Campbell v. Jordan
| Decision Date | 12 March 2009 |
| Docket Number | No. 4517.,4517. |
| Citation | 675 S.E.2d 801 |
| Court | South Carolina Court of Appeals |
| Parties | Donald Reese CAMPBELL, Respondent, v. Wendy L. JORDAN a/k/a Wendy Jean Lynch Jordan; Mary Alice Richardson; Elizabeth L. Langley a/k/a Elizabeth Ann Lynch and Harvey R. Campbell, Defendants, Of whom Wendy L. Jordan a/k/a Wendy Jean Lynch Jordan and Elizabeth L. Langley a/k/a Elizabeth Ann Lynch are the Appellants. |
David W. Keller and C. Pierce Campbell, of Florence, for Appellants.
John R. Chase, of Florence and Sarah Patrick Spruill, of Columbia, for Respondent.
Donald Campbell ("Donald") instituted this partition action against his two siblings, Mary Alice Richardson and Harvey Campbell, and his two nieces, Wendy Jordan and Elizabeth Langley ("the nieces"). After ruling that an in kind partition was appropriate, the special referee ordered that the real property be surveyed and subdivided. On appeal, the nieces claim the special referee erred in refusing to consider their emotional attachment to the property awarded to Donald, in refusing to strike certain testimony from the record, and in ordering the nieces' mother, Betty Jean ("Betty Jean"), to remove her mobile home from Donald's property. We affirm.
The subject property in this appeal consists of four parcels of land in Darlington and Florence Counties. The title to the property passed from Donald's father, the late Mr. Melvin Campbell Sr., to his widow and their six children1 upon his death on October 18, 1980. At this time, the children deeded the property to their mother for life, while retaining their respective remainder interests upon her death. Mrs. Campbell later died intestate and her interest passed to her children in equal shares. Through a series of transfers, the property was owned in the following percentages when Donald instituted this partition action: Mary Alice Richardson, 11/36; Harvey Campbell, 11/36; Donald Campbell, 8/36; Wendy Jordan, 3/36; and Elizabeth Langley, 3/36.2
Three of the four parcels are unoccupied farmland. The Darlington County parcel consists of thirty-three acres and contains merchantable timber worth approximately $2,000-3,000. One of the Florence County parcels consists of approximately forty-two acres and contains merchantable timber worth approximately $6,500-7,500. The two remaining adjoining Florence County parcels total seventy-five acres and are divided by Lamar Highway.3 The fifty-acre parcel lying west of Lamar Highway is unoccupied farmland, while the twenty-five acre parcel lying east of Lamar Highway (hereinafter referred to as "the Homeplace") is occupied by the parties or members of the parties' families.
On September 15, 2005, Donald commenced an in rem proceeding to partition the property.4 After conducting a formal hearing and several conferences between the court and counsel, the special referee issued his order on December 7, 2007. In holding that an in kind partition is preferred at law if the land can be fairly and equitably divided, the special referee acknowledged that the property had been in the family for three decades and that three of the late Mr. Melvin Campbell Sr.'s descendants currently reside on the property. Because equitable and economic considerations warranted an in kind partition, the special referee allotted each of the parties a portion of the subject property based on the parties' testimony at the hearing, their respective ownership interests, and their improvements to and utilization of the land.
In awarding the majority of the Homeplace to Donald,5 the special referee found that the improvements made to the Homeplace by Donald and Harvey Campbell's son were more substantial in nature than those of the other parties. Specifically, Donald has affixed to the property a double-wide mobile home, a fenced-in horse corral, and three outbuildings, one of the buildings being a water pump house constructed by Donald and used by Donald's family and Betty Jean. The special referee acknowledged that Betty Jean also lived on the Homeplace in a single-wide mobile home. However, the special referee found that because her residence was not permanently affixed to the Homeplace and she had not resided there as long as Donald, her improvements and contributions to the Homeplace were less substantial than those of Donald. Accordingly, the special referee ordered that the real property be surveyed and subdivided so that each party received a commensurate ownership interest.
On appeal, the nieces claim the special referee erred in refusing to consider their emotional attachment to the portion of the Homeplace awarded to Donald, in refusing to strike certain testimony from the record, and in ordering Betty Jean to remove her mobile home from the Homeplace. We disagree.
The nieces argue the special referee erred in awarding the Homeplace to Donald because the special referee failed to consider their emotional attachment to that portion of the property, which resulted in disparate treatment of the parties. We disagree.
A partition action is an equitable action and, as such, this Court may find facts in accordance with its view of the preponderance of the evidence. Zimmerman v. Marsh, 365 S.C. 383, 386, 618 S.E.2d 898, 900 (2005). The partition procedure must be fair and equitable to all parties of the action. Pruitt v. Pruitt, 298 S.C. 411, 414, 380 S.E.2d 862, 864 (Ct.App.1989). This Court has previously stated that partition in kind is favored when it can be fairly made without injury to the parties. Anderson v. Anderson, 299 S.C. 110, 114, 382 S.E.2d 897, 899 (1989). Furthermore, equitable considerations such as the length of ownership and sentimental attachment to property may be considered in a partition action, but the pecuniary interests of all of the parties is the determining factor in deciding whether to require a judicial sale or to allow a partition by allotment. Zimmerman, 365 S.C. at 388, 618 S.E.2d at 901.
The special referee properly partitioned the property in a manner that was fair and equitable to all the parties. The special referee considered the parties' emotional attachment to the land when he specifically recognized the family's long-standing ownership of the property, the parties' respective living situations, and the parties' preference for a partition in kind rather than a judicial sale. Citing to Zimmerman v. Marsh, 365 S.C. 383, 388, 618 S.E.2d 898, 901 (2005), the special referee also stated that partition was justified on economic grounds, as the pecuniary interests of all parties would be best served by dividing the property in this manner.
The nieces argue they are unhappy with the distribution because their mother, Betty Jean, lived a significant portion of her life at the Homeplace. Because of this history and their emotional attachment to the land, it has a greater inherent value to them. Accordingly, the nieces argue that we must redistribute the property or order a judicial sale to account for the disparity in value. However, no evidence of any current property values is in the record, and the nieces fail to assert that the special referee erred in assigning property values or in assigning ownership interest shares to each party. See Wilson v. McGuire, 320 S.C. 137, 139 n. 2, 463 S.E.2d 614, 616 n. 2 (Ct.App.1995) ().
Further, the special referee's award of the Homeplace to Donald is supported by the record. Donald has lived on this portion of the family property for his entire life. In contrast, one of the nieces, Elizabeth, testified she had only lived there for three months when she was a baby. As noted in the special referee's order, Donald has made the most significant improvements to the Homeplace as he has permanently affixed to the property a double-wide mobile home with a carport, a barn, a fenced-in horse corral, and three outbuildings. Both the water and the electricity running to Donald's and Betty Jean's home are a result of Donald's efforts, as Donald built the well and connected Betty Jean's home to his pre-existing power and utility lines. Furthermore, we must reiterate that it is the nieces, not Betty Jean, who have a legal interest in the property. While the special referee properly considered Betty Jean's living situation in the overall award, because she is not a party to the action, her interests are not paramount in the final determination.
After considering the equities and the pecuniary interests of the parties, we find the special referee was fair and equitable in the overall partition of the property, including the allotment of the Homeplace to Donald.
The nieces next assert the special referee erred in failing to strike irrelevant testimony about the circumstances surrounding the transfer of Betty Jean's property to the nieces. We disagree.
The decision to admit or exclude evidence is within the trial court's sound discretion and will not be disturbed on appeal absent an abuse of discretion. Gamble v. Int'l Paper Realty Corp. of S.C., 323 S.C. 367, 373, 474 S.E.2d 438, 441 (1996). To warrant a reversal based on the admission of evidence, the appellant must show both error and resulting prejudice. Commerce Ctr. of Greenville, Inc. v. W. Powers McElveen & Assocs., Inc., 347 S.C. 545, 559, 556 S.E.2d 718, 726 (Ct.App.2001). When improperly admitted evidence is merely cumulative, no prejudice exists, and therefore, the admission is not reversible error. See Creech v. S.C. Wildlife Marine Res. Dept., 328 S.C. 24, 35, 491 S.E.2d 571, 576 (1997) (...
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