Allen v. Allen

• Decision Date: 29 October 2001
• Docket Number: No. 3398.,3398.
• Citation: 347 S.C. 177,554 S.E.2d 421
• Parties: Pamela G. ALLEN, Respondent, v. Floyd E. ALLEN, Appellant.
• Court: South Carolina Court of Appeals

347 S.C. 177

554 S.E.2d 421

Pamela G. ALLEN, Respondent, v. Floyd E. ALLEN, Appellant.

No. 3398.

Court of Appeals of South Carolina.

Submitted September 4, 2001.

Decided October 29, 2001.

Irby E. Walker, Jr., of Conway and Cynthia Graham Howe, of Van Osdell, Lester, Howe & Jordan, of Myrtle Beach, for appellant.

John L. Sherrill, of Sherrill & Janes, of Surfside Beach, for respondent.

HUFF, J.:

In this domestic action, Floyd E. Allen (the husband) appeals from several aspects of the family court's order, including: (1) inclusion of certain property in the marital estate for purposes of equitable distribution; (2) the court's award of alimony to Pamela G. Allen (the wife); (3) the court's order that he secure his equitable distribution and alimony obligations with a $200,000.00 life insurance policy; (4) certain factual determinations; and (5) the award of $22,500.00 in attorney fees to the wife. We affirm in part, reverse in part, and remand.

FACTUAL/PROCEDURAL BACKGROUND

The parties were married in September of 1963 at Fort Benning, Georgia. They have three children, all of whom are emancipated.

At the time of the marriage, the husband was 27 years old and the wife was 20. The husband was on active duty in United States Army and was a licensed optometrist. The wife had completed cosmetology school. After the marriage, the husband was stationed in Ethiopia, where the parties lived for approximately 18 months. Although the wife had a job opportunity in a beauty shop while in Ethiopia, she declined because she was pregnant at the time.

In 1965, the parties relocated to Conway, South Carolina where the husband began a private optometry practice, and he continued operating the business throughout the marriage. In addition, the husband entered the United States Army Reserves and eventually retired as a Colonel.

During the marriage, the wife was employed only sporadically. She worked for the husband for a brief period shortly after he began his private optometry practice. In the mid 1970's, the wife obtained a real estate license. She attempted to sell real estate on a full time basis for approximately one year, but she completed only one sale during that time frame. In the mid 1980's, the wife completed a nursing assistant's course. However, she never worked as a nursing assistant.

The husband left the marital home in November of 1993. The wife instituted this action in April of 1995 seeking, inter alia, a divorce on the ground of desertion, equitable distribution of marital property, and an award of alimony. The husband answered, denying the wife was entitled to a divorce on the ground of desertion.

By temporary order dated May 16, 1995, the family court granted the wife possession and use of the marital home, with the husband to be responsible for payment of all mortgage indebtedness, real estate taxes, and insurance payments on the home. The order also required the husband to pay the cost of providing the wife with automobile and health insurance. Further, the court awarded the wife $1,200.00 per month in alimony, and $4,000.00 in temporary attorney fees. Finally, the order provided the husband could continue making real estate transactions, as had been his practice during the marriage, so long as he made accountings to the wife.

In June of 1995, the wife petitioned the family court for a rule to show cause why the husband should not be held in contempt for failure to comply with the provisions of the temporary order concerning, inter alia, payment of attorney fees and mortgage expenses. The wife subsequently agreed to dismiss the rule. In July of 1995, the wife sought further temporary relief due to the husband's alleged failure to timely advise her of his intention to sell marital assets. By order dated July 19, 1995, the family court ordered the husband to deliver to the wife monthly accountings with details concerning sales of marital property. The court also required the husband to deliver to the wife copies of sales contracts contemporaneously with the execution of the contracts. As well, the order specifically provided the parties were to divide all net sales proceeds as per their agreement, or if no agreement was reached, the proceeds would be divided at the final hearing on the matter.

In September of 1995, the wife was diagnosed with breast cancer. As a result, in November 1995, the case was continued indefinitely by order of the family court.

The family court held a final hearing on August 6, 1998. At this hearing, the wife withdrew her plea for divorce, and instead sought an order of separate maintenance and support. By order dated July 13, 1999, the family court granted the wife an order of separate support and maintenance. The family court awarded the wife $2,000.00 per month in alimony, $22,500.00 in attorney fees, and a 40% interest in the marital estate, to which the court assigned a value of $1,220,078.17. In addition, the court ordered the husband to continue paying the wife's health insurance premiums until she reached 65 years of age, for which he would receive a credit toward his alimony payments. Finally, the court ordered the husband to maintain a $200,000.00 life insurance policy with the wife as beneficiary.

The husband moved for reconsideration. In a modified final order dated September 9, 1999, the family court ordered the husband to maintain the $200,000.00 life insurance policy to secure the award of alimony and equitable distribution to the wife. The court also instituted changes not pertinent to this appeal, but otherwise declined to grant the husband relief on his post-trial motion. This appeal followed.

STANDARD OF REVIEW

In appeals from the family court, the appellate court has authority to find the facts in accordance with its own view of the preponderance of the evidence. Rutherford v. Rutherford, 307 S.C. 199, 204, 414 S.E.2d 157, 160 (1992). However, this broad scope of review does not require us to disregard the findings of the family court. Stevenson v. Stevenson, 276 S.C. 475, 477, 279 S.E.2d 616, 617 (1981). Neither are we required to ignore the fact that the trial judge, who saw and heard the witnesses, was in a better position to evaluate their credibility and assign comparative weight to their testimony. Cherry v. Thomasson, 276 S.C. 524, 525, 280 S.E.2d 541, 541 (1981).

LAW/ANALYSIS

I. Predistributed Property

The husband first argues the family court erred in including in the marital estate $104,002.57 worth of property which was sold during the pendency of litigation. We agree.

During the pendency of this matter, the husband sold two of the parties' real estate investment properties. The parties agreed to divide the proceeds equally and that the proceeds "may be considered as an advancement of any equitable distribution award." Each party received approximately $52,000.00 from the transaction, and thereafter utilized the funds at their discretion.¹ The wife conceded it would be unfair for her to "share again" in the husband's $52,000.00 distribution.

Despite the prior distribution of the proceeds from the sales to the parties, and the parties agreed upon division of the assets, both the original and modified final orders include the value of the real estate transaction in the value of the marital estate. The court provided an award to the wife of $41,601.03 (40% of the total amount realized from the real estate transactions) and $62,401.54 (60% of the total) to the husband. The transactions were included in the modified final order despite the husband's inclusion of the issue in his motion for reconsideration and the family court judge's express intention to delete the real estate transactions from the marital estate. In a June 7, 1999, letter to the attorneys, the judge stated: "I did not include the [wife's] checking account as a marital asset due to the balance being derived from the advances made from real estate closings during the pendency of the action. I have also deleted the amount derived from the closings from [the husband's] business account as well."

Further, although the family court included the value of the real estate transactions in the marital pot, it did not require the parties to pay these previous distributions back into the pot. Indeed, the wife has apparently spent all but $4,000.00 of the $52,000.00 distribution to her. Thus, while the court effectively credited the wife with only 40% of the total $104,000.00 transaction, it did not require her to account for the full $52,000.00 that she actually received. The court ordered the husband to pay the wife an additional $27,600.39 to effect a 40% distribution to the wife, inclusive of these funds that had already been divided by the parties per their agreement. Thus, it appears the family court included the value of the real estate transactions in its final valuation of the marital assets, although this asset had already been divided. Moreover, we think the parties' agreement, as well as general notions of fairness, require that the case be remanded for redivision of the marital estate excluding the value of the real estate transactions.² Accordingly, we reverse so much of the order as includes these transactions, and remand the case for further proceedings as to this issue, consistent with this opinion.

II. Alimony

Next, the husband asserts the family court erred in awarding the wife $2,000.00 per month in alimony. More specifically, the husband contends the family court based its decision on erroneous and/or unsupported findings of fact and failed to impute any income to the wife. We find no error.

An award of alimony rests within the sound discretion of the family court and will not be disturbed absent an abuse of discretion. Williams v. Williams, 297 S.C. 208, 210, 375 S.E.2d 349, 350 (Ct.App.1988). "Alimony is a substitute for the support which is normally incident to the marital relationship." Johnson v. Johnson, 296 S.C. 289, 300, 372 S.E.2d 107, 113 ...