Fuller v. Fuller

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT
BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE
239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

June T. Fuller, Appellant/Respondent,

v.

James T.
Fuller, Respondent/Appellant.

Appeal From Greenville County

Robert N. Jenkins, Sr., Family Court Judge

Unpublished Opinion No. 2009-UP-008

Submitted October 22, 2008 – Filed January
7, 2009  

AFFIRMED

J. Falkner Wilkes, of Greenville, for Appellant-Respondent.

Bruce Wyche Bannister, of Greenville, for Respondent-Appellant.

PER CURIAM:  This is a cross-appeal in a divorce action.  June T.
Fuller (Wife) alleges error in the inclusion of her premarital home in the
marital estate and the decision of the family court to accept the valuation and
distribution of the marital assets proposed by James T. Fuller (Husband).  Husband
alleges error in the family court’s assignment of one hundred percent of the
marital debt to him.  We affirm.[1]

FACTS AND PROCEDURAL HISTORY

The parties married
in 1979 and separated in 2003.  No children were born of the marriage.  When
they married, Wife had been employed with Hoechst Celanese for twelve years. 
Husband at the time was unemployed, having been fired from his most recent
job.  Shortly after the marriage, Wife quit her job and bought a trucking
business, and Husband worked for her as a truck driver.

The
marital residence was a house on Heathwood Drive, in Taylors, South Carolina.  Wife
purchased the house in 1969 with her former husband.  Wife paid her former
husband $22,500 for his half-interest in the home before she married Husband.

When Husband and
Wife married, Wife had a mortgage of $22,000 on the home.  The mortgage was
paid off by 1982 with funds Wife earned both before and during her marriage to
Husband.  According to Wife, although Husband was working for her in her
trucking business, he did not contribute any funds toward payment of the
mortgage.  During their marriage, the parties added a screened-in porch to the
house and made it into a Florida room.  Although Wife maintained she paid for
the improvement from her earnings, she acknowledged Husband performed the
physical labor.  Husband also maintained he contributed toward other
improvements, including glass in the side of the carport, an additional
building behind the house, and porch cement.

The parties
separated on February 14, 2003.  According to Wife, the separation occurred
following an altercation between the parties over a tax refund.  Wife filed a
complaint in the family court on February 21, 2003, and amended it in May
2003.  Husband answered and counterclaimed, and Wife filed a reply. 

The matter came
before the family court on June 23, 2004, and January 20, 2005, for a final
hearing.  At the end of the first full day of the hearing, the family court
granted Husband’s motion to bifurcate the proceedings.  By order issued at the
conclusion of the first hearing on June 23, 2004, the parties were divorced.

On
March 15, 2005, the family court issued an order addressing the remaining
issues.  Of relevance to this appeal, the family court (1) found Wife had shown
sufficient evidence of physical abuse by Husband constituting marital
misconduct; (2) ordered that “[a]ll of the marital debts listed on the
Financial Declarations and in existence at the time of the filing of the
original Complaint in February 2003 shall be the sole responsibility of
[Husband]”; and (3) identified and valued the marital assets using a list
provided by Husband and found that a 50-50 division of the marital assets was
proper.  The family court also found Husband in contempt for certain
misrepresentations concerning a workers’ compensation settlement, his social
security income, and his ownership of a motorcycle.  As a result, Husband was
ordered to pay $12,875 toward Wife’s attorney’s fees.  Nevertheless, the court
based its equitable division award primarily on a statement Husband provided
that listed, valued, and divided the marital assets, instead of a similar
statement provided by Wife.  Husband’s statement included as a marital asset the
Heathwood Drive home that Wife had purchased with her former husband and had
served as the parties’ residence before their separation.

Wife
moved to alter or amend the order, and the motions were heard December 13,
2005.  Following an order issued later that month, both parties appealed.

DISCUSSION

1.  Wife alleges error in the
family court’s inclusion of the Heathwood Drive residence in the marital estate,
arguing (1) there were no specific findings of fact in the family court’s order
that would support a finding of transmutation; and (2) Husband failed to prove she
had intended that the home would be transmuted into marital property.  We find
no reversible error.[2]

Wife is correct
that the appealed order is devoid of any pertinent findings of fact regarding
transmutation of the home; however, “if this Court can make its own findings
from its review of the evidence, remand is not necessary.”  Sutton v. Sutton,
291 S.C. 401, 411, 353 S.E.2d 884, 889 (Ct. App. 1987).  Based on our review of
the record on appeal in this case, we find there is ample evidence of more than
“mere use” of the home that would support a finding that, regardless of indications
that Wife always intended to retain sole title to the property, it was used in
support of the marriage so as to demonstrate the parties’ intent to make it a
marital asset.  See Pool v. Pool, 321 S.C. 84, 88, 467 S.E.2d
753, 756 (Ct. App. 1996) (stating transmutation of nonmarital property may
occur if the property (1) becomes so commingled with marital property as to be
untraceable; (2) becomes 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).  Although Wife maintains Husband did
not contribute directly to the mortgage payment, she acknowledges he was
working while the mortgage was being paid off and his earnings assisted the
parties in meeting their other expenses during this time.  In addition, the
parties lived in the home almost twenty-four years, during which Husband
contributed his physical labor to various improvements.[3]

2.  Wife further argues the
family court erred in adopting Husband’s proposal for division of the marital
property, apparently rejecting the proposal she submitted.  We find no error.

In the appealed
order, the family court gave no reason for why it elected to use Husband’s
marital assets sheet instead of Wife’s.  In addition, Wife emphasizes Husband’s
misconduct both before and during the proceedings, including his physical abuse
of her and his misrepresentation to the family court about his assets and
income.  Wife, however, did not give any specific reasons as to why the family
court’s valuation and division of the marital assets were incorrect, nor did
she provide appraisals or other independent evidence to support her valuations. 
Moreover, although the family court elected to use Husband’s marital assets
sheet, it also made adjustments for Husband’s misrepresentations and imposed
sanctions on him by ordering him to pay Wife’s attorney’s fees.  Under these
circumstances, we hold Wife has not presented a basis on which to find the
family court abused its discretion in dividing the marital assets and therefore
decline to disturb the provisions of the appealed order addressing this issue.  See Craig v. Craig, 365 S.C. 285, 290, 617 S.E.2d 359, 361 (2005)
(“The division of marital property is within the discretion of the family court
judge and the judge’s decision will not be disturbed on appeal absent an abuse
of discretion.”).

3.  Husband also appeals the
decision of the family court.  He argues that the family court abused its
discretion in assigning all of the marital debt to him.  Husband avers such an
assignment of debt (1) is a violation of the statutory requirement that marital
debt be equitably divided; and (2) made the ultimate division of the marital
estate inequitable.  We disagree.

The
laws of this state provide fifteen factors for the court to consider in
dividing and apportioning marital property. S.C. Code Ann. § 20-7-472 (Supp.
2007).  In dividing the marital estate the family court judge has wide
discretion, and the judgment of the family court will not be disturbed on
appeal absent an abuse of discretion.  Craig, 365 S.C. at 290, 617
S.E.2d at 361; Wood v. Wood, 292 S.C. 43, 45, 354 S.E.2d 796, 798 (Ct. App. 1987); Gay v. Gay, 288 S.C. 74, 75, 339 S.E.2d 532, 533-34 (Ct. App. 1986). 

In
marriages of significant length, this Court has approved “equal division as an
appropriate starting point for a family court judge [when] attempting to divide
an estate.” Doe v. Doe, 370 S.C. 206, 214, 634 S.E.2d 51, 56 (Ct. App. 2006).  However, “there is certainly no recognized presumption in favor of a
fifty-fifty division.” Id.  As such, the discretion remains with the
family court judge to determine an appropriate division of the marital estate. 

We
find it to be within the discretion of the family court judge to assign all or
part of marital debt to a party as a mechanism for achieving the desired
division of the marital estate.  Although such an assignment in this case
occasioned a 39% to 61% split of the estate in favor of the Wife, such a determination
is within the discretion of the family court.  See id. (ruling a
60% to 40% division to be equitable).   Furthermore, we note that a review of
the record indicates that Husband agreed to accept all of the marital debt. 

Accordingly,
we find the record supports the family court’s division of the marital estate
in this case.  It is irrelevant that this Court may have weighed particular
factors differently than the family court. See Green v. Green,
351 S.C. 329, 340, 569 S.E.2d 603, 604 (Ct. App. 1993).

The
family court did not abuse its discretion in assigning all the marital debt to
Husband.

AFFIRMED.

SHORT, THOMAS,
and PIEPER, JJ., concur.

[1]  We decide this case without oral argument pursuant
to Rule 215, SCACR.

[2]  It appears
from the transcript that Wife’s trial counsel argued to the family court that
Husband was entitled to only a special equity in the Heathwood Drive residence;
however, the family court did not address this argument in the final order. 
Wife’s post-trial motions were not included in the record on appeal, and this
Court requested copies of the motions from Wife’s appellate counsel.  There was
no mention in any of the materials submitted in response to the request about
the possibility of limiting Husband’s interest in the residence to a special
equity; therefore, we cannot consider such a possibility on appeal.  See Noisette v. Ismail, 304 S.C. 56, 58, 403 S.E.2d 122, 124 (1991) (holding
the court of appeals improperly addressed an issue that the “circuit court did
not explicitly rule on” when the appellant did not raise the issue in a motion
to alter or amend).

[3]  Although we have affirmed the appealed order based
on our own findings from our review of the evidence, we take this opportunity
to remind the family court bench that, under the South Carolina Rules of Family
Court, “[a]n order or judgment pursuant to an adjudication in a domestic
relations case shall set forth the specific findings of fact and conclusions of
law to support the court’s decision.” Rule 26(a), SCRFC.