709 S.E.2d 650 (S.C. 2011), 26973, Lewis v. Lewis

Docket Nº:26973.
Citation:709 S.E.2d 650, 392 S.C. 381
Opinion Judge:KITTREDGE, Justice.
Party Name:Roberta Hardy LEWIS, Petitioner, v. Joseph Terrell LEWIS, Respondent.
Attorney:Donald Bruce Clark, of Charleston, for Petitioner. Kevin M. Barth, of Ballenger, Barth and Hoefer, of Florence, and Marian D. Nettles, of Nettles Turbeville & Reddeck, of Lake City, for Respondent.
Judge Panel:BEATTY and HEARN, JJ., concur. TOAL, C.J., concurring in a separate opinion in which KITTREDGE, J., concurs. PLEICONES, J., dissenting in a separate opinion. Chief Justice TOAL. KITTREDGE, J., concurs. Justice PLEICONES.
Case Date:May 09, 2011
Court:Supreme Court of South Carolina
 
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Page 650

709 S.E.2d 650 (S.C. 2011)

392 S.C. 381

Roberta Hardy LEWIS, Petitioner,

v.

Joseph Terrell LEWIS, Respondent.

No. 26973.

Supreme Court of South Carolina.

May 9, 2011

Heard April 20, 2010.

Page 651

Donald Bruce Clark, of Charleston, for Petitioner.

Kevin M. Barth, of Ballenger, Barth and Hoefer, of Florence, and Marian D. Nettles, of Nettles Turbeville & Reddeck, of Lake City, for Respondent.

KITTREDGE, Justice.

[392 S.C. 384] In this divorce action, the Court granted a writ of certiorari to review two issues in the court of appeals' decision. Lewis v. Lewis, 2008-UP-645 (Ct.App.2008). The issues are: (1) the court of appeals' reversal of the family court's determination of the value of the marital home, and (2) the court of appeals' reversal and modification of the family court's award of expert witness fees to Petitioner. We reverse the court of appeals' decision and reinstate the family court's order.1

I.

Standard of Review

" In appeals from the family court, the appellate court has jurisdiction to find facts in accordance with its view of the preponderance of the evidence. However, this broad scope of review does not require this Court to disregard the findings of the family court." Eason v. Eason, 384 S.C. 473, 479, 682 S.E.2d 804, 807 (2009) (citations omitted). More recently, we held that " [a]n appellate court should approach an equitable division award with a presumption that the family court acted within its broad discretion. The family court's award should [392 S.C. 385] be reversed only when the appellant demonstrates an abuse of discretion." Dawkins v. Dawkins, 386 S.C. 169, 172-73, 687 S.E.2d 52, 54 (2010).

We take this opportunity to give historical context to the appellate court standard of review of family court factual findings.

A.

The myriad of modern cases setting forth an abuse of discretion as the standard of review in appeals from the family court may be traced to two common features found in our earlier jurisprudence concerning appeals in equity cases. The primary one is the familiar mantra that the appellate court is not required to disregard the findings of

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the trial judge who was in a superior position to make credibility determinations. The second concept is the tenet that de novo standard of review does not relieve an appellant from demonstrating error in the trial court's findings of fact. See Crowder v. Crowder, 246 S.C. 299, 301, 143 S.E.2d 580, 581 (1965) (citing Forester v. Forester, 226 S.C. 311, 85 S.E.2d 187 (1954)) (" It is now well settled that this court has jurisdiction in appeals in equity cases to find the facts in accord with our view of the preponderance or greater weight of the evidence, in the absence of a verdict by a jury; and may reverse a factual finding by the lower court in such cases when the appellant satisfies this court that the finding is against the preponderance of the evidence." ); Inabinet v. Inabinet, 236 S.C. 52, 55-56, 113 S.E.2d 66, 67 (1960) (citing Twitty v. Harrison, 230 S.C. 174, 94 S.E.2d 879 (1956)) (" Our duty in equity cases to review challenged findings of fact as well as matters of law does not require that we disregard the findings below or that we ignore the fact that the trial judge, who saw and heard the witnesses, was in better position than we are to evaluate their credibility; nor does it relieve appellant of the burden of convincing this court that the trial judge erred in his findings of fact." ); Gilbert v. McLeod Infirmary, 219 S.C. 174, 184, 64 S.E.2d 524, 528 (1951) ( " We have jurisdiction in appeals in equity to find the facts in accord with our view of the preponderance or greater weight of the evidence, in the absence of verdict by jury." ); Wise v. Wise, 60 S.C. 426, 449, 38 S.E. 794, 802-03 (1901) (McIver, C.J., dissenting and quoting [392 S.C. 386] Finley v. Cartwright, 55 S.C. 198, 33 S.E. 359 (1899)) (" Whatever differences of opinion may once have existed as to the rule which should govern where an appellant ... asks this court to reverse the findings of fact by the circuit judge in an equity case, it must now, since the decision in Finley v. Cartwright ... be regarded as settled ‘ that this court may reverse a finding of fact by the circuit court when the appellant satisfies this court that the preponderance of the evidence is against the finding of the circuit court.’ " ).

The family court is a court of equity. Article V, § 5 of the South Carolina Constitution provides in relevant part that our appellate jurisdiction in cases of equity requires that we " review the findings of fact as well as the law." This constitutional provision was adopted as article V, § 4 of the Constitution of 1895.2 Shortly thereafter, we interpreted this provision and held that " it may now be regarded as settled that this court may reverse a finding of fact by the circuit court [in a case of equity] when appellant satisfies this court that the preponderance of the evidence is against the finding of the circuit court." Finley, 55 S.C. at 202, 33 S.E. at 360-61. This language served as the forerunner to the often-quoted language that an appellate court may take its own view of the preponderance of the evidence, as included in the landmark standard of review case, Townes Associates, Ltd. v. City of Greenville: " In an action in equity, tried by the judge alone, without a reference, on appeal the Supreme Court has jurisdiction to find facts in accordance with its views of the preponderance of the evidence." 266 S.C. 81, 86, 221 S.E.2d 773, 775 (1976) (citing Crowder, 246 S.C. 299, 143 S.E.2d 580). Our standard of review, therefore, is de novo. Our modern day usage of the term " abuse of discretion" does not comport with our constitutionally authorized standard of review.3

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[392 S.C. 387]B.

The South Carolina family court was created in 1977 as part of the adoption of our unified judicial system.4 " All single county and multi-county family courts, juvenile courts, domestic relations courts, juvenile and domestic relations courts, shall be abolished on July 1, 1977, and the jurisdiction of such courts devolved upon the statewide family court system as established by this title." S.C.Code Ann. § 14-2-10 (Supp.2009); see also S.C. Const. art. V, § 1 (" The judicial power shall be vested in a unified judicial system, which shall include a Supreme Court, a Court of Appeals, a Circuit Court, and such other courts of uniform jurisdiction as may be provided for by general law." ).

Initially, the family courts operated with little statutory guidance and scarce case law. For example, approaches to alimony awards, the division of marital property, and the effect of marital misconduct on dissolution issues found incomplete guidance in the case law. Family court findings in the early years often reflected the court's attempt not only to find facts, but also to discern the law. As a result, appellate court decisions became the primary source of domestic relations law.

Because of the frequent interrelationship of fact and law, there were instances where we exercised our broad equitable standard of review and made findings of fact. When we [392 S.C. 388] reversed a family court's finding based on de novo review, we often said the family court " abused its discretion." See Shaluly v. Shaluly, 284 S.C. 71, 74, 325 S.E.2d 66, 67 (1985) (where the family court failed to make findings, this Court made its own findings and observed, " we have studied the record and listened to the arguments of counsel and reached the decision that the judge abused his discretion in failing to allocate the wife a more abundant portion of the property she helped to accumulate" ); Lide v. Lide, 277 S.C. 155, 158, 283 S.E.2d 832, 834 (1981) (weighing the evidence and concluding, " the trial judge abused his discretion in denying alimony to the wife" ).

Nevertheless, this Court and the court of appeals generally sustained (and continue to sustain) family court findings of fact, notwithstanding our constitutional imprimatur for de novo review. The tendency to affirm family court findings of fact may be traced to the two features noted above— the superior position of the trial judge to determine credibility and the appellant's burden to satisfy the appellate court that the preponderance of the evidence is against the finding of the trial court. See Wilson v. Wilson, 285 S.C. 481, 483, 330 S.E.2d 303, 304 (1985) (citing McAlister v. Patterson, 278 S.C. 481, 299 S.E.2d 322 (1982)) (" Although our scope of review allows us to find the facts in accordance with our view of the preponderance of the evidence, we give broad discretion to the family court judge who has observed the witnesses and is in a better position to judge their demeanor and veracity." ); Perry v. Perry, 301 S.C. 147, 149, 390 S.E.2d 480, 481 (Ct.App.1990) (citing Ray v. Ray, 296 S.C. 350, 372 S.E.2d 910 (Ct.App.1988)) (" The Court of Appeals has jurisdiction in a divorce case to find facts based on its own view of the preponderance of the evidence; however, it is not required to disregard the findings of the trial judge who saw and heard the witnesses and was in a better position to evaluate their testimony." ); Sealy v. Sealy, 295 S.C. 281, 283, 368 S.E.2d 85, 87 (Ct.App.1988) (finding the appellate court had " ample evidence to support the trial judge's finding" ).5

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Stated differently, [392 S.C. 389] de novo review neither relieves an appellant of demonstrating error nor requires us to ignore the findings of the family court. The presence of de novo review and a willingness, after review, to defer to the fact finder should not be viewed as contradictory positions.

C.

The tendency to sustain family court findings continued...

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