Avery v. Avery, 4147.

• Decision Date: 14 August 2006
• Docket Number: No. 4147.,4147.
• Citation: 634 S.E.2d 668
• Parties: Alice Ruth L. AVERY, Appellant/Respondent, v. Gerald W. AVERY, Respondent/Appellant.
• Court: South Carolina Court of Appeals

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.

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 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 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 this marriage. On the other hand, without objection by Husband, Wife contributed through her services as a homemaker. She also, for a period of time, assisted Husband in one of his business ventures serving as his bookkeeper/secretary. Wife also assisted in overseeing the building and selling of several homes during the marriage. Wife did physical work in and around the home and houses built for resale during the marriage and, as mentioned, maintained the home. Wife was frugal, buying most items "on sale." Husband indicated he completely trusted Wife's handling of finances during the marriage.

Despite the family court's recognition of Wife's contributions as a homemaker, the family court divided the marital estate in such a way that Husband received over one-and-a-half times the amount of property Wife received. Because the court specifically found neither party to be at fault for the couple's separation, this uneven division must have been based almost exclusively on the parties' direct financial contributions to their accumulation of wealth.

In our recent case of Doe v. Doe, 634 S.E.2d 51(S.C. Ct.App. 2006), which involved a marriage of over thirty years, we found the family court abused its discretion by awarding Husband seventy percent of the marital estate, despite Husband having been the primary breadwinner in the family. We stated: "While there is certainly no recognized presumption in favor of a fifty-fifty division, we approve equal division as an appropriate starting point for a family court judge attempting to divide an estate of a long-term marriage." Id. at 56 (citing Roy T. Stuckey, Marital Litigation in South Carolina (3rd ed. 2001 and Supp. 2005)). A fifty-fifty starting point is appropriate, we went on to explain, because in many long-term marriages, the spouses have an agreed-upon arrangement whereby one spouse works outside the home and is the primary wage earner while the other spouse makes little or no money but provides a valuable service in maintaining the household. Under these circumstances, "it would be unfair to the spouse who undertook household duties for the family court to apportion the marital estate solely based on the parties' direct...