Dawkins v. Dawkins

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

Alice Dawkins, Respondent,

v.

Steve Dawkins, Appellant.

Appeal from Cherokee County

Georgia V. Anderson, Family Court Judge

Unpublished Opinion No. 2007-UP-460

Submitted October 1, 2007 – Filed October 11, 2007

AFFIRMED IN PART; REVERSED IN PART; REMANDED

Richard H. Rhodes, of Spartanburg, for
Appellant.

William G. Rhoden and Usha J. Bridges,
of Gaffney, for Respondent.

PER
CURIAM:  In this domestic action,
Steve Dawkins (Husband) appeals the family court’s (1) apportionment of marital
property, (2) failure to provide Husband a special equity in the workers’ compensation
award and the marital home, (3) failure to award Dawkins Automotive to Husband in
the division of marital assets, and (4) award of attorney’s fees.  We affirm in
part, reverse in part, and remand.[1]

FACTS

The
parties in this divorce action were married in June 1980, and separated on
August 14, 2002.  During their twenty-two year marriage, Husband and Alice
Dawkins (Wife) acquired numerous rental properties and a business, Dawkins
Automotive.  Husband suffered an on-the-job injury in 1995 while employed with
John Montgomery Development and collected a $78,000.00 workers’ compensation award. 
He invested a substantial amount of those benefits in Dawkins Automotive.

Wife
filed this divorce action on September 10, 2002.  In her complaint, Wife prayed
for use of the marital home and the right to operate the family business
(Dawkins Automotive).  An emergency hearing addressing these concernments was
scheduled for October 10, 2002.  Husband filed an affidavit seeking to operate
the business and to gain access to the business records in Wife’s possession.

A
temporary order was entered on November 1, 2002, giving Wife control of the business
and directing her to account each week for business income and expenses.  The
order provided:  (1) Husband would make repairs on vehicles for the business,
and return them to Wife, who would sell them for Dawkins Automotive; (2) Wife would
furnish the tools and parts for Husband’s repair of the vehicles; (3) Husband
and Wife would agree upon a Certified Public Accountant (CPA) who would conduct
an audit, determine the money received, the automobiles sold, the expenses paid,
and the money disbursed; (4) Wonketia Dawkins (the parties’ daughter) would
manage and collect rent from the parties’ mutually owned rental properties and make
a monthly accounting; (5) Husband and Wife would make an accounting of rent collected
by either party prior to the order date; and (6) either party could petition
for relief from the terms of the order.

On
November 14, 2002, Husband filed an Answer and Counterclaim to Wife’s initial
Complaint requesting control over Dawkins Automotive and the business records
in Wife’s possession.  At a follow-up hearing held December 3, 2002, Husband
contended Wife failed to provide business records and was uncooperative with
the repair and sale of vehicles for Dawkins Automotive. 

An
order dated January 8, 2003, was issued:  (1) compelling the parties to present
receipts and expenses related to the rental properties, received since the date
of separation; (2) prohibiting the parties from accepting any rent or making
any payments on behalf of the rental properties; (3) requiring Wonketia Dawkins
to provide rental reports for November and December of 2002, as well as every
month thereafter, showing all rent received and all expenses paid; (4)
instructing the parties to produce a complete accounting of income and expenses
related to the sale of used cars, both personally and for Dawkins Automotive; (5)
commanding Husband to provide a written document on each car to be repaired to
Wife, listing the needed parts, where they can be purchased, and their approximate
cost; (6) dictating that Wife review the car repair documents with Husband and
either provide him with the parts or the funds to obtain the parts; (7)
directing the parties to give an inventory of all equipment in their respective
possessions; and (8) stating when either party receives the income tax refund
for 2001, provide it immediately to their attorney.

In
January of 2004, Husband filed a motion requesting the information previously
ordered by the court on January 8, 2003, and a hearing was held on January 29,
2004.  On February 10, 2004, a temporary order was issued expressing the family
court’s dissatisfaction with the extent of compliance with the prior order.  It
directed the parties to comply by providing: 

Each
asset must be reviewed separately as to income and expenses to properly
account.  Beginning August 18, 2002, both parties must therefore provide the
Court and the other party an accounting of each asset (by the name of the
asset) on which either has received income and all incurred expenses, supported
by receipts and cancelled checks.  This includes automobiles and real estate. 
Either party can then see what the other contends about a particular asset and
the Court can determine whether there has been a net gain or a net loss on any
particular asset.

Wonketia
Dawkins must provide by location of each rental property, an accounting of all
rent received and all expenses paid beginning November 1, 2002.  Again this
will allow the parties and the Court to view each asset separately and make a
determination of net gain or net loss.

Both
Plaintiff and Defendant must provide the other and this Court a list of all
vehicles in his/her possession on August 18, 2002 as well as any vehicles
acquired or sold subsequent to that date to include name of vehicles, to whom
sold, purchase price, sales price, expenses to repair and monthly payments, if
any.

All of
the aforesaid must be provided by the parties to their respective attorneys
within 10 days.  In addition Wonketia Dawkins is hereby named as a party
defendant and she is to be served with a copy of this Order and required to
comply with the accounting within 10 days after service.

After
Husband sought a Rule to Show Cause alleging Wife was not producing rental
information or other court ordered documents, Wife presented a voluminous box
of documents at a hearing on May 4, 2004.  From the hearing, a temporary order
was entered on June 14, 2004, continuing the hearing and stating that it
appeared Wife and Wonketia Dawkins complied with the prior order, and the
matter may be rescheduled if necessary.

On
October 5, 2005, the court held a status conference where it required Wife to
present within thirty days:  (1) index cards of paid out accounts for car sales;
(2) monthly reports filed with the South Carolina Tax Commission beginning with
September 2002; (3) a list of automobiles sold and their respective buyers for
the years of 2004 and 2005; (4) income and expense information on the rental
properties for 2004 and 2005; and (5) a composition book of Husband’s recorded
car sales, if available.  In addition, the court instructed Husband to provide an
accounting of the following within thirty days:  (1) maintenance proceeds; (2) rents
received from two of the rental properties; and (3) all car sales.

As a
result of Wife’s non-production of the documents outlined in the status conference,
Husband filed a petition requesting a Rule to Show Cause and the hearing was
held on December 15, 2005.  At the hearing, Wife presented a plethora of
documents purported to contain the information requested.  Under the assumption
the CPA would be able to find the necessary data to construct his report, the
hearing was continued by an order dated December 28, 2005.

On
December 19, 2005, Husband filed a Rule to Show Cause alleging Wife had not
complied with the prior orders of the court.  This petition was scheduled to be
heard at the final hearing on January 11, 2006.  A divorce decree was entered
on March 19, 2006, providing in relevant parts:

R.   Distribution List Follows.

The
marital properties and debts shall be divided pursuant to the list attached
hereto.  While the Plaintiff is to receive more than the Defendant, the
Plaintiff is taking responsibility for all the marital debt which is secured by
the properties that she is receiving.  The Court has considered the relative
fault in the breakup of the marriage as well as the Plaintiff’s earnest and
commendable efforts in maintaining the parties [sic] properties and good credit
during the pendency of this action.  Assets received by the Defendant are debt
free.  Further, the Plaintiff needs the assets that she will be receiving to
support herself in the future.  Both parties should cooperate in the signing of
any documents necessary to comply with the terms of this Order….

10.  The
Court finds that in regard to attorney [sic] fees both parties have contributed
to the prolonged contentiousness of this case.  However, the most significant
act, or failure to act was that of the Plaintiff in not timely producing the
September 2002 accounts receivable list with the supporting documentation.  The
Court finds that had this been done in a timely manner, this case may have very
well have been less expensive and been ready for trial earlier.  The Court
considers this factor in the request for attorney’s fees rather than as a
separate contempt issue.  The Plaintiff shall contribute $7,500.00 toward the
Defendant’s attorney’s fees within six months of the date of this Order paying
this directly to Mr. Thompson.  In consideration of his fault in the break up
of the marriage, [t]he Defendant shall contribute $3,000.00 toward the
Plaintiff’s attorney’s fees within six months of the date of this Order paying
this amount directly to Mrs. Bridges.  The remaining legal expenses shall be paid
the party incurring them.

Husband
filed a Motion for Reconsideration pursuant to Rule 59(e), SCRCP.  On May 18,
2006, an amended divorce decree was entered which modified the original order,
in relevant part: 

Page 11,
R.  Distribution List Follows.  The following paragraph should be substituted.

The
marital properties and debts shall be divided pursuant to the amended and
modified asset distribution list attached hereto, wherein the Plaintiff will be
receiving 60% of the marital assets, and the Defendant 40%.  The Court has
considered the relative fault in the breakup of the marriage, as well as
Plaintiff’s earnest and commendable efforts in maintaining the parties [sic] assets
and good credit during the pendency of this action.  Consideration has also
been given to the fact that Defendant’s real estate assets are all debt free,
while Plaintiff takes with hers a debt obligation of $140,937.  The only real
estate taken by Plaintiff lien free is the property occupied by the parties’
daughter, and for which neither party required the payment of rent prior to
their separation.

Additionally,
Plaintiff will have the right to operate the business known as Dawkins Auto
free of any claims by the Defendant.  To accomplish a final distribution, the
Plaintiff owes the Defendant $21,422.00, which is to be paid in full by July 1,
2007.

The
remaining requests by the Defendant to Alter and/or Amend are hereby denied,
and the March 19, 2006 order remains in full force and effect, except as herein
as modified.

ISSUES

1.
Did the family court err in
apportioning the marital property in a sixty/forty division, granting Wife sixty
percent of the marital estate?

 

2.
Did the family court err in denying
Husband a special equity in the workers’ compensation award and the marital
home?

 

3. 
Did the family court err by
allocating Dawkins Automotive to Wife when dividing the marital assets?

 

4.
Did the family court err by
instructing Husband to pay Wife $3,000 toward her attorney’s fee while only
awarding Husband $7,500 from Wife for his attorney’s fee?

STANDARD OF REVIEW

In
appeals from the family court, this court may find facts in accordance with its
own view of the preponderance of the evidence.  Nasser-Moghaddassi v.
Moghaddassi, 364 S.C. 182, 189, 612 S.E.2d 707, 711 (Ct. App. 2005) (citing Emery v. Smith, 361 S.C. 207, 213, 603 S.E.2d 598, 601 (Ct. App.
2004)).  However, this broad scope of review does not require this court to
disregard the family court’s findings.  Lacke v. Lacke, 362 S.C. 302,
307, 608 S.E.2d 147, 149 (Ct. App. 2005) (citing Bowers v. Bowers, 349
S.C. 85, 91, 561 S.E.2d 610, 613 (Ct. App. 2002)); Badeaux v. Davis, 337
S.C. 195, 202, 522 S.E.2d 835, 838 (Ct. App. 1999).  Nor must we ignore the
fact that the family court judge, who saw and heard the witnesses, was in a
better position to evaluate their credibility and assign comparative weight to
their testimony.  Scott v. Scott, 354 S.C. 118, 124, 579 S.E.2d 620, 623
(2003) (citing Woodall v. Woodall, 322 S.C. 7, 10, 471 S.E.2d 154, 157
(1996)).  However, our broad scope of review does not relieve the appellant of
the burden of convincing this court the family court committed error.  Nasser-Moghaddassi,
364 S.C. at 190, 612 S.E. 2d at 711 (citing Skinner v. King, 272 S.C.
520, 522-23, 252 S.E.2d 891, 892 (1979)).

DISCUSSION

1.  Equitable Division of
Marital Property

Husband
asserts the family court erred when apportioning the marital estate in a sixty/forty
split in favor of Wife.  We agree.  The appropriate division of property is a fifty/fifty
partition to each spouse.

The
apportionment of marital property is within the discretion of the family court
judge and will not be disturbed absent an abuse of discretion.  See Morris
v. Morris, 295 S.C. 37, 39, 367 S.E.2d 24, 25 (1988).  Section 20-7-472 of
the South Carolina Code (Supp. 2006) provides fifteen factors the family court
must consider, giving each weight as it determines.  These factors are:  (1) the
duration of the marriage, (2) any marital misconduct or fault and its effect on
the break-up of the marriage, (3) the value of marital property and the
contribution of each spouse in the acquisition, preservation, depreciation, or
appreciation, including the contribution of a homemaker, (4) the income and
earning potential of each spouse and opportunity for future acquisition of
assets, (5) the health, both physical and emotional, of each spouse, (6) the need
of either spouse for additional training or education, (7) the nonmarital
property of each spouse, (8) the existence or nonexistence of vested retirement
benefits for each spouse, (9) whether alimony has been awarded, (10) the desirability
of awarding the family home, (11) the tax consequence to each spouse as a
result of the apportionment, (12) the existence and extent of any support
obligations of either party, (13) any liens and encumbrances on marital and
separate property and other existing debts, (14) any child custody arrangements
and obligations, and (15) any other relevant factors as the trial court shall
expressly enumerate in its order.  S.C. Code Ann. § 20-7-472 (Supp. 2006).

On
review, this Court looks to the fairness of the overall apportionment, and if
the end result is equitable, the fact that this court might have weighed
specific factors differently than the family court is irrelevant.  Johnson
v. Johnson, 296 S.C. 289, 300-01, 372 S.E.2d 107, 113 (Ct. App. 1988); see Doe v. Doe, 324 S.C. 492, 502, 478 S.E.2d 854, 859 (Ct. App. 1996) (The
reviewing court will affirm the family court judge’s apportionment of marital
property if it can be determined that the judge addressed the relevant factors
under section 20-7-472 with sufficiency for the reviewing court to conclude the
judge was cognizant of the statutory factors.).

The
court may acknowledge the grounds for divorce when apportioning the marital estate. 
S.C. Code Ann. § 20-7-472(2) (Supp. 2006).  However, a severe penalty for fault
is prohibited:  “Although fault does not justify a severe penalty in making a
division of marital property, it is a factor the court may consider in
determining the equities between spouses.” Rampey v. Rampey, 286 S.C.
153, 156, 332 S.E.2d 213, 214 (Ct. App. 1985); Simmons v. Simmons, 275
S.C. 41, 44-45, 267 S.E.2d 427, 429 (1980).

While
there is no bright line rule, this Court suggests an equal fifty/fifty split of
marital assets as an appropriate beginning point for dividing the estate of a
long-term marriage.  Craig v. Craig, 358 S.C. 548, 557, 595
S.E.2d 837, 842 (Ct. App. 2004) (affirming fifty-fifty apportionment of the
marital estate in a twenty-seven-year marriage), aff’d by 365 S.C. 285,
617 S.E.2d 359 (2005); Doe v. Doe, 324 S.C. 492, 503, 478 S.E.2d 854,
859 (Ct. App. 1996) (finding a fifty-fifty apportionment appropriate where the
marriage lasted over thirty years); Harlan v. Harlan, 300 S.C. 537, 545,
389 S.E.2d 165, 170 (Ct. App. 1990) (upholding a fifty-fifty division of the
marital assets for an eighteen-year marriage); Smith v. Smith, 294 S.C. 194, 199, 363 S.E.2d 404, 407 (Ct. App. 1987) (preserving a
fifty-fifty split in a marriage of eighteen years); Leatherwood v.
Leatherwood, 293 S.C. 148, 150, 359 S.E.2d 89, 90 (Ct. App. 1987)
(approving a fifty-fifty apportionment of marital property after a twenty-two
year marriage).

In Doe
v. Doe, 370 S.C. 206, 215, 634 S.E.2d 51, 56 (Ct. App. 2006), the
family court partitioned the marital estate in a seventy/thirty proportion in
favor of the husband considering the wife’s marital misconduct.  Id. at 214, 634 S.E.2d at 55.  We found this division to be inequitable and
re-assigned the estate in a sixty/forty distribution.  Id. at 215, 634
S.E.2d at 56.  This Court elucidated:

In light
of the marriage’s longevity, our prohibition against imposing a severe penalty
for fault, and the family court’s erroneous consideration of Dr. Woodside’s
testimony, we find the family court abused its discretion when it awarded
Husband seventy percent of the marital estate.  We believe the more equitable
division would be sixty percent to Husband and forty percent to Wife.

Id. at 216; 634 S.E.2d at 57.  Doe is
distinguished from the present case because the wife’s marital misconduct
consisted of a twenty year adulterous relationship, resulting in a daughter.  Id. at 211, 634 S.E.2d at 54.  The wife led the husband to believe he fathered the
child when the biological father was actually the wife’s paramour, a longtime
family friend.  Id.

Widman
v. Widman, 348 S.C. 97, 557 S.E.2d
693 (Ct. App. 2001), upheld an equal division of the marital estate under
circumstances similar to the instant case.  In Widman, the court granted
the wife a divorce on the ground of adultery, ending a sixteen year marriage.  Id. at 108, 557 S.E.2d at 699. 

“In its
decree, the trial court found [the wife] to be in willful violation of the
court’s order for (1) failing to file proper financial declarations as previously
ordered, (2) disclosing information to [the husband’s] parents and adult
daughter regarding [his] prior adulterous conduct, and (3) intentionally
withholding the existence of a trust which was the subject of a motion to
compel.” 

Id.  The court applied the fifteen factors of South
Carolina Code section 20-7-472 (Supp. 2006) and found an equitable division of
property to be a fifty-fifty split between the parties.  Id. at 111, 557
S.E.2d at 700-701.

In
the case sub judice, the family court stated several facts
relevant to its equitable division of the marital estate.  The court considered
(1) Husband’s adulterous affair and its contribution to the break up of the
marriage, (2) Wife’s efforts in maintaining the assets and good credit during
the pendency of this action, (3) the liens and encumbrances on the property
allotted to each party, and (4) Wife’s future support needs.

The
overall distribution was sixty percent of the estate to Wife and forty percent
to Husband for a marriage which lasted twenty-two years.  We hold this distribution
is not equitable.  There is no evidence the family court considered the
duration of the marriage or Wife’s disregard of court orders.  Given the
fifteen factors in South Carolina Code section 20-7-472 (Supp. 2006), the
prohibition of severe penalty for fault, Rampey, 286 S.C. 153, 156, 332
S.E.2d 213, 214 (Ct. App. 1985); Simmons, 275 S.C. 41, 44-45, 267 S.E.2d
427, 429 (1980), and the trend in case law for an equal apportionment of
property, we reverse the family court’s sixty-forty split and hold a
fifty-fifty division is appropriate.

2.  Special Equity and
Characterization of Property as Marital v. Nonmarital

Husband
asserts the family court erred by not granting him a special equity in the
workers’ compensation award.  We disagree.  Next, Husband contends the family
court’s denial of special equity in the marital home was in error.  We agree.

a.  Special Equity

A
spouse may claim special equity in marital property, as set forth in South
Carolina Code section 20-7-471 (Supp. 2006):

During
the marriage a spouse shall acquire, based upon the factors set out in §
20-7-472, a vested special equity and ownership right in the marital property
as defined in § 20-7-473, which equity and ownership right are subject to
apportionment between the spouses by the family courts of this State at the
time marital litigation is filed or commenced as provided in § 20-7-472.

In Webber
v. Webber, 285 S.C. 425, 427-428, 330 S.E.2d 79, 81 (Ct. App. 1985), this
Court articulated:

Under
the special equity doctrine, “Where a wife has made a material contribution to
the husband’s acquisition of property during coverture, she acquires a special
equity in the property.”  Wilson v. Wilson, 270 S.C. 216, 241 S.E.2d
566, 568 (1978) (quoting 27B C.J.S. Divorce § 293 (1950)).  Therefore,
one spouse acquires a special equity in the property of the other if (1) the
property was acquired during coverture, (2) the spouse contributed to the
acquisition of the property, and (3) the spouse’s contribution was material.

To
acquire a special equity in nonmarital property, the property must appreciate
during marriage or the non-owner spouse must materially contribute to the
improvement of the property.  Webber, 285 S.C. at 428; 330 S.E.2d at 81
(citing Anderson v. Anderson, 282 S.C. 163, 318 S.E.2d 566, 567
(1984)).  The materiality of the contribution is not expressed in South
Carolina Code section 20-7-472(3) (Supp. 2006), which states the court should
examine “[t]he contribution of each spouse to the acquisition, preservation,
depreciation, or appreciation in value of the marital property, including the
contribution of the spouse as a homemaker; provided, that the court shall
consider the quality of the contribution as well as its factual existence” when
valuing and dividing property upon apportionment.  However, the statute directs
the court to look at the “quality” and “factual existence” of the
contribution.  Id. 

b.  Characterization of
Property as Marital v. Nonmarital

Section
20-7-473 of the South Carolina Code (Supp. 2006) defines marital property and
nonmarital property:

The term
“marital property” as used in this article 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 as provided in §
20-7-742 regardless of how legal title is held, except the following, which
constitute nonmarital property:

(1) 

property acquired by either
party by inheritance, devise, bequest, or gift from a party other
than the spouse;

 

(2)
property acquired by either
party before the marriage and property acquiring after the happening
of the earliest of (a) entry of a pendent lite order in a divorce or separate maintenance
action; (b) formal signing of a written property or marital settlement
agreement; or (c) entry of a permanent order of separate maintenance and
support or of a permanent order approving a property or marital settlement
agreement between the parties;

 

(3)
property acquired by either
party in exchange for property described in items (1) and (2) of
this section;

 

(4)  

property excluded by written
contract of the parties.  “Written contract” includes any antenuptial agreement
of the parties which must be considered presumptively fair and equitable so
long as it was voluntarily executed with both parties separately represented by
counsel and pursuant to the full financial disclosure to each other that is
mandated by the rules of the family court as to income, debts, and assets;

 

(5) 

any increase in value in nonmarital property, except to the extent that the increase resulted directly
or indirectly from efforts of the other spouse during marriage.

 

 
Interspousal
gifts of property, including gifts of property from one spouse to the other
made indirectly by way of a third party, are marital property which is subject
to division.

 

 
The
court does not have jurisdiction or authority to apportion nonmarital property.

Nevertheless,
circumstances in which nonmarital property may be transmuted into marital
property exist:  “Property, nonmarital at the time of its acquisition, may be
transmuted (1) if it becomes so commingled with marital property as to be
untraceable; (2) if it is titled jointly; or (3) if it 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.”  Johnson v. Johnson,
296 S.C. 289, 295, 372 S.E.2d 107, 110 (Ct. App. 1988) (citing Trimnal v.
Trimnal, 287 S.C. 495, 339 S.E.2d 869 (1986); Wyatt v. Wyatt, 293
S.C. 495, 361 S.E.2d 777 (Ct. App. 1987)); Wannamaker v. Wannamaker, 305
S.C. 36, 39, 406 S.E.2d 180, 182 (Ct. App. 1991).  “Transmutation is a matter
of intent to be gleaned from the facts of each case.”  Murray v. Murray,
312 S.C. 154, 157, 439 S.E.2d 312, 315 (Ct. App. 1993); Deidun v. Deidun,
362 S.C. 47, 57, 606 S.E.2d 489, 494-495 (Ct. App. 2004) (citing Jenkins v.
Jenkins, 345 S.C. 88, 98, 545 S.E.2d 531, 537 (Ct. App. 2001)).

The
obligation of proving a successful transmutation is on the spouse who is
claiming the property as marital.  Greene v. Greene, 351 S.C.
329, 338, 569 S.E.2d 393, 398 (Ct. App. 2002).  This evidentiary burden
consists of “objective evidence showing that, during the marriage, the parties
themselves regarded the property as the common property of the marriage.” Id.  The use of non-marital property in support of the marriage without intent to
treat or characterize the property as marital is not sufficient to establish
that the property was transmuted.  Id.

i.  Workers’ Compensation Award

Husband
alleges the family court erred in denying him special equity in the workers’
compensation award and the benefits should be characterized as nonmarital
property.  We disagree.

The
designation of the workers’ compensation award as marital property is supported
by Orszula v. Orszula, 292 S.C. 264, 356 S.E.2d 114 (1987), which held: 
“Wages clearly fall within [the statutory] definition.  We find no error in the
distribution of a substitute for wages.” Id. at 266, 356 S.E.2d at 114.

Special
equity is appropriate when a spouse acquires property during the marriage, or
when there is an increase in value of property attributable to the non-owner
spouse’s material contribution.  S.C. Code Ann. § 20-7-471 (Supp. 2006); Calhoun
v. Calhoun, 339 S.C. 96, 106, 529 S.E.2d 14, 20 (2000); Murray v.
Murray, 312 S.C. 154, 159, 439 S.E.2d 312, 316 (Ct. App. 1993). 

Husband
argues because the benefits were awarded for his disability and not as a
substitution of wages, they should be characterized as nonmarital property.  We
disagree.  Husband was granted the workers’ compensation award incident to his
injury while employed with John Montgomery Development in 1995.  This occurred
during his marriage and his benefits are marital property under both the
statutory definition in South Carolina Code section 20-7-473 (Supp. 2006) and
the characterization in Orszula. 

Husband
contends he should be granted a special equity in the workers’ compensation
award.  He relies on Cooksey v. Cooksey, 280 S.C. 347, 312 S.E.2d 581
(Ct. App. 1984), stating:  “Based on the reasoning in Cooksey, the
Husband should have been given an extra portion of the marital assets, because
had it not been for the Husband’s workers’ compensation award, the parties
would not have had the family business known as Dawkins Automotive.”  We
disagree.  Cooksey depicts a situation in which special equity was
awarded for an inheritance which was transmuted into marital property.  Id. at 352, 312 S.E.2d at 585.  Inheritances are nonmarital under the definition of South
Carolina Code section 20-7-471(1) (Supp. 2006), whereas workers’ compensation
awards are marital.  Orszula, at 266, 365 S.E.2d at 114.  Special equity
is not appropriate for Husband’s investment of marital property into the family
business of Dawkins Automotive.

We
find the Husband is not entitled to a special equity in the workers’
compensation award. 

ii.  Marital Home (532 McCluney Drive)

Husband
professes the family court erred in failing to find he was entitled to a
special equity in the marital home.  We agree.

Gifts
from parties other than one’s spouse during coverture are nonmarital in nature
and not subject to equitable division upon divorce.  S.C. Code Ann. § 20-7-743
(Supp. 2006); Canady v. Canady, 296 S.C. 521, 524, 374 S.E.2d 502, 504
(Ct. App. 1988) (holding an inter vivos gift may be transmuted
like inherited property) (citing Canady v. Canady, 289 S.C. 512, 347
S.E.2d 115 (Ct. App. 1986)).  However, nonmarital property may be transmuted
into marital property by commingling with marital property, titling it jointly,
or using it to support the marriage with the intent to characterize the
property as marital.  Canady, at 524, 374 S.E.2d at 504 (citing Wyatt
v. Wyatt, 293 S.C. 495, 361 S.E.2d 777 (Ct. App. 1987)).  The court must
examine the intent of the parties when nonmarital property is used in support
of the marriage.  Canady, at 524, 374 S.E.2d at 504 (citing Johnson
v. Johnson, 296 S.C. 289, 295, 372 S.E.2d 107, 110 (Ct. App. 1988)).

In
the case at bar, family court concluded 532 McCluney Drive was marital property. 
The issue was litigated and the court found the property was used in support of
marriage and the parties’ actions convey intent to treat it as marital:

The
Defendant’s mother, Cora Dawkins, purchased this land for investment/rental property
in 1987.  In 1988, the parties moved in to this home and paid rent/mortgage,
until December 1994, when Cora Dawkins deeded the property to Defendant for
$10.00 love and affection.  The Defendant did extensive remodeling to the home
over the years.  The parties agree that the home is now worth $71,000.00 and
that there is an outstanding mortgage of $49,566.00 (Plaintiff’s Exhibit Number
8 and Defendant’s Exhibit Number 36).  All payments were made from marital
funds prior to the separation and the Plaintiff has made the mortgage, tax and
insurance payments through the parties [sic] business account since the
separation.  The Court finds that this is marital property, that the Defendant
is not entitled to a special equity in this property and that there is
$21,434.00 equity subject to equitable distribution.

While not objecting
to the home’s characterization, Husband contends that the family court should
award him a special equity representative of the gift from his mother.  Cooksey
v. Cooksey, 280 S.C. 347, 312 S.E.2d 581 (Ct. App. 1984), supports the
Husband’s argument for a special equity.  In Cooksey, a transmutation of
inherited non-marital property into marital property did not extinguish the
inheritor’s right for special equitable consideration upon divorce.  This court
explicated:

Clearly,
Mr. Cooksey’s inheritance was commingled with and used as marital property.  We
find, therefore, that the family court properly included it in the marital
estate and subjected it to equitable distribution.  It does not follow,
however, that Mr. Cooksey was entitled to recoup none of his inheritance….

The
failure of the family court to consider restoring Mr. Cooksey’s inheritance to
him along with its failure to set forth facts upon which it based its finding that
he should not be “reimbursed” for it was error.  On remand, the court is to
make appropriate factual findings and legal conclusions as to whether Mr.
Cooksey is entitled to a special equitable consideration upon the distribution
of the marital assets based on his contribution of his inheritance.

Id. at 353, 312 S.E.2d at 585.

The initial
equity in the marital home was a gift to Husband by his mother with a value of
$25,000.00.  Although the gift was transmuted, transmutation did not extinguish
Husband’s right to receive a special equity upon divorce.  We find Husband is
entitled to a special equity upon the distribution of the marital assets based
on his contribution of the gift.

The
family court erred in denying Husband a special equity in the marital home.  We
reverse and hold Husband is entitled to a $25,000.00 special equity in the
marital home.

3.  Dawkins Automotive Award to
Wife

Husband
claims the family court erred in granting Wife control and ownership of Dawkins
Automotive.  We disagree.

Section
20-7-476 of the South Carolina Code (Supp. 2006) renders authority to the family
court to divide and sell property during the partitioning of a marital estate:

The
court may direct a party to execute and deliver any deed, bill of sale, note,
mortgage, or other document necessary to carry out its order of equitable
apportionment.  If a party so directed fails to comply, the court may direct
the clerk of court in the county in which the property involved is situate to
execute and deliver the document, and this performance by the clerk is as
effective as the performance of the party would have been.  The court in making
an equitable apportionment may order the public or private sale of all or any
portion of the marital property upon terms it determines.

The
court may utilize any other reasonable means to achieve equity between the
parties, which means are subject to and may not be inconsistent with the other
provisions of this article and may include making a monetary award to achieve
an equitable apportionment.  Any monetary award made does not constitute a
payment which is treated as ordinary income to the recipient under either the
provisions of Chapter 7 of Title 12 or, to the extent lawful, under the United
States Revenue Code.

Accordingly,
“[t]he family court has wide discretion in determining how marital property is
to be distributed.”  Greene v. Greene, 351 S.C. 329, 341, 569 S.E.2d
393, 400 (Ct. App. 2002) (citing Murphy v. Murphy, 319 S.C. 324, 329,
461 S.E.2d 39, 41-42 (1995)).  “Broad jurisdiction is granted family court
judges in matters of equitable distribution by Section 20-7-420, Code of Laws
of South Carolina (1976), and trial judges may employ any reasonable means to
effectuate an equitable division of the marital estate.”  Bass v. Bass,
285 S.C. 178, 182, 328 S.E.2d 649, 651 (Ct. App. 1985).

“If
possible, all issues between the parties should be resolved at [divorce] so
that disputes and irritants do not linger and present further incentives to
litigation.  The family court’s objective should be to dissolve the marriage,
sever all entangling legal relations and place the parties in a position from
which they can begin anew.” 

Johnson v. Johnson, 285 S.C. 308, 311, 329 S.E.2d 443, 445 (Ct. App.
1985).

The
family court in the instant case was acting within its discretion in dividing
assets between Husband and Wife.  Dawkins Automotive was distributed to Wife
incident to the apportionment of the marital assets.  This is consistent with Johnson’s
objective of severing all legal ties between Husband and Wife.  The family court
has the authority to decide which spouse receives which asset. 

4.  Attorney’s Fees

Husband
asserts the family court erred in awarding Wife $3,000.00 in attorney’s fees
and only awarding him $7,500.00 in attorney’s fees.  We disagree.

Authority
to award attorney’s fees in a divorce action is found in South Carolina Code section 20-3-130(H) (Supp. 2006):

The court, from
time to time after considering the financial resources and marital fault of
both parties, may order one party to pay a reasonable amount to
the other for attorney fees, expert fees, investigation fees, costs, and suit
money incurred in maintaining an action for divorce from the bonds of
matrimony, as well as in actions for separate maintenance and support,
including sums for services rendered and costs incurred before the commencement
of the proceeding and after entry of judgment, pendente lite and permanently.

An
award of attorney’s fees lies within the sound discretion of the family court
and will not be disturbed on appeal absent an abuse of discretion.  Patel v.
Patel, 359 S.C. 515, 553, 599 S.E.2d 114, 123 (2004); Bowen v. Bowen,
327 S.C. 561, 563, 490 S.E.2d 271, 272, (Ct. App. 1997).  The family court, in
determining whether to award attorney’s fees, should consider each party’s
ability to pay his or her own fees, the beneficial results obtained, the
parties’ respective financial conditions, and the effect of the fee on the
parties’ standards of living.  E.D.M. v. T.A.M., 307 S.C. 471, 476-477,
415 S.E.2d 812, 816 (1992).  In determining the reasonable amount of attorney’s
fees to award, the family court should consider the nature, extent, and
difficulty of the services rendered, the time necessarily devoted to the case,
counsel’s professional standing, the contingency of compensation, the
beneficial results obtained, and the customary legal fees for similar
services.  Glasscock v. Glasscock, 304 S.C. 158, 161, 403 S.E.2d 313,
315 (1991); see also Messer v. Messer, 359 S.C. 614, 633, 598
S.E.2d 310, 320 (Ct. App. 2004) (refusing to find an abuse of discretion as to
award of attorney’s fees when the family court analyzed each of the factors,
detailed its findings in its final order, and those findings were supported by
affidavits).

In this
case, the family court found both parties contributed to the prolongation and
contentiousness of this matter.  The family court held Wife’s untimely
production of documents warranted a $7,500.00 award of attorney’s fees to Husband. 
The family court recognized Husband’s fault in causing the breakup of the
marriage to be the controlling factor in its decision to grant Wife $3,000.00
in attorney’s fees.

We
find sufficient evidentiary support in the record to uphold the judge’s award
of attorney’s fees.  Accordingly, we hold the court did not abuse its
discretion in this instance.  See Robinson v. Tyson, 319 S.C. 360,
366, 461 S.E.2d 397, 400 (Ct. App. 1995) (no abuse of discretion in ordering
payment of attorney’s fees where record contains sufficient evidence to support
the award); Glasscock, 304 S.C. at 161, 403 S.E.2d at 315.

CONCLUSION

We
affirm the ruling of the family court in regard to:

1)
The characterization of the
workers’ compensation award as marital, subject to equitable
distribution without special equity;

 

2)
The grant of ownership of
Dawkins Automotive to Wife incident to the division of the marital
estate; and

 

3)
Attorney’s fees.

We
reverse the holding of the family court in reference to:

1)
The apportionment of marital
property in a sixty/forty split, holding a fifty/fifty division is
appropriate; and

 

2)
 The denial of Husband’s
special equity in the marital home, finding Husband is entitled to a
$25,000.00 special equity.

We
remand to the family court for re-division of the marital estate in accordance
with this opinion.

AFFIRMED IN PART, REVERSED
IN PART AND REMANDED.

ANDERSON and THOMAS, J.J.,
and CURETON, A.J., concur.

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