Bostick v. Bostick, 5898

CourtCourt of Appeals of South Carolina
Writing for the CourtKONDUROS, J.
Decision Date09 March 2022
PartiesJosie M. Bostick, Appellant, v. Earl A. Bostick, Sr., Respondent.
Docket NumberAppellate Case 2019-000157,5898

Josie M. Bostick, Appellant,
v.

Earl A. Bostick, Sr., Respondent.

No. 5898

Appellate Case No. 2019-000157

Court of Appeals of South Carolina

March 9, 2022


Heard December 8, 2021

Appeal From Beaufort County Michèle Patrão Forsythe, Family Court Judge

John Ryd Bush Long, of John R. B. Long, PC, of Augusta, Georgia, for Appellant.

H. Grady Brown, III, and Bridget Hillebrand Norton, both of Brown & Norton, LLC, of Beaufort; and J. Michael Taylor, of Taylor/Potterfield, of Columbia, all for Respondent.

KONDUROS, J.

Josie M. Bostick (Wife) appeals several determinations by the family court in this divorce action. She maintains the family court erred in denying her motion for continuance when her counsel withdrew approximately one week before trial. Wife also contends the family court erred in finding a large percentage of the sale price of Earl A. Bostick, Sr.'s (Husband's) dental practice constituted personal goodwill and therefore was not a marital asset. Additionally,

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she argues the family court erred in finding she dissipated marital assets, in reducing her alimony award by a sizeable percentage from the temporary amount, and in awarding Husband $25, 000 in attorney's fees. We affirm in part, reverse in part, and remand.

FACTS/PROCEDURAL BACKGROUND

Husband and Wife married in 1971. Two children were born of the marriage. Both children were of majority at the time of the divorce. Husband operated a successful dental practice in two locations-one in Ridgeland, South Carolina, Earl Bostick, Sr., D.M.D. and Associates, P.A, and Sea Island Dentistry in Bluffton, South Carolina.[1] Wife worked primarily in the home for much of the marriage but also assisted as a receptionist at times for the dental practice. Additionally, Wife served as pastor for Whosoever Will Outreach Ministry (the Church). This service was the source of marital discord as Wife began spending more and more time at the Church. In particular, Wife spent time with another Church leader, Prophet Scottie Johnson, both at the Church and elsewhere. The parties discussed counseling but Wife was uncooperative. Eventually, Wife's time spent away from home and with Prophet Johnson created sufficient strain in the marriage that Wife filed for divorce in August of 2015. However, the time for proceeding with the case expired, and the action was dismissed. Wife filed for divorce again in January of 2017.

Prior to the problems in their marriage, Husband and Wife had been financially generous to their churches. For example, Husband and Wife loaned $100, 000 to make repairs and improvements to a church building that Wife had been given.[2]However, according to Husband's testimony, certain donations were not jointly made after the marriage began deteriorating. In 2014, Wife withdrew the entirety of one of her retirement accounts and gave it to the Church. In 2015, Wife made additional withdrawals from her retirement even though the marital home bills were being paid, she and Husband were taking an allowance from marital funds, and Wife had access to the parties' joint checking account. Wife's testimony was inconsistent as to how she spent this money. She claimed to have used it for living expenses as well as donating a large portion to the Church. Wife provided no documentation of these expenditures. As pastor, Wife had access and signatory privileges to the Church's bank funds.

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Wife filed for divorce a second time in 2017. In September of 2018, Husband sold his Ridgeland dental practice to the parties' son for $569, 000 plus $51, 113.15 in accounts receivable. Wife reviewed the contract of sale and agreed to its terms. The contract divided the sale price into two components: (1) $144, 860 for purchased assets and (2) $424, 140 for goodwill. Husband was retiring from the practice, which had previously borne his name, and the practice of dentistry altogether. After the sale, Husband was to be available for up to sixty days to assist with transitioning the practice which would be denominated Ridgeland Smiles, LLC. The sales contract also contained a covenant not to compete.

One week prior to trial, Wife's counsel requested to withdraw from representing Wife indicating he could no longer serve as her attorney out of "professional considerations." Wife's counsel asked for a continuance for Wife to obtain new representation, but the family court denied the request, noting Wife had engaged several attorneys over the course of the two years since the filing and had failed to comply with various scheduling orders. Wife secured new representation, and her new counsel appeared at the hearing, prepared to proceed although acknowledging the short timeframe for preparing Wife's case and the family court's previous ruling on the motion for continuance.

The parties had stipulated to a 50/50 division of the marital estate. However, there were several points of contention at trial including the division of the proceeds from the sale of the Ridgeland dental practice, alimony, and Wife's dissipation of two of her retirement accounts. The family court held the hard assets and accounts receivable components of the dental practice sale were marital assets to be divided 50/50. However, the family court concluded the goodwill component of the sales prices was a nonmarital asset because it was personal goodwill attributable to Husband's professional status pursuant to Moore v. Moore, 414 S.C. 490, 779 S.E.2d 533 (2015). Furthermore, after considering all the factors for alimony set forth by statute, particularly that Husband was 72 years old and was retiring, the family court reduced Wife's temporary alimony award from the temporary amount of $4, 000 per month to $500 per month.[3] Finally, the family court held Wife had dissipated the funds in her two retirement accounts and therefore counted $246, 771 against her share of the marital estate. The family court awarded Husband $25, 000 in attorney's fees, stating Wife could afford to pay the fees and her lack of

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diligence and cooperation in discovery protracted the litigation. This appeal followed.

STANDARD OF REVIEW

In appeals from family court, an appellate court reviews findings of fact and law de novo. Lewis v. Lewis, 392 S.C. 381, 392, 709 S.E.2d 650, 655 (2011). Nevertheless, this court recognizes the family court is in a superior position to make credibility determinations, and the appellant is not relieved of the burden to demonstrate error in the family court's findings. Id. The standard for reviewing a family court's evidentiary or procedural rulings is abuse of discretion. Stoney v. Stoney, 422 S.C. 593, 595 n.2, 813 S.E.2d 486, 487 n.2 (2018). "'An abuse of discretion occurs either when a court is controlled by some error of law, or where the order is based upon findings of fact lacking evidentiary support.'" Sellers v. Nicholls, 432 S.C. 101, 113, 851 S.E.2d 54, 60 (Ct. App. 2020) (quoting Patel v. Patel, 359 S.C. 515, 529, 599 S.E.2d 114, 121 (2004)).

LAW/ANALYSIS

I. Motion for Continuance

Wife argues the family court erred in failing to continue the family court hearing after permitting withdrawal of Wife's legal counsel. We disagree.

"A motion for a continuance is a procedural matter involving the progress of a case." Sellers, 432 S.C. at 113, 851 S.E.2d at 60 (citing Rule 40(i)(1), SCRCP). "The denial of a motion for a continuance 'will not be upset unless it clearly appears that there was an abuse of discretion to the prejudice of appellant.'" S.C. Dep't of Soc. Servs. v. Laura D., 386 S.C. 382, 385, 688 S.E.2d 130, 132 (Ct. App. 2009) (quoting Williams v. Bordon's, Inc., 274 S.C. 275, 279, 262 S.E.2d 881, 883 (1980)).

In Sellers, this court affirmed the denial of a continuance to the mother in a child custody case. 432 S.C. at 116, 851 S.E.2d at 61-62. In that case, the mother was represented by two attorneys, one who sought relief because the mother had failed to pay her fees and the second who was disqualified due to her becoming a witness in the case. Id. at 116, 851 S.E.2d at 61. Additionally, the mother signed a consent order seven days prior to the custody hearing indicating she would represent herself if new counsel could not be obtained. Id.

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Although Wife never consented to go forward in this case, she was represented at trial by competent counsel after having parted ways with multiple prior attorneys over the course of several years. The reason for the multiple changes in representation is not readily apparent from the record. However, Wife's last attorney indicated he could no longer represent Wife based on "professional considerations." This suggests any issue arose from within the attorney/client relationship with Wife as opposed to some outside force beyond Wife's control. Additionally, Wife had failed to comply with various scheduling orders, and the record demonstrates Wife was ably represented by her counsel and obtained certain beneficial results based on his representation. Based upon all the foregoing, we conclude the family court did not abuse its discretion in denying Wife's motion for continuance, nor was she prejudiced thereby. Accordingly, we affirm the family court's decision.[4]

II. Personal Goodwill and Husband's Dental Practice

Next, Wife contends the family court erred in finding a majority of the sale of Husband's Ridgeland dental practice constituted nonmarital, personal goodwill and was, therefore, not subject to equitable division. We agree.

In Moore, the supreme court recognized a business may contain two types of goodwill-enterprise, that attaching to the business itself, independent of any one individual, and personal, that attaching to the individual based on her skill and reputation. 414 S.C. at 511-12, 779 S.E.2d at 544. Moore adopted the viewpoint that enterprise goodwill is a marital asset subject to equitable division, while personal goodwill is a nonmarital asset belonging solely...

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