Barr v. Barr

• Decision Date: 17 June 1985
• Docket Number: No. 0560,0560
• Citation: 287 S.C. 13,336 S.E.2d 481
• Court: South Carolina Court of Appeals
• Parties: Katherine H. BARR, Appellant, v. Thomas H. BARR, Respondent. . Heard

Page 481

336 S.E.2d 481

287 S.C. 13

Katherine H. BARR, Appellant, v. Thomas H. BARR, Respondent.

No. 0560.

Court of Appeals of South Carolina.

Heard June 17, 1985.

Decided Oct. 21, 1985.

Douglas N. Truslow, of Lewis, Lewis, Bruce & Truslow, Columbia, for appellant.

Robert N. Rosen, of Rosen, Oberman & Rosen, Charleston, for respondent.

CURETON, Judge:

In this divorce case the appellant wife appeals from provisions of the family court decree pertaining to the equitable distribution of the marital home. We affirm.

The wife raised five exceptions to the family court order, but has abandoned all but one either by not arguing them in her brief or by failure to assign error in the exceptions. Nienow v. Nienow, 268 S.C. 161, 232 S.E.2d 504 (1977) (failure to argue issue in brief deemed abandonment of exception); Bentrim v. Bentrim, 282 S.C. 333, 318 S.E.2d 131 (Ct.App.1984) (failure to raise issue in an exception constitutes waiver). See Supreme Court Rule 8, Section 2 and Supreme Court Rule 4, Section 6. A provision of an order neither excepted to nor raised in the brief is not properly before the court on appeal. Shipman v. DuPre, 222 S.C. 475, 73 S.E.2d 716 (1952). The only exception remaining is whether the trial court erred in finding that the cancellation by the husband's father of a mortgage encumbering the jointly owned marital home was intended as a gift solely to the husband which served to increase his distributive share in the home.

The marital home was purchased by the parties in 1975 for $35,000 and the assumption of a $28,000 mortgage held by the husband's father. The couple executed a $40,000 mortgage to finance part of the purchase price and to pay for improvements totaling $25,000. Shortly after the purchase, the $28,000 mortgage was cancelled. The written cancellation is evidenced only by the words, "Cancelled-Capers G. Barr, Jr.," written across the face of the mortgage. Both the husband and the father testified that prior to the time the parties purchased the marital home, the father agreed to forgive the mortgage. The fact that there was a delay of several months before the mortgage was, in fact, cancelled of record is unexplained. In any event, the father never demanded and the parties never made any mortgage payments. The husband and the father also testified that the forgiveness of the mortgage was intended as a gift solely to the husband. The wife's testimony regarding the nature of the forgiveness was as follows:

Q. You don't know, all right. Now it's true that Mr. Barr's father, Capers Barr, Jr., forgave a $28,000 mortgage on the Prince Street property, isn't that right?

A. Yes, sir.

Q. And that was a gift to Tom Barr, was it not?

A. I don't know that sir.

The trial judge found that the mortgage cancellation was intended as a gift by the father solely to the husband. At the time of the divorce the house was found to be valued at $83,000. After deducting the $40,000 mortgage and the $28,000 contribution by the father, the trial judge found that there was a net equity of only $15,000 to be equally divided between the parties.

The wife argues that the trial judge erred in concluding that the cancellation of the $28,000 mortgage was intended only for the husband's benefit. She reasons that because the property was jointly titled and the deed to the parties showed a joint assumption of the mortgage, the cancellation must be viewed as having been intended to benefit both parties. She further reasons that the father's testimony concerning his intent in cancelling the mortgage was inadmissible because it violates the parol evidence rule. We reject her argument.

The parol evidence rule has been defined as follows:

It is a general rule that parol or extrinsic evidence is not admissible to add to, subtract from, vary, or contradict judicial or official records or documents, or written instruments which dispose of property or are contractual in nature and which are valid, complete, unambiguous, and unaffected by accident or mistake.

32A C.J.S. Evidence Section 851 (1964). "Words in a release placed upon a recorded security instrument importing payment of the secured indebted are not a contract but constitute only prima facie evidence of payments and may be denied or explained by parol evidence." Ford Motor Credit Co. v. Parsons, 155 Ga.App. 46, 270 S.E.2d 230, 232 (1980) (emphasis added).

The father's testimony did not add to, subtract from, vary or contradict the written evidence concerning the father's intent because all of the documents were silent concerning whom the father intended to benefit. The parol evidence rule does not preclude the admission of evidence which tends to show the donative or other intent of the parties to a gift and "the donor may himself testify directly to his intent in the transaction." 38 C.J.S. Gifts Section 66 (1943); Cf. Dill v. Lumbermen's Mutual Insurance Co., 213 S.C. 593, 50 S.E.2d 923, 927 (1948) (The intention of any person which is a material fact to be proved can be proved by the direct testimony of such person regardless of whether he is a party to the action.)

The wife further argues that the value of the cancelled mortgage should not have been deducted from the gross equity in calculating her net equity. We disagree. We see the cancellation of the mortgage as a gift from the father of a portion of the purchase price of the house. A donor may forgive a debt due from the donee as a gift by various means including the execution of a release. 38 C.J.S. Gifts Section 47 (1943). It is not significant that the execution of the cancellation of the mortgage occurred several months after the father agreed to make the gift. Cf. Culpepper v. Culpepper, 18 Ga.App. 182, 89 S.E. 161 (1916) ("It is not in every case essential that the expression of the intention to give be synchronous with delivery of the chattel ...."); 38 C.J.S. Gifts Section 27 (1943).

The dispositive issue, therefore, is to whom was the gift of the mortgage intended. Both the husband and the father claim that the gift was made to the husband. The decision faced by the trial judge was whether to believe the husband's and father's testimony. We cannot say that the trial judge erred in doing so. Our duty to review challenged findings of fact in equity cases does not require us to ignore the fact that the trial judge, who saw and heard the witnesses, was in a better position to evaluate the credibility of those witnesses. Klutts Resort Realty, Inc. v. Down'round Development Corp., 268 S.C. 80, 232 S.E.2d 20 (1977).

We find, as did the trial judge, from the preponderance of the evidence that the gift was intended by the father to benefit the husband only. We are now faced with the question not yet answered by the appellate courts of South Carolina: whether a gift to one spouse during marriage retains its separate identity and thus is recognizable as separate property by a court upon divorce. Both appellate courts of this State have said that inherited property and property acquired in exchange for inherited property retain their separate character. Anderson v. Anderson, 282 S.C. 162, 318 S.E.2d 566 (1984); Hussey v. Hussey, 280 S.C. 418, 312 S.E.2d 267 (Ct.App.1984). By analogy we hold that a gift from a third party solely to one spouse should be treated the same as inherited property. See Uniform Marriage and Divorce Act, Section 307, some form of which has been adopted by several states. ¹ As a practical matter, however, we see no feasible way of characterizing the house, as apparently the trial court did, as being part separate and part marital property. The house is either marital property or it is separate property. We hold it is marital property.

Determining that the house is marital property does not preclude the distribution made by the trial judge in the instant case. An equitable distribution is not necessarily an equal one. The relative contributions of the parties is an...