Berry v. Berry

Decision Date17 September 1986
Docket NumberNo. 0809,0809
CourtSouth Carolina Court of Appeals
PartiesWilliam E. BERRY, Appellant-Respondent, v. Patricia C. BERRY, Respondent-Appellant. . Heard

Jefferson V. Smith, Jr., of Carter, Smith, Merriam, Rogers & Traxler, Greer, for appellant-respondent.

C. Dixon Lee, III, and James T. McLaren of Draine, McLaren & Lee, Columbia, for respondent-appellant.


In this divorce action both parties appeal certain aspects of the equitable division award. We affirm in part, reverse in part and remand.

The parties are in their early fifties and had been married for thirty years at the time they were divorced. Their two children are over eighteen years of age and are in college. The husband initiated this action for a divorce based upon the wife's adultery and prayed for an equitable division of all marital property. The wife admitted adultery and counterclaimed for equitable division of marital property, alimony and attorney fees.

The trial court granted the husband a divorce, barred the wife of alimony and attorney fees and divided the marital estate approximately fifty-six percent to the husband and forty-four percent to the wife. The trial judge found that those percentages approximate the parties' relative total contributions to the marital estate as testified to by the wife's expert witness. Both parties appeal the equitable division award.

The marital property consists of the marital home, a tract of land located on U.S. Highway 123 in Greenville on which is constructed several greenhouses and other improvements, another tract of land located on White Horse Road in Greenville, a floral business located in Spartanburg, stocks, household furnishings and other marital assets.


The husband first asserts that the division of marital assets was not equitable because he received overvalued assets. He claims that it was error for the trial judge to adopt the appraisal of the wife's expert witness regarding the Highway 123 and the White Horse Road properties. The wife's expert witness, Goldsmith, testified that the value of the husband's interest in the Highway 123 property was $415,000.00 while the husband's appraiser, Robinson, testified that his interest was worth only $315,000.00. Both experts testified that they determined the value of the "leased-fee estate", which is the interest the owner of the property now enjoys by first determining the present value of the rent to be received under the remaining term of the lease and adding to that the value of the reversionary interest in the land and improvements at the end of the term of the lease. The basic difference between the approaches used by the expert witnesses is that Goldsmith placed a value of $96,000.00 on the "leasehold interest" defined as the difference between "economic rent" or "fair rental value" and the rent stated by the lease for the remaining term of the lease, while Robinson testified that there was no "leasehold interest" to be valued. If the "leasehold interest" is eliminated, Goldsmith's appraisal would be $319,500.00, or virtually the same as Robinson's.

We hold that while appropriate in the proper case, consideration of a "leasehold interest" in this case was improper because the "leasehold interest", if any, is an asset of the lessee corporation, not the parties. See Hamilton v. Martin, 270 S.C. 223, 241 S.E.2d 569 (1978). Goldsmith in effect admitted this when he testified:

The tenant has the lease-hold interest, which is an interest in the real estate. He has the right to the enjoyment of the property, the use of the property during the life of the lease, plus the advantages of having a favorable lease.

As pertains to the lot on White Horse Road, the husband's appraiser testified that the fair market value of the lot was $11,000.00 and that it would cost $3,500.00 to remove a condemned building from the lot, leaving a net value of $7,700.00. On the other hand, the wife's appraiser testified that the lot was worth $21,124.00 even with the condemned building. The trial judge adopted the value placed on the property by the wife's appraiser, finding that he was more familiar with the area than the husband's appraiser. We find no error. A proper resolution of the factual issue here involved turns upon the weight to be afforded the testimony of the witnesses. Since the trial judge was in a better position to judge the credibility of the witnesses and the weight to afford their testimony, we defer to his judgment. Vance v. Vance, 287 S.C. 615, 340 S.E.2d 554 (Ct.App.1986).

The husband also argues that the trial judge awarded the wife too much property. The bulk of his argument is premised upon the assumption that the judge adopted the wife's expert's testimony in its totality. He argues first that in determining the wife's entitlement to equitable distribution, the trial court considered a "differential foregone" factor on the assumption that the wife lost income by not pursuing a business career. A review of the language of the decree shows that the husband misperceives its provisions. The decree simply does not show that the trial judge used the differential foregone factor in determining the wife's contribution to the marital estate. To the contrary, the trial judge makes it clear in the decree that he seriously doubted the validity of this aspect of the expert's analysis.

The husband next complains that the trial judge miscalculated the wife's indirect contributions to the marital estate. The gravamen of this complaint is that the trial judge gave too much credence to the testimony of the wife's expert on this point. We note again that the matter of judging the weight of evidence is ordinarily best left to the discretion of the trial judge and we will not disturb his determination unless abuse is shown. We find no abuse of discretion here.

We agree, however, with the husband's contention that the trial court appears to have awarded the wife a greater share in equitable distribution because he could not award her alimony. The particularly troublesome part of the decree reads:

Although it was the Respondent's adultery that precipitated this divorce action, no deduction has been made from her share by reason of her fault.... Were it not for the length of this marriage and the fact that Mrs. Berry is barred from alimony, I would have awarded her a substantially lower percentage of the marital property.

While it was proper for the trial judge to have disregarded the wife's fault, it was not proper for him to have increased her distributive share to make up for the alimony he could not award her. Fault may be used to decrease such an award, but never to increase it. See Rogers v. Rogers, 280 S.C. 205, 311 S.E.2d 743 (Ct.App.1984). Such an increase in an equitable distribution award is contrary to the public policy considerations manifested in the alimony barring statutes. Section 20-3-130, Code of Laws of South Carolina, 1976. We cannot determine from the record to what extent the award was increased due to the alimony consideration. Because we remand the equitable distribution award for further consideration by ...

To continue reading

Request your trial
11 cases
  • Calhoun v. Calhoun
    • United States
    • South Carolina Court of Appeals
    • February 17, 1998
    ...concerning the credibility of witnesses, we find the record supports the findings of the family court. Berry v. Berry, 290 S.C. 351, 350 S.E.2d 398 (Ct.App.1986). III. Equitable A. Valuation of Marital Home 1. Wife's Appeal The wife argues the family court erred in the valuation of the mari......
  • Johnson v. Johnson
    • United States
    • South Carolina Court of Appeals
    • March 14, 1988
    ...of filing or commencement of marital litigation, regardless of how legal title is held. Section 20-7-473; see also, Berry v. Berry, 290 S.C. 351, 350 S.E.2d 398 (Ct.App.1986), affirmed, 294 S.C. 334, 364 S.E.2d 463 (1988) (marital property is all property acquired during the marriage which ......
  • State v. Greenstreet
    • United States
    • Court of Special Appeals of Maryland
    • May 13, 2005
    ...205 Ala. 537, 88 So. 662, 664 (1921) (a party cannot establish the existence of a legal duty by mere admission); Berry v. Berry, 290 S.C. 351, 350 S.E.2d 398 (1986), aff'd, 294 S.C. 334, 364 S.E.2d 463 (1988) (court refused to accept husband's erroneous concession that wife's retirement pla......
  • Coppola v. Farina
    • United States
    • Connecticut Superior Court
    • August 15, 2006 resolved by ascertaining the intent of the donor." Pappas v. Pappas, supra, 300 S.C. at 64, 386 S.E.2d 301; see Berry v. Berry, 290 S.C. 351, 350 S.E.2d 398 (Ct. App.1986), aff'd, 294 S.C. 334, 364 S.E.2d 463 (1988); Johnson v. Herrin, 272 S.C. 224, 250 S.E.2d 334 The Pappas court had th......
  • Request a trial to view additional results
1 books & journal articles
  • § 13.02 Division of Property at Divorce
    • United States
    • Full Court Press Divorce, Separation and the Distribution of Property Title CHAPTER 13 The Divorce Action
    • Invalid date
    ...§ 751. Wisconsin: Wis. Stat. Ann. § 767.255. But see, Williams v. Williams, 4 Va. App. 19, 354 S.E.2d 64 (1987). See also, Berry v. Berry, 290 S.C. 351, 350 S.E.2d 398 (S.C. App. 1986).[164] See, e.g.: Arkansas: Ark. Stat. Ann. § 34-1214. Colorado: Colo. Rev. Stat. § 14-10-113. Delaware: 13......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT