Burr v. Burr

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

Deanna L. Burr, Respondent,

v.

Wayne Burr, Appellant.

Appeal From Lexington County

 Richard W. Chewning, III, Family Court
Judge

Unpublished Opinion No.  2008-UP-157

Submitted March 3, 2008 – Filed March 12,
2008 

AFFIRMED

G. Robin  Alley, of Columbia, for Appellant.

Stevens Bultman Elliott, of Columbia, for Respondent.

PER CURIAM:  Deeana
Burr (Wife) filed for divorce from Wayne Burr (Husband).  The family court
issued an order granting the divorce, apportioning marital property and
awarding Wife $3,500 in attorney’s fees.  We affirm.

FACTS

Husband
and Wife were married for approximately one year when they separated in 2004. 
Wife subsequently filed an action for divorce on the grounds of physical
cruelty.  In her Complaint, Wife alleged the parties’ equitably divided all
marital property at the time of separation, with the exception of a Harley
Davidson motorcycle.  Wife sought a divorce, approval of the division of the
property, alimony, and attorney’s fees. 

The
family court held a final hearing on March 14, 2006.  Wife testified Husband
took several items of personal property from the marital home after the
parties’ separation.  Wife offered evidence as to the value of the property. 
Wife also submitted an Affidavit of Attorney’s Fees.  Husband did not appear at
the hearing or offer any testimony. 

The
family court issued a decree of divorce on April 13, 2006.  In the decree, the
family court ordered Husband to return the personal property he removed from
the marital home and valued the personal property at $35,745.  The decree further
provided if Husband did not return the personal property within ten days he
must pay $300 per month to Wife until he returned the property or paid for the
property in full.  In addition, the family court ordered Husband to pay
Wife $3,500 in attorney’s fees. 

Husband
filed a motion to reconsider the family court’s order pursuant to Rule 59(e),
SCRCP, asking the family court to decrease the value of the personal property
and extend the time limit for him to return the personal property.  In
addition, Husband argued the family court’s award of attorney’s fees was
excessive in nature.   The family court denied the motion, and this
appeal followed.

STANDARD OF REVIEW

An
appellate court, in its review of an appeal from family court, has jurisdiction
to find facts in accordance with its own view of the preponderance of the
evidence.  Scott v. Scott, 354 S.C. 118, 124, 579 S.E.2d 620, 623 (2003).  “This,
however, does not require this Court to disregard the findings of the family
court.  Neither is this Court required to ignore the fact that the family court
judge, who saw and heard the witnesses, was in a better position to evaluate
their testimony.”  Murdock v. Murdock, 338 S.C. 322, 328, 526 S.E.2d 241, 245 (Ct. App. 1999).

LAW
/ ANALYSIS

I.  Return of Personal
Property

Husband argues the
family court lacked authority to order him to return the personal property
because the property was non-marital.  We disagree.

The family court has
the power to apportion marital property.  See S.C. Code Ann. § 20-7-472
(Supp. 2007).  Here, the family court did not find the personal property was
non-marital, but treated the property as though it was marital.  Furthermore, the
husband failed to raise this issue at trial or in his Rule 59(e), SCRCP,
motion.  This issue, therefore, is not preserved for review.  See Washington v. Washington, 308 S.C. 549,
551, 419 S.E.2d 779, 781 (1992) (holding when an appellant neither raises an
issue at trial nor through a Rule 59(e), SCRCP, motion, the issue is not preserved for appellate review).

II.  Valuation
of Personal Property

Husband argues the
family court’s valuation of the personal property was in error.  We disagree.

The family court is
charged with the duty of identifying real and personal
marital property and determining the property’s fair market value.  Abercrombie
v. Abercrombie,  372 S.C. 643, 647, 643 S.E.2d 697, 699 (Ct. App.
2007).  “In the absence of contrary evidence, the court should accept
the value the parties assign to a marital asset.”  Id. Moreover, a
property owner is competent to offer testimony as to the value of his property.
 Cooper v. Cooper, 289 S.C. 377, 379, 346 S.E.2d 326, 327 (Ct. App.
1986).  “A family court may accept the valuation of one party over another, and
the court’s valuation of marital property will be affirmed if it is within the
range of evidence presented.”  Abercrombie,  372 S.C. at 647, 643
S.E.2d at 699. 

Here, Wife
specifically testified and submitted an exhibit as to the value of the personal
property.  The family court’s valuation approximates the value of the property
Wife presented.  Accordingly, the family court did not err in valuing the
personal property. 

II.  Attorney’s Fees

Husband argues the
family court erred in awarding Wife $3,500 in attorney’s fees.  Specifically,
Husband argues the family court failed to set forth the factors the court
considered in awarding attorney’s fees. 

Rule
26(a) of the South Carolina Rules of Family Court requires the family court to
“set forth the specific findings of fact and conclusions of law to support the
court’s decision.”  Specifically, the family court should consider: (1) the
nature, extent, and difficulty of the services rendered; (2) the time
necessarily devoted to the case; (3) counsel’s professional standing; (4) the
contingency of compensation; (5) the beneficial results obtained; and (6) the
customary legal fees for similar services.  Glasscock v. Glasscock, 304
S.C. 158, 161, 403 S.E.2d 313, 315 (1991).   When the family court fails to set
forth findings relating to the award of attorney’s fees, however, the appellate
court may remand the matter or, where the record is sufficient, make its own
findings of fact in accordance with the preponderance of the evidence. Griffith v. Griffith, 332 S.C. 630, 646-47, 506 S.E.2d 526, 535 (Ct. App. 1998).  The family court’s award of attorney’s fees will not be
overturned absent an abuse of discretion.  Stevenson v. Stevenson, 295 S.C. 412, 415, 368 S.E.2d 901, 903 (1988).  

Here,
the record is sufficient for this Court to make the required findings of fact concerning
the award of attorney’s fees. Specifically, the record contains Wife’s attorney
fee affidavit.  See Bowers v. Bowers, 349 S.C. 85, 98-99,
561 S.E.2d 610, 617-18 (Ct. App. 2002) (holding the record was sufficient
for the appellate court to make sufficient findings of fact where the record
contained the wife’s attorney fee affidavit).  Accordingly, we find no abuse of
discretion in the award. 

AFFIRMED.

HEARN, C.J., PIEPER, JJ., and GOOLSBY,
A.J., concur.