property." Sanders v. Sanders, 396 S.C. 410, 418, 722 S.E.2d 15, 19 (Ct. App.
2011). Appellate courts do not re-weigh the apportionment factors but review the
overall apportionment for fairness. Johnson v. Johnson, 296 S.C. 289, 299-300,
372 S.E.2d 107, 113 (Ct. App. 1988).

We find the family court's apportionment of the marital home was fair, and we
affirm. The findings of fact reflected in the family court's order indicate it
considered and weighed the appropriate statutory factors. See Sanders, 396 S.C. at
418, 722 S.E.2d at 19 (recognizing statutory factors guide the family court in
apportioning marital property). Specifically, the family court found the marriage
lasted nine years, and both parties were retired at the time of the marriage and in
their seventies at the time of the divorce. The family court further noted the parties
enjoyed similar retirement incomes, with Husband receiving approximately $282
more per month than Wife, but Wife's health was good while Husband's was
declining. With regard to the marital home, the family court noted Husband had
owned the sixteen-and-a-half-acre home site since 1979, and both parties had
contributed personal monies and secured a mortgage to fund construction of the
marital home. The family court stated that, at the time Wife filed for divorce, the
parties owed $114,318 on the first mortgage loan. The parties stipulated to a value
of $220,000 for the marital home.

On appeal, Wife argues she contributed more money toward constructing the
marital home than Husband. While this assertion may be true, it ignores Husband's
other contributions. The parties testified they paid $250,000 for construction of the
home and $35,000 for subsequent improvements, for a total of $285,000.
However, between personal funds and a second mortgage, the parties claimed to
have paid a total of $310,600 to build and improve the marital home.1 Husband
testified he contributed the land plus $75,000 of his own funds. Wife testified she
contributed a total of $90,000 of her own funds. Both parties signed the mortgage
loan in the amount of $145,600. We find Wife has not shown her contributions to
the construction of the marital home were significantly greater than Husband's.

Moreover, we find the family court's overall apportionment of marital property,
including the share each party received of the equity in the marital home, was fair.
See Johnson, 296 S.C. at 299-300, 372 S.E.2d at 113 (restricting appellate review
of equitable apportionment to a determination of whether the family court's awards
were fair overall). The record indicates the parties made roughly equal
contributions to the marital estate. However, because the parties failed to provide
the family court with values for the vehicles and personal property, we are unable
to compare the precise values of the total awards.

Although different in content, the awards appear fair. The record reflects Husband
received all real property and some personal property, including two non-operating
vehicles, but also more than $166,000 in marital debt. Even though the family
court awarded him both the marital home and the nonmarital Detroit co-op, neither

1
We recognize this claim results in an unexplained overpayment of $25,600.
property was owned "free and clear." The parties owed more than $114,000 on the
marital home, and the Detroit co-op was subject to a monthly maintenance fee of
$305. Furthermore, the family court ordered Husband to take out an additional
loan to pay Wife $52,841 for her equity in the marital home. As a result, Husband
received a net award of approximately $54,000, plus the Detroit co-op, two non-
operating vehicles, and some furnishings.

On the other hand, Wife received no real property, more personal property than
Husband, and no marital debt. She received four vehicles, at least one of which
was operational; some furnishings; $52,841 in cash for her equity in the marital
home; and her nonmarital credit card debt of approximately $24,000.

Each party received a net award of marital property totaling approximately
$50,000, plus unvalued personal property. Accordingly, we find the family court
did not err in apportioning the equity in the marital home equally between the
parties.

3. Detroit Co-op

Next, Wife asserts the family court erred in holding the Detroit co-op was not
transmuted into marital property. We disagree.

Generally, marital property "means 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. § 20-3-630(A)
(Supp. 2012). "[P]roperty acquired by either party before the marriage" does not
qualify as marital property. S.C. Code Ann. § 20-3-630(A)(2) (Supp. 2012). "The
[family] court does not have jurisdiction or authority to apportion nonmarital
property." S.C. Code Ann. § 20-3-630(B) (Supp. 2012).

Nonetheless, nonmarital property may be transmuted into marital property if it:

(1) . . . becomes so commingled with marital property as
to be untraceable; (2) . . . is jointly titled; or (3) . . . 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. Transmutation is a
matter of intent to be gleaned from the facts of each case.
The spouse claiming transmutation must produce
objective evidence showing that, during the marriage, the
parties themselves regarded the property as the common
property of the marriage. 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.

Pool v. Pool, 321 S.C. 84, 88, 467 S.E.2d 753, 756 (Ct. App. 1996) (citations
omitted), aff'd as modified, 329 S.C. 324, 494 S.E.2d 820 (1998).

We affirm. We find Wife failed to produce evidence the Detroit co-op was
transmuted into marital property, and she makes no argument that the Detroit co-op
was commingled to the point of being untraceable or that it was jointly titled. She
argues only that the parties' use of the property demonstrated an intent to make it
marital. We find the evidence Wife provides amounts to mere use rather than
transmutation.

In Murray v. Murray, 312 S.C. 154, 156-57, 439 S.E.2d 312, 314 (Ct. App. 1993),
the husband acquired a home prior to marrying the wife. The parties lived in the
home throughout their seventeen-year marriage. Id. at 157, 439 S.E.2d at 315.
Finding the wife "failed to produce evidence that any appreciable amount of
marital funds was expended on" improving the marital home, this court held the
home remained the nonmarital property of the husband. Id. at 158, 439 S.E.2d at
315. It did, however, affirm the family court's award to the wife of a special equity
in the appreciation in value of the marital home during the marriage. Id. at 161-62,
439 S.E.2d at 317.

In Pruitt v. Pruitt, 389 S.C. 250, 262, 697 S.E.2d 702, 708 (Ct. App. 2010), the
husband built a home on land owned by his grandmother. Before completing the
home, he married the wife and they moved into the home. Id. at 262, 697 S.E.2d at
708-09. The wife assisted him in completing the construction of the home. Id. at
262, 697 S.E.2d at 709. However, the husband claimed he paid for the
construction of and improvements to the home from his personal funds, and the
wife failed to present evidence to the contrary. Id. at 262-63, 697 S.E.2d at 708-
09. At some point during the marriage, the husband alone received title to the
property through a gift from his family, making the home and land his nonmarital
property. Id. at 262 n.3, 697 S.E.2d at 709 n.3. Although the parties lived in this
home during their nineteen-year marriage, these facts demonstrated mere use of the
property rather than transmutation. Id. at 263, 697 S.E.2d at 709.
In the case at bar, Wife bases her transmutation argument upon (1) her subjective
belief that Husband added her name to the deed and (2) the parties' use of the
Detroit co-op for temporary lodging and storage. Pursuant to Murray and Pruitt,
we find the evidence in the case at bar demonstrates mere use of the property and
not an intent to transmute it into marital property.2 Accordingly, the family court
did not err in finding the Detroit co-op remained Husband's nonmarital property.

4. Wife's Credit Card Debt

Finally, Wife asserts the family court erred in finding her credit card debt was
nonmarital. We disagree.

In addition to liens and other encumbrances upon the parties' marital and
nonmarital property, a family court tasked with equitably apportioning the marital
estate must consider "any other existing debts incurred by the parties or either of
them during the course of the marriage." S.C. Code Ann. § 20-3-620(B)(13)
(Supp. 2012); compare S.C. Code Ann. § 20-5-60 (1985) ("A husband shall not be
liable for the debts of his wife contracted prior to or after their marriage, except for
her necessary support and that of their minor children residing with her.").
Subsection 20-3-620(B)(13) "creates a presumption that a debt of either spouse
incurred prior to marital litigation is a marital debt and must be factored in the
totality of equitable apportionment. The presumption is rebuttable." Hardy v.
Hardy, 311 S.C. 433, 436, 429 S.E.2d 811, 813 (Ct. App. 1993).

. . . For purposes of equitable distribution, "marital debt"
is debt incurred for the joint benefit of the parties
regardless of whether the parties are legally jointly liable
for the debt or whether one party is legally individually
liable. The same rules of fairness and equity that apply
to the equitable distribution of marital property also
apply to the equitable division of marital debts.

King v. King, 384 S.C. 134, 143, 681 S.E.2d 609, 614 (Ct. App. 2009) (citations
and quotation marks omitted). However, "[m]arital debt, like marital property,
must be specifically identified and apportioned in equitable distribution." Wooten
v. Wooten, 364 S.C. 532, 546, 615 S.E.2d 98, 105 (2005).

2
Wife does not argue that she is entitled to a special equity.
We find Wife failed to present sufficient evidence of her credit card debt to
identify it as a marital debt. See id. Debt incurred by an individual prior to
marriage, like property acquired by an individual prior to marriage, is not
presumed to be part of the marital estate. § 20-3-620(B)(13); § 20-3-630(A)(2)
(providing "property acquired by either party before the marriage" is not marital
property). Furthermore, when the family court equitably apportions the marital
estate, it must specifically identify and apportion any marital debt. Wooten, 364
S.C. at 546, 615 S.E.2d at 105. These provisions implicitly require the party
asserting a marital debt to supply the family court with evidence adequate for the
family court to determine (1) the party or parties incurred a debt (2) of an
approximate amount (3) to a certain creditor (4) during the marriage and (5) that it
benefited the marriage.

We find Wife failed to present sufficient evidence for the family court to make this
determination and, in turn, fulfill its obligation under Wooten to "specifically
identify" the debt. Wife's financial statement indicates she paid $900 per month on
a balance of $24,000 for "Misc. Credit Cards." When asked whether that debt
"arose during the marriage," Wife answered affirmatively. Although Wife
conceded she possessed the credit cards before she married Husband, she
maintained, "We used those credit cards [during the marriage]." She explained the
cards were used for household purchases. According to Husband's testimony, Wife
carried her own credit cards and did "[w]hat she wanted" with them.3

Despite Wife's contention to the contrary, the family court did not find her $24,000
in credit card debt was nonmarital. The family court was simply unable to
determine whether any portion of the debt was marital or nonmarital. The family
court stated, "On the day of the [merits] hearing, [Wife] produced no statements or
testimony showing creditor's name, balance on credit card at time of filing or time
of marriage, time of purchases nor items purchased." In view of Wife's failure to
produce specific evidence about her credit card debt that would enable the family
court to determine whether or how much of that debt was marital, the family court
did not err in refusing to characterize it as marital.

AFFIRMED.

3
We note that Husband's substantial credit card debt had been discharged through
bankruptcy proceedings.
FEW, C.J., PIEPER, J., and CURETON, A.J., concur.