Emily P. Smith v. Robert T. Smith

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

Emily P. Smith and Emily P. Smith and Associates, LLC,
Appellants,

v.

Robert T. Smith; Southern Collection, LLC; Southern
Collection Brokerage, LLC; Terrance Smith and
Associates, LLC; Robert B. Smith; and Sherry C. Smith,
Respondents.

Appellate Case No. 2022-001060

Appeal From Lexington County
Walton J. McLeod, IV, Circuit Court Judge

Unpublished Opinion No. 2024-UP-229
Heard June 5, 2024 – Filed July 3, 2024

AFFIRMED

Desa Ballard, Harvey M. Watson III, and Haley Alyse
Hubbard, of Ballard & Watson, Attorneys at Law, of
West Columbia, all for Appellants.

R. Hawthorne Barrett, Mark Brandon Goddard, John
Brian Kelchner, and Lindsey Marie Behnke, of Turner
Padget Graham & Laney, PA, of Columbia, all for
Respondents.
PER CURIAM: In this action for the dissolution of Southern Collection, LLC,
Emily P. Smith and Emily P. Smith and Associates, LLC (collectively, Appellants)
appeal the circuit court's dismissal of Appellants' complaint and denial of
Appellants' Emergency Motion for Appointment of Receiver. Appellants assert on
appeal the circuit court erred by (1) concluding that Southern Collection, LLC was
marital property; (2) granting Respondents' 1 Rule 12(b)(1), SCRCP, motion; (3)
granting Respondents' Rule 12(b)(6), SCRCP, motion; (4) denying Appellants'
Emergency Motion for Appointment of Receiver; (5) denying Appellants' Rule
38(a) right to trial by jury; and (6) dismissing the complaint as it relates to Robert
B. Smith and Sherry C. Smith. We affirm pursuant to Rule 220(b), SCACR, and
the following authorities:

1. As to whether the circuit court erred in finding Southern Collection, LLC was
marital property: S.C. Code Ann. § 20-3-630(A) (2014) ("'[M]arital 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 . . . regardless of how legal title is held."); Levy v. Carolinian,
LLC, 410 S.C. 140, 146, 763 S.E.2d 594, 597 (2014) ("A distributional interest in
an LLC is personal property and may be transferred in whole or in part."); Seels v.
Smalls, 437 S.C. 167, 174, 877 S.E.2d 351, 355 (2022) ("Section 20-3-610 [of the
South Carolina Code (2014)] provides each spouse has a 'vested' right in the
'marital property,' which is defined—and subject to apportionment 'by the family
courts of this [s]tate'—at the moment the marital litigation is filed . . . .").

2. As to whether the circuit court erred in granting Respondents' Rule 12(b)(1)
motion: Nix v. Columbia Staffing, Inc., 322 S.C. 277, 280, 471 S.E.2d 718, 719
(Ct. App. 1996) ("[L]ack of subject matter jurisdiction can be raised at any time,
can be raised for the first time on appeal, and can be raised sua sponte by the
court."); Rule 12(b)(1), SCRCP (establishing a circuit court may dismiss an action
over which it lacks subject matter jurisdiction); Bardoon Props., NV v. Eidolon
Corp., 326 S.C. 166, 169, 485 S.E.2d 371, 372 (1997) ("Subject matter jurisdiction
refers to the court's power to hear and determine cases of the general class to which
the proceedings in question belong."); Porter v. Lab. Depot, 372 S.C. 560, 567,

1
Robert T. Smith; Southern Collection, LLC; Southern Collection Brokerage,
LLC; Terrance Smith and Associates, LLC; Robert B. Smith; and Sherry C. Smith
(collectively, Respondents).
643 S.E.2d 96, 100 (Ct. App. 2007) ("The question of subject matter jurisdiction is
a question of law."); Cap. City Ins. Co. v. BP Staff, Inc., 382 S.C. 92, 99, 674
S.E.2d 524, 528 (Ct. App. 2009) ("[This court is] free to decide questions of law
with no deference to the trial court."); S.C. Code Ann. § 63-3-530(A)(2)(2010)
(establishing the family court has exclusive jurisdiction over a divorce and the
"settlement of all legal and equitable rights of the parties . . . in and to the real and
personal property of the marriage"); Seels, 437 S.C. at 174, 877 S.E.2d at 354
("The family court's exclusive jurisdiction over equitable apportionment extends to
marital property . . . ."); S.C. Code Ann. § 20-3-620 (2014) (establishing that if a
party makes claims of marital misconduct or fault against his or her spouse, which
resulted in the depreciation of a marital asset, such claims may be presented to the
family court and considered in the apportionment of the marital estate).

3, 4, and 5. As to whether (3) the circuit court erred in granting Respondents' Rule
12(b)(6) motion; (4) the circuit court erred in denying Appellants' Emergency
Motion for Appointment of Receiver; and (5) the circuit court denied Appellants'
Rule 38(a) right to trial by jury: 2 Futch v. McAllister Towing of Georgetown, Inc.,
335 S.C. 598, 613, 518 S.E.2d 591, 598 (1999) (determining our appellate courts
need not address remaining issues when the disposition of a prior issue is
dispositive).

6. As to whether the circuit court erred in dismissing the complaint as it relates to
Robert B. Smith and Sherry C. Smith: Appeal of Sexton, 298 S.C. 359, 361-62, 380
S.E.2d 832, 834 (1989) ("[W]hen property is alleged to be marital property, but it
is owned by a third party, the [f]amily [c]ourt has the subject matter jurisdiction to
join all persons with a possible interest in the property as parties to the action and
to determine if the property constitutes marital property as defined in [section 20-
3-630(A)]. If it is determined that the property is marital property, then the
[f]amily [c]ourt has the authority to determine the parties' equitable rights
therein.").

AFFIRMED.

WILLIAMS, C.J., and KONDUROS and TURNER, JJ. concur.

2
Pursuant to Rule 2(a), SCRFC, Rule 38(a), SCRCP, does not apply to domestic
relations actions.