Cannon v. Cannon, 2452

• Decision Date: 06 December 1995
• Docket Number: No. 2452,2452
• Citation: 321 S.C. 44,467 S.E.2d 132
• Parties: Elizabeth H. CANNON, Respondent-Appellant, v. Philip B. CANNON and Vivian Ripley, Appellants-Respondents. . Heard
• Court: South Carolina Court of Appeals

Page 132

467 S.E.2d 132

321 S.C. 44

Elizabeth H. CANNON, Respondent-Appellant, v. Philip B. CANNON and Vivian Ripley, Appellants-Respondents.

No. 2452.

Court of Appeals of South Carolina.

Heard Dec. 6, 1995.

Decided Jan. 22, 1996.

Rehearing Denied Feb. 22, 1996.

Certiorari Denied Aug. 22, 1996.

Paul N. Uricchio, Jr., and Alan D. Toporek, both of Uricchio, Howe, Krell, Jacobson, Toporek & Theos, Charleston, for appellants-respondents.

H. Stanley Feldman, Charleston, for respondent-appellant.

CURETON, Judge:

This case involves cross appeals from a final order in a domestic case. The primary issues on appeal concern the identification and valuation of marital property, the award of alimony, and the award of attorney fees and costs. We affirm all issues except costs and division of household furnishings which we remand to the family court.

Scope of Review

In appeals from the family court, this court has jurisdiction to find the facts in accordance with our own view of the preponderance of the evidence. This broad scope of review, however, does not require this court to disregard the findings of the trial court. Stevenson v. Stevenson, 276 S.C. 475, 279 S.E.2d 616 (1981). Neither are we required to ignore the fact that the trial judge, who saw and heard the witnesses, was in a better position to evaluate their credibility and weigh their testimony. Cherry v. Thomasson, 276 S.C. 524, 280 S.E.2d 541 (1981).

Facts

Elizabeth and Philip Cannon were married in 1948. They have four children, all of whom are emancipated. At the time of their divorce, the Cannons were both sixty-nine years of age and had been married approximately forty-five years. Both Mr. and Mrs. Cannon have health problems. However, Mr. Cannon has the more severe problems. ¹ Mrs. Cannon receives a gross monthly retirement income of $1,254 while Mr. Cannon's gross monthly income is $3,496.

The court did not find adultery as alleged by Mrs. Cannon, but granted both parties a divorce on the ground of one year continuous separation. Mrs. Cannon was awarded permanent periodic alimony of $150 per month. The court also found Mr. Cannon in arrears on the payment of temporary alimony in the amount of $30,500. He was ordered to pay $100 per month on the arrearage and Mrs. Cannon received a judgment against his property until the arrearage is satisfied.

With respect to equitable distribution of marital property, the court made a fifty-fifty division. In the equitable division award, the court specifically considered the purchase of thirty-nine acres of land by Mr. Cannon and his partner, Vivian Ripley, with a $37,500 down payment obtained entirely from marital funds after the filing of this action. Given the special circumstances surrounding the thirty-nine acres which on its face is not marital property, the court awarded Mrs. Cannon a special equity of 15% of Mr. Cannon's half interest in the property (i.e. 7.5% of the whole). The court valued this special equity interest at $69,477.50, and ordered that sum paid to Mrs. Cannon within twelve months. The court made additional findings regarding pensions and military retirement benefits which are not issues on appeal. Finally, the court ordered Mr. Cannon to pay $3,500 to a real estate appraiser for services rendered in locating and appraising his separate properties. There was no award of attorney fees to either party.

Both parties have appealed certain provisions in the court's order. We address those issues separately.

Equitable Distribution

After analyzing the factors in the equitable distribution statute, the court found the marital property should be divided as equally as possible. Mrs. Cannon received the family home, an automobile, the cash value of life insurance policies, stocks, and monies received from stock sales. She was also awarded a special equity interest in the thirty-nine acres of unimproved property owned in partnership by Mr. Cannon and Vivian Ripley. The court further found Mrs. Cannon owned a parcel of land on Wadmalaw Island which was nonmarital property. Mr. Cannon received his interest in various other properties he owned in partnership with Vivian Ridley.

I.

On appeal, Mr. Cannon first contends the court erred in failing to value the personal property in the marital home at $10,000, and further failed to take the value of this personal property into consideration in equitably dividing the marital property. In response to this argument, Mrs. Cannon argues Mr. Cannon failed to cite any statutory or case law imposing a duty upon the trial judge to take this into account when equitably distributing the marital property.

It is well settled that in making an equitable distribution of marital property, the family court must: (1) identify the marital property, real and personal, to be divided between the parties; (2) determine the fair market value of the property so identified; (3) identify the proportionate contributions, both direct and indirect, of each party to the acquisition of the marital property; and (4) provide for an equitable division of the marital property. Toler v. Toler, 292 S.C 374, 356 S.E.2d 429 (Ct.App.1987); see also S.C.Code Ann. § 20-7-472 (Supp.1994). Mrs. Cannon does not argue that the personal property in the marital home was nonmarital. Furthermore, although Mr. Cannon testified he "guessed" the value of all the personal property in the home was $10,000, the court did not rule on this issue in its final order or in its order on reconsideration even though asked to do so. As such, the court's equitable division of the marital estate is incomplete. We therefore remand the issue of identification, evaluation, and equitable distribution of the personal property in the marital home to the family court.

II.

Mr. Cannon next argues the court failed to consider the nonmarital property owned by Mrs. Cannon, i.e., the Wadmalaw Island property. The court specifically addressed the Wadmalaw Island property which Mrs. Cannon received through a family inheritance and made an unchallenged finding that it was nonmarital and not transmuted into marital property. We find no abuse of discretion and no prejudice to Mr. Cannon in the court's consideration of the nonmarital property.

III.

Mr. Cannon's primary point of contention in the equitable distribution of the marital property relates to the court's award of a special equity interest to Mrs. Cannon in the thirty-nine acre tract. A summary of the tortured procedural history of this case is necessary to understand both parties' arguments on this issue.

Mrs. Cannon first filed for divorce in September of 1988. On November 2, 1988, a pendente lite order was issued which, among other things, addressed payment of temporary alimony. The action was stricken from the docket in March of 1989 at her attorney's request after it had been pending for more than six months without prosecution. A second action was filed in July of 1989 and stricken pursuant to Rule 40(c)(3) in January of 1990. A third action was filed in October of 1990 and stricken pursuant to Rule 40(c)(3) in April of 1991. The fourth and present action was filed in August of 1992. It was also stricken, but was restored to the active roster under the present caption. At the beginning of the hearing, the parties agreed this action would be deemed to have commenced with the filing in September of 1988 and all issues raised by the various pleadings would be tried.

When marital litigation was filed in September of 1988, Mr. Cannon owned a Pioneer Fund Account valued at $37,500. He does not deny the Pioneer fund was marital property on that date. The thirty-nine acres were purchased by Mr. Cannon and Ripley on November 15, 1989 using the money in the Pioneer Fund Account as a down payment on the property. After considering the course of the litigation and the source of the funds used to purchase the property, the court reasoned that equity would require that the assets purchased with marital funds serve as security for the return of the marital asset by way of trust. The court concluded the only equitable way to address the matter was to find Mrs. Cannon had a special vested equity in the thirty-nine acres. The court considered the fact Mrs. Cannon made no payments on the mortgage and did not participate in any decisions regarding the property's acquisition before awarding her a special equity of 15% of Mr. Cannon's share of the property. The purchase price of the property was $365,000 of which $37,500 was the down payment, leaving a mortgage balance of $327,500. The only appraisal furnished to the court valued the property at $1,253,600 with an equity of $926,100. The court valued Mrs. Cannon's special equity interest at $69,477.50. This sum was ordered to be paid to her within twelve months. The court also ordered a lien on the thirty-nine acres until her interest was satisfied.

Since the purchase of the thirty-nine acres did not occur until November 15, 1989, Mr. Cannon argues the court erred in awarding any interest in the property to Mrs. Cannon because it was not marital property on the stipulated date of commencement of marital litigation and, thus, is not subject to equitable apportionment. Alternatively, Mr. Cannon maintains that even if this court by some "inordinate reasoning" should classify the thirty-nine acres as marital property, Mrs. Cannon should not benefit from the increase in value of the property because she contributed nothing toward that increase. Instead, he argues her interest should be limited to fifty percent of the value of the Pioneer fund which existed in September of 1988. Conversely, Mrs. Cannon claims the court should have awarded her a greater interest in the thirty-nine acres when taking into consideration her various contributions during the marriage.

Marital property is defined by S.C.Code Ann. § 20-7-473 (Supp.1994) as "all real and personal property which has been acquired by the parties during the marriage and which...