Chestnut v. Chestnut

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

Ivery M. Chestnut, Appellant,

v.

Mashell Chestnut, Respondent.

Appellate Case No. 2016-001804

Appeal From Richland County
George M. McFaddin, Jr., Family Court Judge

Unpublished Opinion No. 2018-UP-473
Submitted September 19, 2018 – Filed December 19, 2018

AFFIRMED

Hemphill P. Pride, II, of Law Office of Hemphill P. Pride
II, LLC, of Columbia; and Gregory Samuel Forman, of
Gregory S. Forman, PC, of Charleston, for Appellant.

Daniel K. Felker, of Hucks & Felker, LLC, of Columbia,
for Respondent.

PER CURIAM: In this domestic relations matter, Ivery M. Chestnut (Husband)
appeals the family court's final divorce decree, arguing the family court erred in (1)
awarding Mashell Chestnut (Wife) $750 per month in permanent periodic alimony,
(2) finding Husband's premarital personal property was transmuted into marital
property, (3) awarding Wife one-half of the equity in the marital home, and (4)
awarding Wife $4,015.72 for attorney's fees. We affirm.

I. Alimony
Husband argues the family court erred in awarding Wife $750 per month in
permanent periodic alimony. We disagree.

"Permanent[] periodic alimony is a substitute for support [that] is normally
incidental to the marital relationship." Butler v. Butler, 385 S.C. 328, 336, 684
S.E.2d 191, 195 (Ct. App. 2009). "Alimony should ordinarily place the supported
spouse, as nearly as is practical, in the same position he or she enjoyed during the
marriage." Hinson v. Hinson, 341 S.C. 574, 577, 535 S.E.2d 143, 144 (Ct. App.
2000). The family court has a duty to formulate an alimony award that is "fit,
equitable, and just if the claim is well[-]founded." Allen v. Allen, 347 S.C. 177, 184,
554 S.E.2d 421, 424 (Ct. App. 2001).

In making an alimony award, the family court must consider the following
statutory factors: (1) the duration of the marriage; (2) physical and emotional health
of the parties; (3) educational background of the parties; (4) employment history and
earning potential of the parties; (5) standard of living established during the
marriage; (6) current and reasonably anticipated earnings of the parties; (7) current
and reasonably anticipated expenses of the parties; (8) marital and non-marital
properties of the parties; (9) custody of children; (10) marital misconduct or fault;
(11) tax consequences; (12) prior support obligations; and (13) any other factors the
court considers relevant. S.C. Code Ann. § 20-3-130(C) (2014).

We find the family court did not err in awarding Wife $750 per month in
permanent periodic alimony. See Stoney v. Stoney, 422 S.C. 593, 594, 813 S.E.2d
486, 487 (2018) ("[T]he proper standard of review in family court matters is de
novo[.]"); Id. at 595, 813 S.E.2d at 487 ("[D]e novo review allows an appellate court
to make its own findings of fact[.]"). At the time of trial, Husband was forty-nine
years old and Wife was forty-eight years old; and the parties were married for a
period of ten years. See § 20-3-130(C)(1). No children were born out of the
marriage, but each had three children of their own from previous relationships. See
§ 20-3-130(C)(9). The parties maintained a comfortable standard of living primarily
based on Husband's income. See § 20-3-130(C)(5). Husband's and Wife's financial
declarations listed the incomes and expenses for each party. Husband's financial
declaration indicated his income was $8,961 per month, which included his full-time
salary and retirement benefits. Wife's income was $1,580 per month, which included
wages from her part-time job as a bus driver and $250.00 in temporary spousal
support. See § 20-3-130(C)(6). Husband had monthly expenses totaling $6,737, and
Wife had monthly expenses totaling $2,176. See § 20-3-130(C)(7).

The family court found that even if Wife's income was doubled, it would leave
a great disparity in income between the parties. The family court noted that while
Husband's income had increased during the marriage, Wife's income remained the
same. This trend was due to the fact that Wife's part-time employment permitted
her to have a flexible schedule that was convenient for both parties' personal and
child care needs, as opposed to Husband's work schedule. The family court
acknowledged that Wife's income would not afford her the same standard of living
the parties were accustomed to during the marriage because "her expenses to
maintain a separate household [took] on a greater proportion of her income." The
family court awarded Wife fifty percent of the marital personal property, which the
parties stipulated was valued at $5,600. See § 20-3-130(C)(8). The family court
granted the divorce on the ground of one year continuous separation, attributing no
fault to either party, and ordered that the award of alimony would be deductible to
Husband and taxable to Wife. See § 20-3-130(C)(10), (11). Thus, upon our review
of both parties' financial declarations, monthly expenses, net monthly incomes, non-
marital property, and the statutory factors, we find that Wife has a need for alimony
and her alimony award is reasonable under the circumstances. See Stoney, 422 S.C.
at 595, 813 S.E.2d at 487 ("[D]e novo review allows an appellate court to make its
own findings of fact[.]"); see also McElveen v. McElveen, 332 S.C. 583, 599–600,
506 S.E.2d 1, 9 (Ct. App. 1998) (considering the wife's financial declaration and
monthly expenses in determining if the family court's alimony award was reasonable
under the circumstances of the case), disapproved of on other grounds by Wooten v.
Wooten, 364 S.C. 532, 615 S.E.2d 98 (2005).

Husband contends the family court failed to consider the financial obligations
arising from his son's college expenses and his other son's special needs.
Additionally, Husband maintains that the family court did not give proper weight to
"the employment history and earning potential of each spouse" and "the current and
reasonably anticipated earnings of both spouses." We disagree.

Husband listed the following in his financial declaration: "Work Related Day
Care," $400; "Children's incidental expenses," $300.00; "School lunches, supplies,
field trips, and fees," $ 400.00; and "College for Son," $500. One of the factors that
the family court must consider when determining an alimony award includes "the
overall financial situation of the parties, especially the ability of the supporting
spouse to pay." Patel v. Patel, 359 S.C. 515, 529, 599 S.E.2d 114, 121 (2004)
("Three important factors in awarding periodic alimony are (1) the duration of the
marriage; (2) the overall financial situation of the parties, especially the ability of
the supporting spouse to pay; and (3) whether either spouse was more at fault than
the other."). As such, the family court had to consider Husband's income and
expenses listed in his financial declaration to determine his overall financial position.
Nonetheless, after reviewing Husband's monthly expenses, which include expenses
for his son enrolled in college and disabled son, we find Husband has the ability to
pay, and the family court properly considered the parties' employment histories,
earning potential, and reasonably anticipated earnings. See Stoney, 422 S.C. at 595,
813 S.E.2d at 487 ("[D]e novo review allows an appellate court to make its own
findings of fact[.]"); Lewis v. Lewis, 392 S.C. 381, 384, 709 S.E.2d 650, 651 (holding
the appellate court may find facts in accordance with its own view of the
preponderance of the evidence).

Furthermore, there are additional factors that weigh in favor of awarding Wife
alimony. See Allen, 347 S.C. at 184, 554 S.E.2d at 452 (providing that in making an
alimony award "[n]o one factor is dispositive"); see also § 20-3-130(C)(13)
(providing the court should consider other factors that it finds relevant in making an
award of alimony). The parties were married for a period of ten years and during
the course of the marriage, Wife was a homemaker and caretaker of the parties'
respective children. Wife is currently employed in the same field of work as she was
during the course of the marriage, and her income is substantially lower than that of
Husband. Although Husband was the primary wage earner, Wife contributed ninety
percent of her income towards the family's expenses. Therefore, because the family
court analyzed the relevant statutory factors in determining its award, a review of
the record supports the findings of fact, and there is a vast income disparity between
Husband and Wife, we find the family court did not err in awarding Wife $750 per
month in alimony and the award is "fit, equitable, and just." See Allen, 347 S.C. at
184, 554 S.E.2d at 424; Bodkin v. Bodkin, 388 S.C. 203, 216–17, 694 S.E.2d 230,
237–38 (Ct. App. 2010) (finding award of alimony proper where husband was
primary wage earner and responsible for payment of majority of the marital bills,
wife was primary caretaker of parties' child and husband's children, and husband had
greater earning potential); Patel, 359 S.C. at 529–30, 599 S.E.2d at 121–22 (finding
award of alimony proper when husband was financially able to pay alimony award
and was highly educated and wife had a high school education and had been out of
work for more than 20 years); Ricigliano v. Ricigliano, 413 S.C. 319, 333, 775
S.E.2d 701, 709 (Ct. App. 2015) (finding husband was entitled to permanent periodic
alimony when husband's income was substantially lower than wife's income,
husband was living well below standard of living that he enjoyed during the
marriage, and wife was more educated than husband and maintained steady
employment, while husband's income fluctuated); See also Stoney, 422 S.C. at 595,
813 S.E.2d at 487 ("[D]e novo review allows an appellate court to make its own
findings of fact[.]").

II. Transmutation of Personal Property
Husband contends that the family court erred in finding premarital personal
property had been transmuted into marital property. Specifically, Husband argues
that Wife's mere use of the personal property is insufficient to support a finding of
transmutation. He claims the property is traceable and there was no intent to make
the property marital. We disagree.

Marital property is "all real and personal property [that] has been acquired by
the parties during the marriage and [that] is owned as of the date of filing or
commencement of marital litigation . . . regardless of how legal title is held." S.C.
Code Ann. § 20-3-630(A) (2014). "Equitable distribution of marital property 'is
based on the recognition that marriage is, among other things, an economic
partnership.'" Crossland v. Crossland, 408 S.C. 443, 456, 759 S.E.2d 419, 426
(2014) (quoting Morris v. Morris, 335 S.C. 525, 531, 517 S.E.2d 720, 723 (Ct. App.
1999)). Moreover, "[u]pon dissolution of the marriage, marital property should be
divided and distributed in a manner [that] fairly reflects each spouse's contribution
to its acquisition, regardless of who holds legal title." Id. (quoting Morris, 335 S.C.
at 531, 517 S.E.2d at 723).

Non-marital property may be transmuted into marital property if "[1] it
becomes so commingled with marital property that it is no longer traceable, [2] is
titled jointly, or [3] is used by the parties in support of the marriage or in some other
way that establishes the parties' intent to make it marital property." Wilburn v.
Wilburn, 403 S.C. 372, 384, 743 S.E.2d 734, 740 (2013). "Transmutation is a matter
of intent to be gleaned from the facts of each case. The spouse claiming
transmutation must produce objective evidence showing that, during the marriage,
the parties themselves regarded the property as the common property of the
marriage." Jenkins v. Jenkins, 345 S.C. 88, 98, 545 S.E.2d 531, 537 (Ct. App. 2001).
Evidence of transmutation "may include placing the property in joint names,
transferring the property to the other spouse as a gift, using the property exclusively
for marital purposes, commingling the property with marital property, using marital
funds to build equity in the property, or exchanging the property for marital
property." Johnson v. Johnson, 296 S.C. 289, 295, 372 S.E.2d 107, 111 (Ct. App.
1988). "The mere use of separate property to support the marriage, without some
additional evidence of intent to treat it as property of the marriage, is not sufficient
to establish transmutation." Id. at 295–96, 372 S.E.2d at 111.
In the present case, the parties stipulated that the value of the real and personal
property was as indicated on Husband's bankruptcy schedules, which were
introduced into evidence. The personal household property was valued at $5,600.
Husband disputes only $4,400 of the property that includes the living room, dining
room, and bedroom furniture. Husband maintains this furniture was purchased prior
to the marriage. A review of the record reveals there is conflicting testimony
regarding the furniture at issue. Initially, Husband testified that most of the items
inside of the home were destroyed during the fire, but he did not specify the items
that survived. According to Husband, the pieces of furniture destroyed in the fire
were items he owned prior to meeting Wife. In contradictory testimony, Husband
stated the furniture that was in the house at the time of trial was furniture the parties
had acquired during the course of the marriage.

Wife testified that when she moved into Husband's rented house she brought
furniture along with her. Wife acknowledged that Husband had "a house full of
furniture" when she moved in, but she provided either a twin or bunk bed for her
children to use. When the combined family moved into the house Husband
purchased, both parties took part in looking for and selecting new furniture for the
home. According to Wife, the furniture that was destroyed in the fire was the new
furniture that both she and Husband took part in selecting. Wife agreed that only a
few items survived the fire, but she did not specify which items.

As previously stated, it is undisputed that Husband used his insurance
proceeds to replace all of the furniture that was destroyed in the fire. However, it is
unclear when each item was replaced. Wife stated the family moved into the rebuilt
house thirty days prior to the actual marriage. She agreed that all of the items that
were destroyed in the fire were replaced. However, as the family court indicated,
there is no testimony in the record specifying when the items were replaced, i.e.,
while the house was being rebuilt, during the thirty-day window prior to the
marriage, or after the marriage. Thus, we find the household property was so
commingled that it transmuted into marital property. See Wilburn, 403 S.C. at 384,
743 S.E.2d at 740 (providing non-marital property can transmute into marital
property if it becomes so commingled with marital property that it is no longer
traceable). Furthermore, the household furnishings were purchased and used to
support the combined family of eight. We find a preponderance of the evidence
shows the parties treated the household furnishings in such a manner during the
marriage as to indicate their intent to make it marital property. See Johnson, 296
S.C. at 295, 372 S.E.2d at 111 (providing that using the property exclusively for
marital purposes is evidence that the parties regard the property as common
property); see also Lewis, 392 S.C. at 392, 709 S.E.2d at 655 ("Consequently, the
family court's factual findings will be affirmed unless appellant satisfies this court
that the preponderance of the evidence is against the finding of the family court.")
(internal quotation marks omitted); Stoney, 422 S.C. at 595, 813 S.E.2d at 487 ("[A]n
appellant has the burden of showing the appellate court that the preponderance of
the evidence is against the finding of the trial judge."). Furthermore, due to the
conflicting testimony regarding the acquisition of the furniture, we defer to the
credibility determination of the family court as it was in a superior position to
observe the parties and their demeanor. See McComb v. Conard, 394 S.C. 416, 422,
715 S.E.2d 662, 664–65 (Ct. App. 2011) ("The appellate court generally defers to
the findings of the family court regarding credibility because the family court is in a
better position to observe the witness and his or her demeanor.").

III. Equity in Marital Home

A. Transmutation

First, Husband contends there was insufficient evidence to support a finding
of transmutation of his premarital home. Specifically, Husband argues the family
court committed an error of law by relying on Wife's premarital contributions to
support a finding of transmutation. Husband cites Pittman v. Pittman, 407 S.C. 141,
151, 754 S.E.2d 501, 506 (2014), in support of this proposition.

In Pittman, our supreme court noted that it was an error of law for the family
court to rely on Wife's premarital contributions to Husband's business in support of
a finding of transmutation. Id. The Pittman court reiterated that a finding of
transmutation must have occurred after the date of the common law marriage. Id.
Nonetheless, the court affirmed the family court's transmutation finding, noting the
record revealed ample evidence to support a finding that the parties' actions during
the marriage manifested an intent for the business to be transmuted. Id.

Here, we acknowledge that the family court relied on contributions Wife made
during the engagement period, thus prior to the actual marriage. Specifically, the
family court took into consideration that the parties combined their families and
became a household of eight living in a three-bedroom home; both parties searched
for a bigger home to accommodate the combined family; and Wife was instrumental
in reworking the floor plan to add an additional bedroom when the house was rebuilt
after the fire.

However, there is other evidence in the record that demonstrates the parties
regarded the residence as the common property of the marriage. See Nasser-
Moghaddassi v. Moghaddassi, 364 S.C. 182, 190, 612 S.E.2d 707, 711 (Ct. App.
2005) ("Our broad scope of review does not relieve appellant of [his] burden to
convince [the] [appellate] [c]ourt [that] the family court committed error."); see also
Johnson, 296 S.C. at 295, 372 S.E.2d at 110 ("As a general rule, transmutation is a
matter of intent to be gleaned from the facts of each case."). Wife testified that a
large portion of her income was given to Husband to contribute to the family's
household expenses. See Hamiter v. Hamiter, 290 S.C. 508, 510, 351 S.E.2d 581,
582 (Ct. App. 1986) (providing funds derived from salary earned during the marriage
are marital property). Wife stated one of those expenses included the mortgage for
the residence at issue. Thus, Wife's marital funds were used to build equity in the
home. See Taylor-Cracraft v. Cracraft, 417 S.C. 570, 576, 790 S.E.2d 423, 426 (Ct.
App. 2016) (providing that using marital funds to build equity in the property is
evidence that the parties regarded the property as common property). Additionally,
Wife testified, and Husband agreed on cross-examination, that during the marriage
the house was referred to as "our home." In fact, Husband agreed that the term, "our
home," included Wife. See id. (providing that using the property exclusively for
marital purposes is evidence that the parties regarded the property as common
property). Therefore, we affirm the family court's finding of transmutation.

B. Equitable Distribution

Next, Husband maintains the family court erred in awarding Wife fifty percent
of the equity in the marital home. Husband contends the family court failed to
consider his premarital contribution. We disagree.

In making an equitable apportionment of marital property, the family court
must give weight in such proportion as it finds appropriate to the following factors:
(1) the duration of the marriage; (2) marital fault; (3) the value of the marital property
and the contribution of each spouse to the acquisition, preservation, depreciation, or
appreciation in value, including contributions as a homemaker; (4) the income and
earning potential of the parties and the opportunity for future acquisition of capital
assets; (5) the parties' health; (6) additional training or education needed; (7) the
parties' non-marital property; (8) the existence or non-existence of vested retirement
benefits; (9) the award of alimony; (10) the desirability of awarding the family home;
(11) tax consequences; (12) prior support obligations; (13) liens and any other
encumbrances upon the marital property; (14) child custody arrangements and
obligations; and (15) any other factors the court considers relevant. S.C. Code Ann.
§ 20-3-620(B) (2014). These criteria are intended to guide the family court in
exercising its discretion over apportionment of marital property. Johnson, 296 S.C.
at 297, 372 S.E.2d at 112. "The ultimate goal of [equitable] apportionment is to
divide the marital estate, as a whole, in a manner that fairly reflects each spouse's
contribution to the economic partnership and also the effect on each of the parties of
ending that partnership." King v. King, 384 S.C. 134, 143, 681 S.E.2d 609, 614 (Ct.
App. 2009).

As previously stated, the record reveals the parties were married for a period
of ten years, and upon Husband's demand, the parties separated in June of 2013. See
§ 20-3-620(B)(1), (2). Husband earned a majority of the parties' income throughout
the marriage, worked longer hours than Wife, and received retirement payments
along with his full-time salary. See § 20-3-620(B)(4), (8). Husband's earning
potential is much greater than Wife's, and while Husband's income increased
throughout the marriage, Wife's income remained substantially the same. See § 20-
3-620(B)(4). Wife worked part-time as a bus driver throughout the marriage, and
her flexible schedule was convenient for the family's child care needs. See § 20-3-
620(B)(3). Husband discouraged Wife from accepting employment opportunities
that would have increased her income. Nonetheless, Wife provided Husband with
90% of her income to contribute towards the family's household expenses—
including household bills, the mortgage, and furniture. See § 20-3-620(B)(3). Wife
used the remainder of her income to purchase gas to transport the parties' children to
and from school, groceries for the entire family, and anything else the children
needed.

We acknowledge that Husband obtained a VA loan to purchase the home
during the engagement period, thus prior to the marriage. See § 20-3-620(B)(3).
However, contributions to the acquisition, preservation, and appreciation of the
home are not limited to monetary value. Once Husband and Wife married, the
combined family of eight lived in the home for a period of ten years, during which
Wife performed homemaker duties contributing to the upkeep of the home. See Doe
v. Doe, 370 S.C. 206, 215, 634 S.E.2d 51, 56 (Ct. App. 2006) (noting it would be
unfair to the spouse who undertook household duties for the family court to
apportion the marital estate solely based on the parties' direct financial
contributions); see also Walker v. Walker, 295 S.C. 286, 288, 368 S.E.2d 89, 90 (Ct.
App. 1988) ("Equitable distribution is based on a recognition that marriage is, among
other things, an economic partnership."). Wife was also a caretaker of the six
children in the household. Specifically, Wife was instrumental in caring for
Husband's disabled son: she visited his school during her lunch break if he had
problems, participated in his educational development, showered and changed him
at school if he soiled himself, handled all of his paperwork and attended special
needs meetings. Additionally, as the family court noted, Husband refused to allow
Wife to take anything from the home and refused to allow Wife to use one of the
three vehicles at the residence once the parties separated, proclaiming that all the
items belonged to him. See § 20-3-620 (B)(15) (allowing the court to give weight
in such proportions as it finds appropriate to any other relevant factors enumerated
in the family court's order).

Furthermore, the total net value of the disputed property, including personal
and real, owned by the parties at divorce was $56,926. Husband has an earning
capacity and income of over $100,000 a year, and he received marital assets totaling
$28, 463. Wife has an earning capacity and income of $18,960 a year, she received
$23,465 in marital assets, and she was awarded $750 per month in permanent
periodic alimony. See § 20-3-620(B)(9). Based on our view of the preponderance
of the evidence, we find the fifty percent division of the martial residence is fair and
equitable. See Stoney, 422 S.C. at 595, 813 S.E.2d at 487 ("[D]e novo review allows
an appellate court to make its own findings of fact[.]"); King, 384 S.C. at 143, 681
S.E.2d at 614 ("The ultimate goal of [equitable] apportionment is to divide the
martial estate, as a whole, in a manner that fairly reflects each spouse's contribution
to the economic partnership and also the effect on each of the parties of ending that
partnership."); Johnson, 296 S.C. at 298–300, 372 S.E.2d at 112–13 (affirming a
50/50 division of the marital estate although the parties were married for one year
and most of the appreciation in the value of the parties' assets was attributable to
Husband's earnings and income because there were important equities weighing in
favor of Wife, such as the contribution of Husband's wages to the appreciation in
value of his non-marital property, Wife's contribution to the improvement of the non-
marital property, and Wife's role as a homemaker); see id. at 299, 372 S.E.2d at 113
("How the individual factor[s] [are] weigh[ed] depend[s] on the facts of each case.").
Therefore, we affirm the family court's apportionment of the marital home.

IV. Attorney's Fees
Husband argues Wife's attorney fee award should be reversed if this court
reverses the family court's decision. Because we affirm the rulings of the family
court, we also affirm the award of attorney's fees to Wife. See Rogers v. Rogers,
343 S.C. 329, 334, 540 S.E.2d 840, 842 (2001) ("[S]ince the beneficial result
obtained by counsel is a factor in awarding attorney's fees, when that result is
reversed on appeal, the attorney's fee award must also be reconsidered.").

AFFIRMED.1

LOCKEMY, C.J., and THOMAS and GEATHERS, JJ., concur.

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