Kinsey v. Kinsey

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

Mark S. Kinsey, Respondent,

v.

Leecia B. Kinsey, Appellant.

Appeal From Lexington County

 Richard W. Chewning, III, Family Court
Judge

Unpublished Opinion No. 2012-UP-212

Heard October 5, 2011 – Filed March 28,
2012   

AFFIRMED

Thomas M. Neal, III, and Yulee E.
Harrelson, of Columbia, for Appellant.

C. Vance Stricklin, Jr., of West Columbia,
and Katherine Carruth Goode, of Winnsboro, for Respondent.

PER CURIAM: Leecia
B. Kinsey appeals the family court's equitable distribution of the marital
estate, including evidentiary issues and the family court's determination that
The Kinsey Corporation was not marital property.  We affirm.

1.  We find no error in the family court awarding
Husband 60% of the marital estate and Wife 40%.  See Doe v. Doe,
370 S.C. 206, 213-14, 634 S.E.2d 51, 55 (2006) (stating the appellate court
looks to the overall fairness of the apportionment, and it is irrelevant that
this court might have weighed specific factors set forth in Section 20-3-620(B)
of the South Carolina Code (Supp. 2011) differently than the family court); Fitzwater
v. Fitzwater, ___ S.C. ___, ___, 721 S.E.2d 7, 12 (Ct. App. 2011) (stating
while a 50-50 division is considered guidance for an appropriate division, it
is not mandatory).  The family court made detailed findings on each of the
factors set forth in section 20-3-620(B).  It emphasized at the hearing on
Wife's motion to alter or amend it did not rely on Wife's marital misconduct in
determining the division.  The family court also carefully considered the
parties' indirect and direct contributions, including that over the course of
the marriage, Husband earned 86.07% of the income while Wife earned 13.93%.  Wife
failed to meet her burden of proving the family court's division of the marital
estate was against the preponderance of the evidence.  See Lewis v.
Lewis, 392 S.C. 381, 392, 709 S.E.2d 650, 655 (2011) (stating the burden is
on the appellant to demonstrate the family court's findings are against the
preponderance of the evidence). 

2.  As to Wife's argument the family court erred
in admitting into evidence and relying upon evidence of Wife's paramour's
wealth, we find no reversible error.  See Divine v. Robbins, 385
S.C. 23, 37, 683 S.E.2d 286, 293 (Ct. App. 2009) (stating to warrant reversal
based on the admission or exclusion of evidence, the complaining party must
prove both error and resulting prejudice).  Although the family court allowed Husband
to testify as to what Wife told him was her paramour's net worth, the court
specifically stated at the hearing on Wife's motion to alter or amend and in
its order on the motion that wife's adultery and her paramour's wealth did not
affect its decision to divide the property 60-40.  We find Wife failed to
establish any prejudice from the admission of the evidence. 

3.  We
find no merit to Wife's argument the family court erred in finding she
abandoned the marital residence.  The family court did not consider desertion
as a fault ground for divorce.  In addition, Wife does not assert on appeal
that she is entitled to a credit due to Husband's decision to pay the mortgage
through the equity line.  We find no indication this statement affected the
family court's decision; thus, we find no error.  See McCall v.
Finley, 294 S.C. 1, 4, 362 S.E.2d 26, 28 (Ct. App. 1987) ("[W]hatever
doesn't make any difference, doesn't matter.").

4.  We find the family court did not err in
including in the marital estate the automobile Wife's son drove.  Wife does not
challenge the family court's valuation or allocation of the value of the
vehicle to her.  She only asserts the vehicle was not marital property.  Because
the vehicle was owned by Husband at the time of the commencement of this
action, it was marital property.  See S.C. Code Ann. § 20-3-630(A)
(Supp. 2011) (defining marital property as "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 . . .")
(emphasis added).  

5.  We find Wife's argument that the family court
erred in failing to require Husband to first utilize the money in the Kinsey
Rental Account for expenses associated with the parties' beach house before any
other marital funds were used is conclusory and therefore abandoned.  See Bennett v. Investors Title Ins. Co., 370 S.C. 578, 599, 635 S.E.2d 649,
660 (Ct. App. 2006) (finding appellants' abandoned issue where they failed to
cite any case law for a proposition and made only conclusory arguments in
support).

6.  We find Wife failed to support with authority her
argument the family court erred in giving Husband complete control for the
listing and sale of the parties' properties; thus, this issue is abandoned.  See Bennett, 370 S.C. at 599, 635 S.E.2d at 660 (finding appellants'
abandoned issue where they failed to cite any case law for a proposition and
made only conclusory arguments in support).  We furthermore find no error.  The
parties had already experienced difficulties reaching agreements in selling the
marital assets.  As the family court noted, both parties would benefit from
achieving the maximum price and neither party was motivated to sell the
properties for less than the maximum value.  We find Wife failed to meet her
burden of proving error.  See Lewis, 392 S.C. at 392, 709 S.E.2d
at 655 (stating the burden is on the appellant to demonstrate the family
court's findings are against the preponderance of the evidence). 

7.  We find Wife also failed to support with
authority her argument the family court erred in failing to order that the
money held in escrow be paid to the parties, and thereafter the parties be
required to pay proportionally toward expenses associated with the remaining
properties of the parties.  This issue is abandoned.  See Bennett,
370 S.C. at 599, 635 S.E.2d at 660 (Ct. App. 2006) (finding appellants'
abandoned issue where they failed to cite any case law for a proposition and
made only conclusory arguments in support).  In the alternative, given the
parties' histories, we find the family court did not err in putting in place a
mechanism to ensure the payment of marital debt until the assets could be sold See Lewis, 392 S.C. at 392, 709 S.E.2d at 655 (stating the burden is on the
appellant to demonstrate the family court's findings are against the
preponderance of the evidence). 

8.  We find the family court did not err in
holding The Kinsey Company had not been transmuted into marital property and
that Wife was not entitled to a special equity in the business.  See S.C.
Code Ann. § 20-3-630(A)(2) (Supp. 2011) (stating property acquired prior to the
marriage is generally considered nonmarital); S.C. Code Ann. § 20-3-630(A)(5)
(Supp. 2011) (stating marital property does not include "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"); Johnson v. Johnson, 296 S.C. 289, 295, 372 S.E.2d 107, 110-11 (Ct. App.
1988) (stating although nonmarital property may be transmuted into marital
property, the spouse claiming nonmarital property has been transmuted must
produce objective evidence showing the parties themselves regarded the property
as the common property of the marriage); id. at 295-96, 372 S.E.2d at
111 ("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.").  Husband formed The Kinsey
Company in 1994.  Wife never owned any stock in the corporation or served as an
officer.  Although The Kinsey Company significantly increased in value over the
course of the marriage, as the family court noted, Husband's efforts during the
late 1990's housing boom were the primary reason for the growth of the
company.  While Wife worked as the exclusive interior designer for The Kinsey
Company, she did this work through other companies where she was an employee
until forming her own company, Palmetto Interiors, in 2001.  The record
supports the family court's ruling Wife was sufficiently compensated for her
services to The Kinsey Company and Wife did not provide any benefit to the
company that could not have been obtained through another decorator.  See Arnal v. Arnal, 363 S.C. 268, 294, 609 S.E.2d 821, 835 (Ct. App. 2005)
(finding husband was not entitled to special equity interest where he was
compensated for work and his work amounted to very little time actually spent); Webber v. Webber, 285 S.C. 425, 429, 330 S.E.2d 79, 81 (Ct. App. 1985)
(holding evidence did not show wife's contribution to business was material
when she did not contribute funds to start the business and she did not
contribute very much uncompensated service to the business).  In addition, we
find no evidence Husband co-mingled marital funds with those from The Kinsey
Company.  Accordingly, we find Wife failed to prove Husband intended for The
Kinsey Company to be a marital asset. 

9.  We
find no merit in Wife's argument the family court erred in ordering her to
return certain items of personal property to the Edisto House.  The court did
not accuse Wife of "stripping" the house, but merely required her to
return marital property to the house unless the parties agreed otherwise.  Wife
contends the family court erred in granting relief not requested.  Because she
failed to raise this contention to the family court in her motion to alter or
amend, it is not preserved.  See In re Estate of Timmerman, 331
S.C. 455, 460, 502 S.E.2d 920, 922 (Ct. App. 1998) ("When a party receives
an order that grants certain relief not previously contemplated or presented to
the trial court, the aggrieved party must move, pursuant to Rule 59(e), SCRCP,
to alter or amend the judgment in order to preserve the issue for appeal.").

AFFIRMED.

HUFF,
PIEPER, and LOCKEMY, JJ.,  concur.