Herring-Wilson v. Wilson

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

Jean Herring-Wilson, Appellant,

v.

Michael A. Wilson, Respondent.

Appellate Case No. 2013-000858

Appeal From Charleston County
Jack A. Landis, Family Court Judge

Unpublished Opinion No. 2015-UP-356
Heard November 12, 2014 – Filed July 15, 2015

AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED

Donald Bruce Clark, of Donald B. Clark, LLC, of
Charleston, for Appellant.

J. Michael DeTreville, of DeTreville Law & Mediation,
LLC, of Charleston, for Respondent.

PER CURIAM: Jean Herring-Wilson (Wife) appeals the family court's
qualification of an expert, valuation of a marital business, apportionment of marital
assets and debts, requirement Wife make payments on the marital home and certain
debts, and award of attorney's fees, expert fees, and private investigator fees to
Michael A. Wilson (Husband). We affirm in part, reverse in part, and remand.

1. We agree with Wife's argument the family court erred in valuing Jeanie's Home
Services at $603,000. See Brandi v. Brandi, 302 S.C. 353, 357, 396 S.E.2d 124,
126 (Ct. App. 1990) (stating when valuing marital property, a business should be
valued at its fair market value as a going concern); Reid v. Reid, 280 S.C. 367, 373,
312 S.E.2d 724, 727 (Ct. App. 1984) ("A property's 'fair market value' is the
amount of money which a purchaser willing but not obligated to buy the property
would pay an owner willing but not obligated to sell it, taking into account all uses
to which the property is adapted and might in reason be applied."); Casey v. Casey,
293 S.C. 503, 504, 362 S.E.2d 6, 7 (1987) ("When the goodwill in a business is
dependent upon the owner's future earnings, it is too speculative for inclusion in
the marital estate."). Husband's expert, Mark Bemis, testified he used a discounted
cash flow valuation mode in determining Jeanie's Home Services had a value of
$603,000. He admitted this value was not what someone would be willing to pay
for the business. Wife testified she believed the business was worth the value of its
equipment less its credit card debt. Jeanie's Home Services did not have contracts
with its clients. Wife stated she was the goodwill of the business. Husband's
initial financial declarations did not include a value for Jeanie's Home Services as
an asset. Bemis's valuation was not based on the fair market value of the business
as required by South Carolina law. On the other hand, Wife, as the owner of the
business, was qualified to testify as to her valuation of the business. See State v.
Brown, 402 S.C. 119, 129, 740 S.E.2d 493, 498 (2013) ("Under South Carolina
law, a property owner is generally qualified by the fact of ownership to give her
estimate concerning the value of her property unless the owner's lack of
qualification is so complete as to render that testimony entirely worthless."). Wife's
testimony the business had no value was consistent with Husband's initial financial
declarations, which did not list Jeanie's Home Services as an asset of the marital
estate. Accordingly, we find the value of Jeanie's Home Services, less the value of
the equipment given to Husband, was zero.1

1
Although we find the family court erred in adopting Bemis's valuation, we find
no error in the family court's qualification of Bemis as an expert. See Edwards v.
Edwards, 384 S.C. 179, 186, 682 S.E.2d 37, 41 (Ct. App. 2009) (stating defects in
the education and experience of an expert witness go to the weight, not the
admissibility, of the expert's testimony).
2. We agree with Wife's argument the family court erred in awarding Husband
expert witness fees. See Chastain v. Chastain, 381 S.C. 295, 306, 672 S.E.2d 108,
114 (Ct. App. 2009) (stating the same considerations that apply to awarding
attorney's fees also apply to awarding litigation expenses). As we find the family
court erred in valuing Jeanie's Home Services based on Bemis's testimony, this
testimony did not provide Husband with any beneficial results. Accordingly, we
reverse the award of expert fees for Bemis.

3. We agree with Wife's argument the family court erred in its apportionment of
the marital assets and debts. While we find the family court correctly ordered an
even division of the assets and debts, due to our holding the court erred in its
valuation of Jeanie's Home Services, we remand the matter to the family court to
affect a fifty percent-fifty percent distribution of the assets and debts and to
determine how much of the debts Wife has paid and how she may be reimbursed
for Husband's fifty percent share of the payments.

4. We agree with Wife's argument the family court erred in ordering Wife to make
all the mortgage, insurance, and tax payments on the marital home until it sold
even though the court allowed Husband to live in the home. We hold Husband
should be responsible for these payments for the time he has lived in the marital
home. We therefore remand to the family court for a determination of how many
payments Wife made pursuant to this provision and how such payments may be
refunded to her by Husband. The family court may reconsider Husband's
continued use of the home and how his use may be affecting the potential sale of
the home.

5. We disagree with Wife's argument the family court erred in awarding Husband
$2,500 in fees for the private investigator Husband hired to corroborate her
adultery. See Chastain, 381 S.C. at 306, 672 S.E.2d at 114 (stating the same
considerations that apply to awarding attorney's fees also apply to awarding
litigation expenses); id. ("Reimbursable expenses include reasonable and necessary
expenses incurred in obtaining evidence of a spouse's infidelity."). Wife refused to
admit her adultery in court until she was granted transactional immunity by the
Solicitor's Office. By then, Husband had incurred the fees. Wife initially sought a
divorce on the grounds of Husband's habitual drunkenness but later asked for the
divorce on the ground of one year's separation. The family court, however, granted
Husband's request for a divorce on the ground of Wife's adultery. As the family
court found the private investigator's testimony relevant, we hold the family court
did not abuse its discretion in awarding Husband his private investigator's fees.
6. Considering our disposition of the above issues, we remand the issue of an
award of attorney's fees to the family court. See Eason v. Eason, 384 S.C. 473,
482, 682 S.E.2d 804, 808 (2009) (holding the family court should reconsider the
issue of attorney's fees on remand based on the appellate court's disposition of
another issue on appeal); Patel v. Patel, 359 S.C. 515, 533, 599 S.E.2d 114, 123
(2004) ("In determining whether to award attorney's fees, the court should consider
each party's ability to pay his or her own fee; 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.").

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

HUFF, SHORT, and KONDUROS, JJ., concur.