Avery v. Avery, No. 4147.

CourtCourt of Appeals of South Carolina
Writing for the CourtHearn
Citation634 S.E.2d 668
PartiesAlice Ruth L. AVERY, Appellant/Respondent, v. Gerald W. AVERY, Respondent/Appellant.
Docket NumberNo. 4147.
Decision Date14 August 2006
634 S.E.2d 668
Alice Ruth L. AVERY, Appellant/Respondent,
v.
Gerald W. AVERY, Respondent/Appellant.
No. 4147.
Court of Appeals of South Carolina.
Heard June 14, 2006.
Decided August 14, 2006.

Page 669

James M. Saleeby, Sr., of Florence and Marian D. Nettles, of Lake City, for Appellant-Respondent.

Cheryl Turner Hopkins, of Florence and Stephanie Pendarvis McDonald, of Charleston, for Respondent-Appellant.

HEARN, C.J.:


This is a cross-appeal from an order of the family court, granting Alice Ruth L. Avery and Gerald W. Avery a decree of separate maintenance and support, declining to award alimony to Wife or attorney's fees to either party, and awarding Husband 62.5 percent of the $1.5 million marital estate. On appeal, Wife argues she is entitled to alimony, a larger portion of the marital estate, and attorney's fees. She also argues the family court's valuation of her jewelry and mink coat was inflated. Husband argues the family court failed to include certain funds in the marital estate and erred by including certain

Page 670

other funds. We affirm in part, reverse in part, and remand.

FACTS

After twenty-five years of marriage, Husband and Wife separated in February 2004. At the time of the final hearing, which took place on December 15, 2004, Husband was sixty-seven years old, and Wife was fifty-eight years old. The parties have no children together, though they have children from previous relationships. Husband has two adult daughters, both of whom have children. Wife has one forty-year-old daughter who is autistic and lives in a group home.

During the marriage, Husband worked as a chemical engineer and had management responsibilities. For much of his career he worked overseas in places such as Egypt, Pakistan, Saudi Arabia, China, and several countries in Europe. While he was out of the country, Husband sent his paychecks to Wife, and she was in charge of their financial affairs and maintaining the marital home. Wife has a business college degree, but with the consent of Husband, did not work outside the home for much of the marriage. In fact, her only job outside the home was working part-time for Husband's business, which she did only sporadically during the marriage. Together the parties amassed a large estate, totaling over $1.5 million.

In October of 2002, Husband had a heart attack, and he retired shortly thereafter. After Husband's retirement, the parties' relationship, which may already have had its difficulties, took a turn for the worse. Wife testified Husband belittled her family and was very controlling of her. In 2003, she suggested they get counseling, but Husband refused. Wife left the marital home because she "just couldn't take the constant bickering."

According to Husband, the couple's problems coincided with Wife's renewed friendship with an old friend, Gayle Britt. He testified that Wife spent more time with Gayle than she did with him. He also believed Wife's greed was a driving force behind the parties' separation. He testified that he wanted to reconcile with Wife, but when he suggested counseling, Wife would go only on the condition that Husband give her "half of the assets" in their vacation home in Beaufort, South Carolina.

On February 4, 2004, the parties had a serious argument, and Wife left the marital home. On February 9, Husband gave $89,000 to his children, purportedly to pay for his grandchildren's college education. Most of this money, $71,500, came from a money market account. On February 20, Wife filed a complaint seeking an order for separate maintenance and support.

At the final hearing, several issues were litigated. Wife sought alimony, a fifty percent division of the marital estate, and attorney's fees. She also argued that the money market account Husband divested just days before she filed her complaint should be included in the marital estate.

Husband argued Wife should not receive alimony because he was no longer earning an income. He also argued he was entitled to more than half of the marital estate because his contributions accounted for ninety-nine percent of the parties' assets. During the course of the litigation, Husband questioned how Wife had the money to add approximately $54,000 to a bank CD that was jointly titled between Wife and her aunt. Both Wife and her aunt testified that this deposit was made with the aunt's money. Husband, however, believed it was money Wife had siphoned off from the marital estate over the years, and he sought to have the money included in the marital estate. Husband also sought to include a checking account jointly titled to Wife and her aunt, which contained $64,000. Both Wife and her aunt testified this was also the aunt's money. The family court sided with Wife and her aunt as to both accounts, and declined to include the $54,000 bank CD or the $64,000 checking account in the marital estate.

As to the money market account with the $71,500 Husband gave to his children, Husband argued he inherited those funds when his mother died in 1999.1 The family court,

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however, included the $71,500 in the marital estate.

The family court specifically found neither party was at fault for the marriage's deterioration, but declined to award Wife alimony because Husband no longer earned an income. The family court also awarded Husband 62.5 percent of the marital estate and ordered the parties to pay their own attorney's fees. Both parties filed Rule 59(e) motions. In its order addressing those motions, the family court clarified how certain funds held in escrow were to be disbursed and otherwise denied both motions to reconsider. Both parties appeal.

STANDARD OF REVIEW

When considering an appeal from the family court, appellate courts have the authority to find the facts in accordance with their view of the preponderance of the evidence. Ex parte Morris, 367 S.C. 56, 61, 624 S.E.2d 649, 652 (2006). However, appellate courts defer to the family court judge's determinations of witnesses' credibility because the family court judge had the opportunity to see and hear the witnesses testify. Scott v. Scott, 354 S.C. 118, 124, 579 S.E.2d 620, 623 (2003).

LAW/ANALYSIS

I. Wife's Appeal

Wife argues the family court erred in (1) awarding her a mere 37.5 percent of the marital estate; (2) failing to award her alimony, especially in light of the lopsided equitable distribution; (3) valuing her jewelry at $40,000; (4) valuing her twenty-year-old mink coat at $8,000; and (5) failing to award her attorney's fees and costs. We address these issues in turn below.

A. Equitable Distribution

Wife argues the family court erred in awarding her 37.5 percent of the marital estate when this was a long-term marriage throughout which she provided homemaker services, and neither party was found to be at fault for the marriage's breakup. We agree.

The division of marital property is in the family court's discretion and will not be disturbed on appeal absent an abuse of that discretion. Craig v. Craig, 365 S.C. 285, 290, 617 S.E.2d 359, 361 (2005). Section 20-7-472 of the South Carolina Code (Supp. 2005) provides fifteen factors for the family court to consider when apportioning marital property, and it is within the family court's discretion to determine how much weight to give each of these factors. On appeal, even if this court might have weighed specific factors differently, we will affirm the family court's apportionment so long as it is fair overall. Greene v. Greene, 351 S.C. 329, 340, 569 S.E.2d 393, 399 (Ct.App.2002).

In making its decision to award Husband the bulk of the marital estate, the family court focused on the parties' financial contributions to the marriage. Specifically, the family court found:

It appears Husband has contributed 99%, or thereabouts, of the funds into...

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20 practice notes
  • Sochko v. Sochko, 2007-UP-082
    • United States
    • Court of Appeals of South Carolina
    • February 15, 2007
    ...will be affirmed on appeal if the valuation is within the range of values presented by the parties.” Avery v. Avery, 370 S.C. 304, 314, 634 S.E.2d 668, 673 (Ct. App. 2006) (citing Woodward v. Woodward, 294 S.C. 210, 215, 363 S.E.2d 413, 416 (Ct. App. 1987) (affirming the valuation of proper......
  • Funderburk v. Funderburk, 2018-001173
    • United States
    • Court of Appeals of South Carolina
    • December 8, 2021
    .... for an abuse of discretion." Id. The family court is charged with identifying marital property. See Avery v. Avery, 370 S.C. 304, 313, 634 S.E.2d 668, 673 (Ct. App. 2006) ("When making an equitable distribution of marital property, the family court is charged with identifying the marital ......
  • DiMarco v. DiMarco, Appellate Case No. 2017-000734
    • United States
    • Court of Appeals of South Carolina
    • June 24, 2020
    ...be affirmed on appeal if the valuation is within the range of values presented by the parties." Avery v. Avery, 370 S.C. 304, 313-14, 634 S.E.2d 668, 673 (Ct. App. 2006). Therefore, we remand for a hearing to calculate the present-day valuation of the accounts and to order their equitable d......
  • DiMarco v. DiMarco, 2020-UP-197
    • United States
    • Court of Appeals of South Carolina
    • June 24, 2020
    ...be affirmed on appeal if the valuation is within the range of values presented by the parties." Avery v. Avery, 370 S.C. 304, 313-14, 634 S.E.2d 668, 673 (Ct. App. 2006). Therefore, we remand for a hearing to calculate the present-day valuation of the accounts and to order their equitable d......
  • Request a trial to view additional results
20 cases
  • Sochko v. Sochko, 2007-UP-082
    • United States
    • Court of Appeals of South Carolina
    • February 15, 2007
    ...will be affirmed on appeal if the valuation is within the range of values presented by the parties.” Avery v. Avery, 370 S.C. 304, 314, 634 S.E.2d 668, 673 (Ct. App. 2006) (citing Woodward v. Woodward, 294 S.C. 210, 215, 363 S.E.2d 413, 416 (Ct. App. 1987) (affirming the valuation of proper......
  • Funderburk v. Funderburk, 2018-001173
    • United States
    • Court of Appeals of South Carolina
    • December 8, 2021
    .... for an abuse of discretion." Id. The family court is charged with identifying marital property. See Avery v. Avery, 370 S.C. 304, 313, 634 S.E.2d 668, 673 (Ct. App. 2006) ("When making an equitable distribution of marital property, the family court is charged with identifying the marital ......
  • DiMarco v. DiMarco, Appellate Case No. 2017-000734
    • United States
    • Court of Appeals of South Carolina
    • June 24, 2020
    ...be affirmed on appeal if the valuation is within the range of values presented by the parties." Avery v. Avery, 370 S.C. 304, 313-14, 634 S.E.2d 668, 673 (Ct. App. 2006). Therefore, we remand for a hearing to calculate the present-day valuation of the accounts and to order their equitable d......
  • DiMarco v. DiMarco, 2020-UP-197
    • United States
    • Court of Appeals of South Carolina
    • June 24, 2020
    ...be affirmed on appeal if the valuation is within the range of values presented by the parties." Avery v. Avery, 370 S.C. 304, 313-14, 634 S.E.2d 668, 673 (Ct. App. 2006). Therefore, we remand for a hearing to calculate the present-day valuation of the accounts and to order their equitable d......
  • Request a trial to view additional results

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