Brown v. Brown, 21917

• Citation: 302 S.E.2d 860,279 S.C. 116
• Decision Date: 04 May 1983
• Docket Number: No. 21917,21917
• Court: South Carolina Supreme Court
• Parties: Olive Jean BROWN, Respondent, v. Lloyd James BROWN, Appellant.

Page 860

302 S.E.2d 860

279 S.C. 116

Olive Jean BROWN, Respondent, v. Lloyd James BROWN, Appellant.

No. 21917.

Supreme Court of South Carolina.

May 4, 1983.

Victoria L. Eslinger, of Eslinger, Furr & Delgado, Columbia, for appellant.

Harvey L. Golden, Columbia, for respondent.

HARWELL, Justice:

Appellant alleges the family court erred, thereby requiring a reversal and remand of this case. We agree.

Appellant and respondent married in 1944 and divorced three years later. Subsequently, they remarried and lived together for twenty-seven years. They have two emancipated children.

Appellant, a high school graduate, is a retired Army Colonel. Respondent has a Master's degree. During the course of their marriage, respondent worked sporadically, in part due to the frequent moves required by appellant's career. At the time of the divorce hearing, respondent owned and operated a gourmet shop which appellant recently had purchased for her.

Appellant argues the court erred in granting respondent title to the marital domicile because she merely requested its exclusive use and possession. However, respondent requested that she be awarded an equitable interest in those assets titled in appellant's name. Appellant and respondent jointly owned the marital residence as tenants in common. Therefore, the court properly could consider it in the equitable distribution.

Next, appellant alleges that the court erred in awarding respondent title to all of the stocks, bonds, and funds jointly held by the parties as tenants in common. Respondent applied $60,000 of her inheritance towards the purchase of the stocks. In making an equitable distribution, the court may properly consider respondent's material contributions through inheritance and employment. Parrott v. Parrott, --- S.C. ---, 292 S.E.2d 182 (1982). We cannot conclude the trial court abused its discretion in this matter.

At the pendente lite hearing, the trial court directed appellant to pay $1850 temporary attorney's fees for respondent. Appellant did not appeal the temporary order, and, in fact, paid $1200 of the total sum. Now he alleges that he should not have to pay the remainder because the award was unconstitutional by virtue of Orr v. Orr, 440 U.S. 268, 99 S.Ct. 1102, 59 L.Ed.2d 306 (1979). We need not address the merits of appellant's argument because the issue of attorney's fees awarded under the unappealed order is not properly before us.

Appellant alleges the court made two errors concerning his military retirement fund. First, the court considered the fund as marital property and awarded respondent $400 a month from the fund in her equitable distribution. Recently, in Carter v. Carter, 277 S.C. 277, 286 S.E.2d 139 (1982) and Bugg v. Bugg, 277 S.C. 270, 286 S.E.2d 135 (1982), we held military retirement funds were not marital property subject to equitable distribution. Instead, we held the funds were income to the retired servicemen and were properly considered as a factor in determining alimony. We relied on McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981) in reaching that decision. Subsequently, the U.S. Congress enacted the Uniformed Services Former Spouses' Protection Act, 10 U.S.C.A. § 1001 et seq. to remove the effect of McCarty. The statute permits states to divide military retired pay as property between parties in a divorce. However, the final...