Brunson v. Brunson

CourtCourt of Appeals of South Carolina
PartiesLois Burris Brunson, Appellant/Respondent, v. Dennis Dean Brunson, Respondent/Appellant.
Docket Number2007-UP-354
Decision Date16 July 2007

Lois Burris Brunson, Appellant/Respondent,
v.
Dennis Dean Brunson, Respondent/Appellant.

No. 2007-UP-354

Court of Appeals of South Carolina

July 16, 2007


Unpublished Opinion

Submitted May 1, 2007.

Appeal From York County Georgia V. Anderson, Family Court Judge

Thomas F. McDow, of Rock Hill, for Appellant/Respondent.

David C. Shea and John S. Nichols, both of Columbia, for Respondent/Appellant.

PER CURIAM:

In this domestic action, Lois Brunson (Wife) and Dennis Brunson (Husband) appeal the family court's order. Both parties assign numerous points of error, including the award of alimony, the equitable distribution of the marital assets, and the failure to award attorney's fees. We affirm in part, reverse in part, and remand.

FACTS

Wife and Husband married on March 9, 1986 and separated on October 18, 2002. Both parties had children from their previous marriages, but they had no children from their marriage. Wife brought a home into the marriage worth approximately $70,000 at the time they married, which had a mortgage of approximately $32,000. Wife also had a retirement account worth $12,000 at the time of the marriage. In 1993, when the account was worth $25,000, Wife withdrew the funds with Husband's knowledge and spent them on the family and improvements to the marital home.In 1998,with Wife's knowledge,Husband opened a "blow account," into which he deposited funds for his personal use.

During the marriage, Wife worked as manager of a credit union and earned approximately $34,000 per year. During her employment, Wife used Husband's and her daughter's name to secure several loans and obtained additional funds on already existing loans in their names. Much of the loan proceeds were used to finance a ski boat, a vehicle, a tractor, family vacations, to pay off credit cards, and for other family purposes.When the credit union learned of Wife's actions, she was fired.

In September 2003, Wife pled guilty, pursuant to a negotiated plea, to twelve charges of forgery, four charges of bank fraud, and one charge of breach of trust.Wife received concurrent sentences amounting to a ten-year sentence suspended upon five years probation.Prior to her guilty plea, she paid $30,000 in restitution, and at the time of the divorce decree, she still owed approximately $26,000 in restitution as well as $4,250 in fees.

Wife is currently employed at a salon and spa and has gross earnings of $1,163.72 per month and net earnings of $923.74.Husband continues to work at Duke Power. He has gross monthly earnings of $5,339, and after taxes and insurance premiums, he has net earnings of $3,045. He also receives mileage income and a yearly bonus.Wife settled a personal injury lawsuit for $32,500 prior to attorney's fees and medical bills, but at the commencement of litigation, Wife had yet to receive the proceeds. Husband received a workers' compensation settlement for $108,000 following the parties'separation.

On November 2, 2002, Wife filed a complaint requesting alimony, separate maintenance and support, equitable apportionment of the marital property, attorney's fees, and pendente lite relief.On December 11, 2002, the family court issued a temporary order declining to award alimony pendente lite. Further, the family court determined Husband would retain the use of the marital home but ordered him to pay Wife $300 per month as an unspecified advance for the use of her interest in the home.

Husband remained in the marital home until the summer of 2003, when he moved in with his girlfriend in North Carolina. In June 2004, Husband bought a home in North Carolina.Husband's son continued to reside in the marital home.Wife has lived with her mother since the parties'separation.On November 20, 2003,Wife filed a supplemental complaint requesting a divorce on the grounds of adultery and one year's continuous separation.

On February 9, 2005, the family court granted the parties a divorce based on one year's continuous separation.The family court awarded sixty percent of the marital estate to Husband and forty percent to Wife. The family court ordered the parties to sell the marital home, but itfound Wife had a special equity of $35,000 in the home.Additionally, the family court found each party should retain all of their respective personal injury awards.The remainder of the marital estate was valued at $21,195, although $2,100 of that value was debt.

Additionally, the family court classified the $300 monthly payment to Wife as alimony.The family court found Wife was entitled to continue receiving alimony until December 2005, explaining the award was both rehabilitative and lump sum and would enable her to maintain some stability during the next year while the property division was being accomplished and would also help her maintain health insurance. In addition,the family court determined each party should be responsible for their respective attorney's fees.Wife filed a Rule 59(e), SCRCP, motion for reconsideration, and the family court reaffirmed its order, making minor modifications.This appeal followed.

STANDARD OF REVIEW

On appeal from a family court order, this Court has authority to correct errors of law and find facts in accordance with its own view of the preponderance of the evidence. E.D.M. v. T.A.M., 307 S.C. 471, 473, 415 S.E.2d 812, 814 (1992). When reviewing decisions of the family court, we are cognizant of the fact that the family court had the opportunity to see the witnesses, hear "the testimony delivered from the stand, and had the benefit of that personal observance of and contact with the parties which is of peculiar value in arriving at a correct result in a case of this character." DuBose v. DuBose, 259 S.C. 418, 423, 192 S.E.2d 329, 331 (1972) (internal quotations omitted). When the evidence is conflicting and susceptible of different inferences, the family court has the duty of determining not only the law of the case, but the facts as well. Anders v. Anders, 285 S.C. 512, 514, 331 S.E.2d 340, 341 (1985); see also Woodall v. Woodall, 322 S.C. 7, 10, 471 S.E.2d 154, 157 (1996) (holding when evidence is disputed, the appellate court may adhere to the family court's findings).

LAW/ANALYSIS

I. Alimony

Wife contends the family court erred in awarding rehabilitative and lump sum alimony rather than permanent periodic alimony because the family court failed to make findings of special circumstances. Wife further argues the family court erred in awarding alimony of only $300 per month. Husband contends the family court erred in awarding Wife any alimony.

The amount of alimony, as well as a determination of whether the spouse is entitled to alimony, is within the sound discretion of the family court. Smith v. Smith, 264 S.C. 624, 628, 216 S.E.2d 541, 543 (1975). An abuse of discretion occurs when the decision is controlled by an error of law or is based on factual findings that are without evidentiary support. Degenhart v. Burriss, 360 S.C. 497, 500, 602 S.E.2d 96, 97 (Ct. App. 2004).

The purpose of alimony is to place the supported spouse, as close as is practical, in the same position of support as during the marriage. Johnson v. Johnson, 296 S.C. 289, 300, 372 S.E.2d 107, 113 (Ct. App. 1988). If the claim for alimony is well-founded, the family court has the duty of making "an alimony award that is fit, equitable, and just." Allen v. Allen, 347 S.C. 177, 184, 554 S.E.2d 421, 424 (Ct. App. 2001). The family court should consider the following factors in awarding alimony:

(1) duration of the marriage; (2) physical and emotional health of the parties; (3) educational background of the parties; (4) employment history and earning potential of the parties; (5)
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