Bannen v. Bannen

Decision Date19 March 1985
Docket NumberNo. 0489,0489
PartiesGudrun G.A. BANNEN, Appellant, v. William J. BANNEN, Respondent. . Heard
CourtSouth Carolina Court of Appeals

David H. Wilkins, of Wilkins & Wilkins, Greenville, for appellant.

J.D. Todd, Jr., of Leatherwood, Walker, Todd & Mann, Greenville, for respondent.

SHAW, Judge:

The family court granted appellant Gudrun G.A. Bannen a divorce from respondent William J. Bannen, together with alimony, the marital residence, and attorney's fees. This appeal presents three issues: did the court err in (1) holding Mrs. Bannen does not have an equitable interest in Dr. Bannen's professional association, (2) ruling Mrs. Bannen is not qualified to testify as to the value of the business' property, and (3) determining alimony. We affirm in part, reverse in part, and remand.

In appeals from family courts we have jurisdiction to find the facts in accordance with our own view of the preponderance of the evidence. Mitchell v. Mitchell, 283 S.C. 87, 320 S.E.2d 706, 708 (1984); Townes Associates, Ltd. v. City of Greenville, 266 S.C. 81, 221 S.E.2d 773, 775 (1976). Questions regarding equitable distribution, admission of evidence, and alimony rest with the sound discretion of the trial judge, whose conclusion will not be disturbed absent a showing of abuse of discretion. Rogers v. Rogers, 280 S.C. 205, 311 S.E.2d 743, 744 (Ct.App.1984); Cudd v. John Hancock Mutual Life Insurance Co., 279 S.C. 623, 310 S.E.2d 830, 833 (Ct.App.1983); Smith v. Smith, 264 S.C. 624, 216 S.E.2d 541, 543 (1975).

Dr. and Mrs. Bannen married in Iceland in 1952 and settled in Simpsonville two years later. From 1954 to 1970 Mrs. Bannen was not only a mother to three children and homemaker, she was also an unpaid part-time receptionist, secretary, and bookkeeper in her husband's medical partnership. In 1980 Dr. Bannen formed a professional association. On July 3, 1980 Dr. Bannen conveyed his one-half interest in the real estate and medical office to the professional association. In 1979 and 1980 Dr. Bannen earned gross income of $71,000 and $74,000, but his first full year in the association his gross income fell to $58,000. In 1981 Dr. Bannen left the marital home.

I

Equitable distribution is based on a recognition that marriage is, among other things, an economic partnership. Upon dissolution of the marriage, property accumulated during the marriage should be divided and distributed in a manner which fairly reflects each spouse's contribution to its acquisition, regardless of which spouse holds legal title. Reid v. Reid, 280 S.C. 367, 312 S.E.2d 724 (Ct.App.1984).

We have held that an interest in a business may constitute marital property. Tucker v. Tucker, 282 S.C. 261, 317 S.E.2d 764 (Ct.App.1984); Reid v. Reid, supra. Likewise, one spouse's contribution of services to the other's business may create a special equity in the contributing spouse's favor. Poniatowski v. Poniatowski, 275 S.C. 11, 266 S.E.2d 787 (1980). However, classification and division of a spouse's interest in a professional association is a question of first impression in this state.

Unlike other business interests, ownership of shares in a professional corporation is restricted by law to duly licensed members of the profession concerned. See § 33-51-100, Code of Laws of South Carolina, 1976. Because of this restriction, Mrs. Bannen cannot be awarded an interest, legal or equitable, in Dr. Bannen's professional association. See Litman v. Litman, 93 A.D.2d 695, 463 N.Y.S.2d 24 (1983), aff'd. 61 N.Y.2d 918, 474 N.Y.S.2d 718, 463 N.E.2d 34 (1984). However, this statutory prohibition does not preclude consideration of the husband's interest in the professional association in reaching an equitable distribution of the marital estate.

There are persuasive reasons to include the value of Dr. Bannen's interest in the professional association in determining the value of the marital estate. Mrs. Bannen served as an unpaid secretary, receptionist, and bookkeeper for sixteen years while the practice was a partnership. Were it an ordinary corporation, she would be entitled to a special equity in her husband's interest in the business by virtue of this contribution of services. Reid v. Reid, supra. It would be inequitable to permit a change in the form of ownership of the medical practice to erase her contributions to its development or to destroy her right to have the value of those contributions considered in dividing the marital estate.

We, therefore, hold that in an action such as this, in which an equitable division is appropriate but distribution of an interest in a professional association would be contrary to law, the court, in lieu of granting the wife an interest in the professional association, should consider its value in valuing the marital estate and then make a distributive award equivalent to the wife's equity in the professional association from other assets of the marital estate. 1

Since the family court failed to consider the value of Dr. Bannen's interest in the professional association as part of the marital estate, we reverse the equitable distribution and remand for redetermination consistent with this opinion.

II

The court refused to allow Mrs. Bannen to testify as to the value of the professional association's property on the grounds she was neither an expert as to valuation nor the owner of the property. However, the Supreme Court has held persons who are neither experts nor owners are not on those bases alone precluded from testifying as to valuation.

It is universally recognized that opinion testimony of a non-expert who has sufficient knowledge of the value of the property in question, or who has had ample opportunity for forming a correct opinion of...

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23 cases
  • Kelley v. Kelley
    • United States
    • South Carolina Court of Appeals
    • October 21, 1996
    ...discretion of the trial court, whose conclusions will not be disturbed absent a showing of abuse of discretion. Bannen v. Bannen, 286 S.C. 24, 331 S.E.2d 379 (Ct.App.1985). An abuse of discretion occurs when the court is controlled by some error of law or where the order, based upon finding......
  • Casey v. Casey
    • United States
    • South Carolina Court of Appeals
    • March 25, 1986
    ...tangible assets.3 We also remind the bench and bar that some businesses may not be subject to division at all. Bannen v. Bannen, 286 S.C. 24, 331 S.E.2d 379, 381 (Ct.App.1985). ...
  • Woodside v. Woodside
    • United States
    • South Carolina Court of Appeals
    • September 17, 1986
    ...other party marital burdens beyond the norms to be expected in the marital relationship. As stated in the case of Bannen v. Bannen, 286 S.C. 24, 331 S.E.2d 379 (Ct.App.1985), marriage is an economic partnership to which both spouses contribute. When the conduct of one of the parties causes ......
  • Sharps v. Sharps
    • United States
    • South Carolina Supreme Court
    • August 14, 2000
    ...discretion of the trial court, whose conclusions will not be disturbed absent a showing of abuse of discretion. Bannen v. Bannen, 286 S.C. 24, 331 S.E.2d 379 (Ct.App.1985). An abuse of discretion occurs when the court is controlled by some error of law or where the order, based upon finding......
  • Request a trial to view additional results

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