Arthur Wilson Roberts III v. Clarice Gibbons Roberts ., Opinion No. 2009-UP-190.

CourtCourt of Appeals of South Carolina
Writing for the CourtPER CURIAM:
PartiesArthur Wilson Roberts, III, Appellant, v. Clarice Gibbons Roberts, Respondent.
Docket NumberOpinion No. 2009-UP-190.
Decision Date05 May 2009

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED

PER CURIAM:

FACTUAL BACKGROUND


Husband and Wife were married on April 4, 1993, and had no children during their eleven-year marriage. Wife was 60 years old and Husband was 57 years old when the family court issued its final decree of divorce on July 26, 2006. Both parties were married prior to their marriage. Wife had two children from a previous marriage, whom she and Husband supported during their marriage.

In 1992, shortly before the parties' marriage, Husband purchased his siblings' interest in their late parents' home. The home was titled solely in Husband's name and Husband was responsible for the mortgage at all times, which he paid off during the course of the parties' marriage from his separate checking account. Wife made indirect contributions to the home by paying household expenses, cleaning, helping to remodel and update the home, taking out the trash, and doing yard work.

During their marriage, Husband and Wife maintained separate banking accounts into which their respective paychecks were deposited. Husband worked for Bi-Lo for approximately twenty-nine years and was an assistant manager for Bi-Lo during the majority of the parties' marriage. He left Bi-Lo and began working for his brother in Florida approximately a year after the parties separated. Wife has been working at the South Carolina Department of Transportation for approximately eighteen years, but she also currently works part-time for the South Carolina Credit Union. Before Husband stopped working at Bi-Lo in August 2004, his gross monthly income was $4,207.12 and Wife's gross monthly income was approximately $3,200.[1]

At the time of the final hearing, Wife was living at her sister's house because she claimed she could not afford to buy a house and pay her basic living expenses. Wife reasoned that while she was earning more than she earned during the marriage, due to the loss of Husband's income, Wife could not support herself in the same manner that she was accustomed to during their marriage.

PROCEDURAL HISTORY

On May 4, 2004, Husband instituted this divorce action, seeking separate maintenance and support, confirmation of property division, discovery, reimbursement alimony, and attorney's fees. Wife responded and counterclaimed, seeking a dismissal of the complaint, separate maintenance and support, equitable distribution of the property, discovery, alimony, and attorney's fees. The family court held a final hearing on March 30, 2006.

Husband was not present at the final hearing. Husband's counsel moved for a continuance citing Husband's "severe memory problems," but counsel acknowledged that there was no excuse for Husband's absence as counsel had notified Husband of the date of the hearing. The family court denied counsel's motion, but it gave Husband's counsel an opportunity to notify Husband of the court's decision to proceed with the hearing in Husband's absence.

Wife was the sole witness at the final hearing. Before Wife's testimony, Husband's counsel objected to any evidence on Wife's attorney's fees because Wife failed to respond to his discovery requests on the grounds of attorney-client privilege. The family court denied this motion. Subsequently, Husband's counsel attempted to introduce excerpts from Husband's deposition in response to Wife's testimony, which the family court did not allow. Husband's counsel then moved to alternatively strike any evidence that Wife testified to in reliance upon Husband's deposition, but the family court denied this motion and proceeded with the hearing.

Thereafter, on July 26, 2006, the family court issued a final decree of divorce and awarded the parties a divorce based on the statutory ground of one year's continuous separation. Finding the home, the 401(k), and the retirement accounts were marital property, the court divided the marital estate on a 50/50 basis. The family court awarded the home to Husband but allotted $97,264 from Husband's 401(k) account to Wife to effectuate an equal division of marital property. Wife retained exclusive ownership of her 401(k) and state retirement accounts and was awarded $353 per month in permanent periodic alimony. The family court also awarded attorney's fees to Wife in the amount of $12,568.02.

ISSUES ON APPEAL

Husband presents this Court with six grounds of error on appeal.

(1) The family court erred in denying Husband's motion for a continuance because it was presented with evidence that Husband failed to attend the final hearing on account of severe memory problems.

(2) The family court erred in excluding portions of Husband's deposition, which would demonstrate Husband failed to attend the hearing due to a mental infirmity, when the court had permitted Wife to testify from the same deposition.

(3) The family court erred in permitting Wife to offer evidence on her attorney's fees as she previously asserted in response to discovery requests that the fee evidence was attorney-client protected.

(4) The family court erred in awarding Wife permanent periodic alimony as none of the factors set forth in S.C. Code Ann. section 20-3-130(C) (Supp. 2008) justify an award of alimony to Wife.

(5) The family court erred in transmuting Husband's home into marital property because Wife failed to sustain her initial burden of establishing that the parties intended the home be transmuted into marital property.

(6) The family court erred in awarding Wife fifty percent of the marital estate because Husband made greater financial contributions during the marriage and each party maintained separate financial accounts.

STANDARD OF REVIEW

In appeals from the family court, this Court may find facts in accordance with its own view of the preponderance of the evidence. Nasser-Moghaddassi v. Moghaddassi, 364 S.C. 182, 189, 612 S.E.2d 707, 711 (Ct. App. 2005). However, this broad scope of review does not require this Court to disregard the findings of the family court. Id. at 189-90, 612 S.E.2d at 711. Nor can we ignore the fact that the family court, 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). Moreover, our broad scope of review does not relieve the appellant of the burden of proving to this Court that the family court committed error. Id.

LAW/ANALYSIS

I. Motion for Continuance

Husband first contends the family court erred in denying his counsel's motion for continuance due to Husband's absence at the hearing. We disagree.

Rule 40(i)(1), SCRCP, states: "As actions are called, counsel may request that the action be continued. If good and sufficient cause for continuance is shown, the continuance may be granted by the court." As stated in the Rules, a motion for continuance is discretionary with the family court, and we will not disturb its ruling on appeal absent an abuse of that discretion. Bridwell v. Bridwell, 279 S.C. 111, 112, 302 S.E.2d 856, 858 (1983).

In requesting a continuance, Husband's counsel stated that Husband had forgotten about the hearing and his absence was due to "severe memory problems which [] manifested themselves at several points in this case." Counsel explained that he had problems working with Husband and that Husband failed to bring several subpoenaed documents to his deposition on the grounds that he just "forgot" them. Husband's counsel also stated on the record that Husband was aware of the hearing as counsel had talked with Husband about the upcoming hearing several times during the preceding week. In opposing Husband's motion, Wife's counsel argued Husband's actions were typical of what Wife encountered throughout the case. Wife's counsel stated that Husband wanted "everyone to believe that he has some great mental, physical problem that is causing him to do these things. [But] [t]hat is not the case, and I think if he were here that would be pretty evident."

While Husband now argues that portions of his deposition testimony substantiate his claim that he suffered from a mental infirmity, Husband's counsel did not seek to introduce Husband's deposition to establish the mental infirmity issue when counsel argued for a continuance. Further, the only other testimony at the hearing regarding Husband's health was from Wife who testified that she did not believe Husband was in poor health. While her testimony was elicited after the court's denial of Husband's motion for a continuance, Husband's counsel did not seek to clarify Wife's testimony or question her on whether Husband suffered from any memory issues during their marriage.

Husband additionally argues that his memory issues are evidenced by his failure to remember important dates and subpoenaed documents at his deposition. However, Husband's presence at his deposition demonstrates that he was capable of remembering other key events involving the divorce litigation, and while Husband failed to bring the requested records, his excuse during the deposition was that "[he] didn't really read the subpoena. . . . [He] just saw it was a subpoena and [he] read down to, you know, the date." It is Husband's burden to convince this Court that he demonstrated good and sufficient cause for a continuance before the family court. See Shirley v. Shirley, 342 S.C. 324, 329, 536 S.E.2d 427, 429 (Ct. App. 2000) (stating that this Court's broad scope of review does not relieve the appellant of his burden to demonstrate that the family court's findings were in error). Because Husband failed to sustain this burden, we find the family court properly denied Husband's motion for a continuance.

II. Evidentiary Issues

Husband asserts that the family court committed two evidentiary errors, the first relating to the exclusion of Husband's deposition testimony and the second concerning the admission of...

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