Weekley v. Weekley

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

William Jeff Weekley and Christopher L. Weekley, Sr.,
Respondents,

v.

John Lance Weekley, Jr. and Marcus Earl Weekley, Sr.,
Appellants.

Appellate Case No. 2011-193506

Appeal From Hampton County
James Martin Harvey, Jr., Special Referee

Unpublished Opinion No. 2013-UP-303
Heard December 11, 2012 – Filed July 3, 2013

AFFIRMED AS MODIFIED

Andrew Sims Radeker, of Harrison & Radeker, P.A., of
Columbia, for Appellants.

Demetri K. Koutrakos and Mary Dameron Milliken, of
Callison, Tighe & Robinson, L.L.C., of Columbia, and
Kevin Angus Brown, of Anderson & Brown, L.L.C., of
Hampton, for Respondents.
PER CURIAM: This is a partition and accounting action brought by brothers,
William Jeff Weekley and Christopher L. Weekley, Sr., hereinafter collectively
Respondents, against their brothers, John Lance Weekley, Jr. and Marcus Earl
Weekley, Sr., hereinafter collectively Appellants. Appealing from the order of the
Special Referee, Appellants assert various errors by the referee, including making
the particular division, considering improper offsets to Respondents in making the
division, failing to consider offsets in favor of Appellants, and finding the parties
stipulated the accounting cause of action would be decided by the Probate Court.
We affirm as modified.

1. Appellants contend the referee erred and made an unfair partition by
dividing the property so that all of the best hunting and fishing land was allocated
to the Respondents, in violation of S.C. Code Ann. § 15-61-50. They maintain no
findings were made by the referee showing why it would be impracticable to give
each set of brothers some of the land that each demonstrated was most valuable to
them, with all receiving some of the land at the back, i.e., land abutting the swamp.
We disagree.

"The partition procedure must be fair and equitable to all parties of the action."
Zimmerman v. Marsh, 365 S.C. 383, 386, 618 S.E.2d 898, 900 (2005); see also
S.C. Code Ann. § 15-61-50 (2005) ("The court of common pleas has jurisdiction in
all cases of real and personal estates held in joint tenancy or in common to make
partition in kind or by allotment to one or more of the parties upon their accounting
to the other parties in interest for their respective shares or, in case partition in kind
or by allotment cannot be fairly and impartially made and without injury to any of
the parties in interest, by the sale of the property and the division of the proceeds
according to the rights of the parties."). "[P]artition in kind is favored when it can
be fairly made without injury to the parties." Anderson v. Anderson, 299 S.C. 110,
114, 382 S.E.2d 897, 899 (1989). While equitable considerations, such as length
of ownership and sentimental attachment to property, may be considered in a
partition action, the pecuniary interests of all of the parties is the determining
factor in deciding whether to require a judicial sale or to allow a partition by
allotment. Zimmerman, 365 S.C. at 388, 618 S.E.2d at 901.

In Campbell v. Jordan, 382 S.C. 445, 675 S.E.2d 801 (Ct. App. 2009), this court
considered a challenge on appeal to a partition in kind. There, we held the referee
properly partitioned the property in a manner that was fair and equitable to all the
parties, where the referee considered the parties' emotional attachment to the land,
the parties' respective living situations, and the parties' preference for a partition in
kind rather than a judicial sale. Id. at 451, 675 S.E.2d at 804. Further, though the
appellants in Campbell argued they had an emotional attachment to a particular
portion of the land and thus it had a greater inherent value to them, we noted the
appellants failed to assert that the referee erred in assigning property values or in
assigning ownership interest shares to each party. Id. at 451-52, 675 S.E.2d at 804-
05. See Wilson v. McGuire, 320 S.C. 137, 139 n.2, 463 S.E.2d 614, 616 n.2 (Ct.
App. 1995) (stating that the allocation of a preselected tract to one heir is not
prejudicial to other heirs unless evidence is presented to demonstrate that the
preselected tract is more valuable than the other tracts).

Here, the referee recognized the highest and best use of the property was
recreational. However, he further recognized that some of the 210.48 acres was
valued at $1,700 per acre, while other acreage was valued at $2,000 per acre, and
divided the property with these differing values in mind. In making the division,
he took into consideration that the property containing the home-site, which was
awarded to Appellants as everyone agreed would be proper, had a value of $2,000
per acre. He thereafter divided the remainder of the property based upon these
economic valuations. Appellants do not challenge these valuations placed on the
acreage. Rather, they object to the referee's failure to award them land toward the
rear, abutting the swamp. Though Appellants' attachment to the swamp area of the
property and their desire to use it for recreational purposes is an equitable
consideration, Appellants fail to assert that the referee erred in assigning property
values, or show that the land allotted to them is of less economic value than that
allotted to Respondents.. Further, the referee had other equitable matters to take
into consideration which resulted in the division he made. First, he divided the
property in such a way as to allow Appellants to remain on the home-site. Second,
he allotted to each set of brothers one of the two areas of historical family
significance: the home-site and the boat landing. Third, and importantly, he
divided the property in a manner to address the safety concerns raised by
Respondents. Specifically, the record shows there is clear animosity amongst these
brothers, and their history shows not only the threat of the use of guns, but the
actual firing of weapons by Appellants while Respondents and their family
members were in the vicinity. The referee considered the Appellants' use of guns
in certain areas in determining the appropriate division of the property. Therefore,
because there is no contention the referee failed to properly divide the land itself
based upon the economic value of the different acres, and inasmuch as he
accomplished many of the equitable considerations, we hold he properly
partitioned the property in a manner that was fair and equitable to all the parties in
spite of the fact that Appellants did not receive any property abutting the swamp.
2. Appellants' Issues 2 through 5 are based upon arguments that are not
properly preserved for our review. Many of these issues were never raised to the
referee in any manner. Further, even assuming arguendo that some were raised by
virtue of the evidence submitted, none were ever ruled upon by the referee, in spite
of the fact that Appellants made a motion to alter or amend and could have
properly raised the matters at that time. See Pikaart v. A & A Taxi, Inc., 393 S.C.
312, 324, 713 S.E.2d 267, 273 (2011) ("A matter may not be presented for the first
time on appeal; rather, it must have been both raised to and ruled upon by the court
below."); Mathis v. Brown & Brown of S.C., Inc., 389 S.C. 299, 311, 698 S.E.2d
773, 779 (2010) (holding, in order for an issue to be properly preserved for appeal,
it must have been both raised to and ruled on by the trial court, and where the trial
court's order did not address appellant's argument and appellant did not bring the
absence of this issue to the trial court's attention in a motion to alter or amend, the
issue was not preserved); I'On, L.L.C. v. Town of Mt. Pleasant, 338 S.C. 406, 422,
526 S.E.2d 716, 724 (2000) (noting the losing party generally must both present
his issues and arguments to the trial court and obtain a ruling before those issues
and arguments will be reviewed by an appellate court); Noisette v. Ismail, 304 S.C.
56, 58, 403 S.E.2d 122, 124 (1991) (holding an issue is not preserved where the
trial court does not explicitly rule on an argument and the appellant fails to make a
Rule 59(e), SCRCP motion to alter or amend the judgment on that ground); see
also In re Estate of Timmerman, 331 S.C. 455, 460, 502 S.E.2d 920, 922 (Ct. App.
1998) (holding when a party receives an order granting relief not previously
contemplated or presented to the trial court, the aggrieved party must move to alter
or amend the judgment, pursuant to Rule 59(e), SCRCP, in order to preserve the
issue for appeal).

3. In their last issue, Appellants contend the referee erred in finding there was a
stipulation that an accounting cause of action would be decided by the Probate
Court. In his order, the referee stated, "The parties stipulated that the
[Respondents'] second cause of action for accounting would be deferred to the
consideration of the Probate Court." The parties agreed only to bifurcate the
partition and accounting causes of action, proceeding on the partition action and
leaving the record open as to the accounting matter. They clearly never stipulated
the accounting cause of action would be heard by the Probate Court. Respondents
agree the stipulation between the parties was simply that the two causes of action
would be bifurcated, and concede there was no stipulation that it be heard by the
Probate Court. Respondents consent to a hearing before the court of proper
jurisdiction. Accordingly, we modify the referee's order to reflect that there was no
stipulation that the accounting matter would be considered by the Probate Court,
but only that the causes of action would be bifurcated and the hearing left open as
to the accounting issue.1

AFFIRMED AS MODIFIED.

FEW, C.J., and HUFF and GEATHERS, JJ., concur.

1
We note this issue was not raised to or ruled upon by the referee either.
However, inasmuch as Respondents concede the error, we find modification of the
referee's order proper on this point. We decline to address what court is the proper
court of jurisdiction, as that matter was not raised to or ruled upon by the referee
and Respondents have not conceded any particular court has jurisdiction.