Buist v. Buist
| Decision Date | 06 June 2012 |
| Docket Number | Opinion No. 4982 |
| Parties | Katie Green Buist, Respondent, v. Michael Scott Buist, Appellant. |
| Court | South Carolina Court of Appeals |
Appeal From Abbeville County
Billy A. Tunstall, Jr., Family Court Judge
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED IN PART
Scarlet Bell Moore, of Greenville, for Appellant.
C. Rauch Wise, of Greenwood, for Respondent.
On appeal, Michael Buist (Husband) contests the family court's division of marital assets, arguing the family court failed to properly assess the fair market value of the marital property. In addition, Husband appeals the family court's decision to grant primary placement of the parties' minor child with Katie Buist (Wife). Moreover, Husband challenges the family court's determination of the visitation schedule and child support payments. Finally, Husband alleges the family court erred in failing to make the necessary findings of fact in awarding attorney's fees to Wife. We affirm in part, reverse in part, and remand in part.
Husband and Wife were married on April 10, 1999, and are the parents of one minor child, R.B., who was born on September 2, 1999. After marital difficulty, the parties separated in December 2007. The same month, Wife filed a complaint seeking, among other things, custody of the parties' child, child support, equitable division of the marital property, alimony, and attorney's fees and costs. Husband answered and counterclaimed, seeking custody of the parties' child, child support to be held in abeyance, title and possession of the marital home, and equitable division of the marital property.
After Husband and Wife amended their pleadings, the parties appeared before the family court on multiple occasions prior to the final hearing in this matter. On December 28, 2007, the parties entered into a temporary consent order, agreeing to joint custody of R.B. with primary placement of R.B. to be with Wife. The order also provided for reasonable and liberal visitation privileges to Husband. In addition, the temporary consent order provided that Husband continue to pay R.B.'s monthly school tuition directly to Wife and allowed Wife to retain possession of the marital home. Several months later, the parties returned to court and modified the temporary consent order to require Husband to pay the mortgage on the marital home, while being reimbursed for a portion of the mortgage by the Wife. In addition, the temporary consent order mutually prohibited the parties from "disposing, selling, transferring, destroying, or giving away any property of the marriagewithout the written consent of the other or by further Order" of the family court.
In June 2008, Husband and Wife returned yet again to family court. At this hearing, the parties agreed to grant visitation to Husband consistent with the standard visitation schedule. In its second temporary consent order, the family court appointed a guardian ad litem, imposed a mutual restraining order on the parties, and required the parties to attend family counseling. Wife subsequently moved for a rule to show cause after Husband encumbered marital assets and entered the marital home without Wife's permission and in violation of the restraining order. The family court found Husband in contempt for entering the marital home without Wife's consent and ordered him to pay Wife's attorney's fees for the hearing.
On November 25, 2008, Husband and Wife entered into a final consent order to address several financial matters. The parties agreed Husband would take possession of the marital home and pay Wife $31,500 for her share of the equity in the parties' home. The parties also agreed to the distribution of certain personal property, determined the Husband's IRA was marital property, and agreed Wife would be responsible for one-half of the balance for her plastic surgery. Additionally, in an order dated September 25, 2009, the family court granted the parties a divorce for "living separate and apart without cohabitation for a period of one year" pursuant to section 20-3-10(5) of the South Carolina Code (1976).
At the final hearing on November 5, 2009, the family court received testimony from the parties, their witnesses, and the guardian ad litem. After carefully weighing the evidence, the family court found "both parents love the minor child," but it concluded "the best interest of the child would be served for the current joint custodial situation to continue with primary placement being with [Wife], with liberal visitation to [Husband]." The family court also received into evidence financial documents pertaining to the parties' income and some evidence regarding the assets and debts of the marital estate, including Husband's business, Landscape Supply. In its decision to divide the marital estate, the family court awarded both real andpersonal property to each party; however, the family court did not properly value all of the assets and debts it awarded. In addition, the family court awarded Wife attorney's fees and costs.
On December 11, 2009, Husband timely filed a Rule 59(e), SCRCP, motion seeking to alter or amend the final order. The family court subsequently denied Husband's motion. This appeal followed.
On appeal from the family court, this court reviews factual and legal issues de novo. Simmons v. Simmons, 392 S.C. 412, 414, 709 S.E.2d 666, 667 (2011); Lewis v. Lewis, 392 S.C. 381, 386, 709 S.E.2d 650, 651-52 (2011). Although this court reviews the family court's findings de novo, we are not required to ignore the fact that the family court, which saw and heard the witnesses, was in a better position to evaluate their credibility and assign comparative weight to their testimony. Lewis, 392 S.C. at 385, 709 S.E.2d at 651-52. The burden is upon the appellant to convince this court that the family court erred in its findings. Id.
Husband asserts the family court improperly assessed the fair market value of the assets and debts of the parties and erred in dividing the property. Specifically, Husband contests (1) the valuation of the Highway 25 property; (2) the failure to include Landscape Supply as a marital debt; and (3) the failure to assign a specific value to all of the assets and debts of the marriage. We agree.
Section 20-3-620(B) of the South Carolina Code (Supp. 2011) provides that the family court must consider fifteen factors in apportioning the maritalestate and give each factor its proper weight.1 These criteria are intended to guide the family court in exercising its discretion over apportionment of marital property. Johnson v. Johnson, 296 S.C. 289, 297, 372 S.E.2d 107, 112 (Ct. App. 1988). Utilizing these fifteen factors, the family court must: (1) identify the marital property to be divided between the parties; (2) determine the fair market value of the property; (3) apportion the marital estate according to the contributions, both direct and indirect, of each party to the acquisition of the property during the marriage, their respective assets and incomes, and any special equities they may have in marital assets; and (4) provide for an equitable division of the marital estate, including the manner in which the distribution is to take place. Gardner v. Gardner, 368 S.C. 134, 136, 628 S.E.2d 37, 38 (2006).
Here, the family court failed to make the appropriate findings in apportioning the marital estate. The family court did not identify all the parties' marital property, but instead selectively divided certain real and personal property without determining the fair market value of all the property. In particular, the family court did not determine the fair market value of Landscape Supply, which constituted a considerable debt of the marriage. Moreover, the family court failed to determine the direct and indirect contributions of the parties to the acquisition of the marital property. It is unclear from our review of the record the value of the marital estate or the fairness of the overall apportionment. Additionally, counsel for both Husband and Wife conceded during oral argument that the family court never placed a value on Landscape Supply or the entire marital estate.
We, therefore, reverse the family court's division of the parties' marital property and remand the issue. In determining the property division, the family court shall identify all marital property and the contributions of each party consistent with the findings in this opinion. See § 20-3-620(B); see also Hardy v. Hardy, 311 S.C. 433, 436, 429 S.E.2d 811, 813 (Ct. App. 1993) (); Rowland v. Rowland, 295 S.C. 131, 132-133, 367 S.E.2d 434, 435 (Ct. App. 1988) ().
Husband contends the family court abused its discretion in granting primary placement of R.B. with Wife. In addition, Husband asserts the family court erred in modifying the visitation schedule and the method of making child support payments.
Husband argues the family court abused its discretion in awarding primary placement of R.B. to Wife. We disagree.
In a child custody case, the welfare of the child and what is in the child's best interest are the primary, paramount, and controlling considerations of the family court. Davis v. Davis, 356 S.C. 132, 135, 588 S.E.2d 102, 103-04 (2003). In determining the best interest of the child, the family court considers several factors, including: "who has been the primary caretaker; the conduct, attributes, and fitness of the parents; the opinions of third parties (including GAL, expert witnesses, and the...
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