Clark v. Clark, Appellate Case No. 2015-002111

CourtCourt of Appeals of South Carolina
Writing for the CourtHILL, J.
Citation823 S.E.2d 200,425 S.C. 453
Decision Date28 November 2018
Docket NumberOpinion No. 5606,Appellate Case No. 2015-002111
Parties George Wetherill CLARK, Respondent, v. Patricia Brennan CLARK, Appellant.

425 S.C. 453
823 S.E.2d 200

George Wetherill CLARK, Respondent,
v.
Patricia Brennan CLARK, Appellant.

Appellate Case No. 2015-002111
Opinion No. 5606

Court of Appeals of South Carolina.

Heard March 13, 2018
Filed November 28, 2018
Rehearing Denied February 19, 2019


Ken H. Lester and Catherine S. Hendrix, both of Ken Lester & Associates, of Columbia; and David Michael Collins, Jr., of Collins Law Firm, P.C., of Greenville, all for Appellant.

David Alan Wilson, of Wilson & Englebardt, LLC, of Greenville, for Respondent.

HILL, J.:

823 S.E.2d 202
425 S.C. 456

In this appeal, Patricia Clark (Wife) argues the family court erred in (1) setting child support; (2) finding 75% of Pure Country, Inc. (PCI) was non-marital property; (3) valuing Wife's 25% interest in PCI at $75,000; and (4) refusing to order George Clark (Husband) to contribute to her attorney's fees. We affirm in part and reverse in part.

425 S.C. 457

I.

In 2012, after twenty-five years of marriage, Husband sought a divorce from Wife on the ground of adultery. The parties had three children; one was still a minor at the time of filing. The parties met in 1982 at Emory University. Husband later obtained an MBA and worked for several businesses before joining PCI, his parents' and sister's company, in sales. He became president of PCI around 2001 after his mother stepped down. Wife began working for PCI a few years later, eventually becoming the art director. At the time of filing, Husband was the president of PCI and owned 75% of the stock; Wife owned the remaining 25%. The family court (1) granted the parties a divorce on the ground of one year's separation; (2) granted the parties joint custody and ordered Husband to pay Wife $744 a month in child support; (3) found Wife's adultery barred her from receiving alimony; (4) found Husband's 75% interest in PCI non-marital and valued Wife's 25% interest at $75,000; and (5) found each party responsible for their own attorney's fees.

II.

We review decisions of the family court de novo. Stoney v. Stoney , 422 S.C. 593, 596, 813 S.E.2d 486, 487 (2018). We may find the facts based on our view of the greater weight of the evidence. Lewis v. Lewis , 392 S.C. 381, 384, 709 S.E.2d 650, 651 (2011). This does not, however, require us to ignore the reality that the family court saw and heard the witnesses and was in a better position to gauge their credibility. The appellant bears the burden of convincing us the family court erred. Evidentiary and procedural rulings of the family court, however, are reviewed for an abuse of discretion. Stoney , 422 S.C. at 594 n.2, 813 S.E.2d at 486 n.2.

III.

Husband argues Wife did not timely serve her notice of appeal. We disagree.

Rule 203 of the South Carolina Appellate Court Rules requires Wife to serve her notice of appeal within thirty days of her receipt of written notice of entry of the order on appeal. She did. Wife received written notice of entry of the order

425 S.C. 458

denying her motion for reconsideration on September 11, 2015. Because October 11, 2015, was a Sunday, and October 12, 2015, was a federal holiday, Wife's deadline to file and serve her notice of appeal was October 13, 2015, and she served her notice of appeal on October 12, 2015, giving us jurisdiction. See Rules 262(a)(2) and 263(a), SCACR.

IV.

Wife argues the family court erred in refusing to deviate from the Child Support Guidelines when it awarded child support, contending the amount is inadequate and the family court should have imputed additional income to Husband. We disagree.

We must presume the guideline amount is correct; Wife may rebut this presumption by showing it is "unjust or inappropriate." S.C. Code Ann. § 63-17-470(A) (2010). "Deviation from the guidelines should be the exception rather than the rule." S.C. Code Ann. Regs. 114-4710 (Supp. 2018). The family court may impute income to a party with respect to awards of child support. Jenkins v. Jenkins , 401 S.C. 191, 203, 736 S.E.2d 292, 299 (Ct. App. 2012).

We find the family court did not err in refusing to impute additional income to Husband. Wife argues Husband underreported his income on his financial declaration, but

823 S.E.2d 203

there is insufficient support for this in the record. The family court excluded Wife's forensic accounting report of Husband's income and the expert's testimony regarding it because Wife did not produce the report within the discovery deadline. Wife admitted at the motion to reconsider hearing that the family court properly excluded the forensic accounting report. Wife did not present any documentary evidence supporting her argument that Husband's financial declaration was inaccurate.

The parties share joint custody. Wife does not offer any evidence of how the guideline amount is unjust or inappropriate. She does not point to any expenses or outstanding needs of Child she will be unable to cover. Wife did not prove any statutory factors or present any evidence warranting a deviation. See S.C. Code Ann. § 63-17-470(C) (2010) (setting forth factors family court can consider for deviation from the guidelines).

425 S.C. 459

We therefore affirm the family court's child support order.

V.

Wife next challenges the equitable distribution award, arguing the family court erred in finding Husband's 75% share of PCI was non-marital property. We disagree. A party who claims property acquired during the marriage is non-marital bears the burden of proving the property is non-marital. Brandi v. Brandi , 302 S.C. 353, 356, 396 S.E.2d 124, 126 (Ct. App. 1990). Thus, Husband bore the burden of proof at trial. However, Wife has not shown the family court's finding that PCI was a non-martial asset was against the greater weight of the evidence. See Lewis , 392 S.C. at 384, 392, 709 S.E.2d at 651–52, 655 (stating the appellant bears the burden of proving the family court committed error or that the greater weight of the evidence is against the court's findings).

When Husband joined PCI, his Mother and Father each owned 37.5% of the shares, and his sister owned the remaining 25%. When Mother died in 2002, many of her assets, including her PCI shares, flowed to what is known as an "AB" Trust, designed to reduce tax liability. Husband testified without contradiction that Father, as Trustee, filled Trust A to the maximum allowable amount with assets other than Mother's PCI shares, which then automatically went into Trust B. This transferred Mother's shares to Father, the beneficiary of Trust B. After Mother's death, Husband's sister and brother sued Father and Husband, challenging Father's competency and seeking to wrest control of the company from Father and Husband.

While this suit was pending, two important events occurred. First, as Husband testified, Father had once intended to give PCI to all three of his children, but given the lawsuit, he decided to gift it to Husband only. There was no evidence Father wished to include Wife in this bequest or otherwise give her any ownership in PCI. Second, Husband's sister agreed to sell her 25% share to the company and drop the lawsuit. Granted, the evidence was far from seamless, and Husband contradicted himself more than once on the timelines

425 S.C. 460

and details of the company ownership, but PCI's corporate tax returns for 2003 show Husband owned 75% of the company's shares. In her testimony, Wife acknowledged Husband's ownership without conceding PCI was non-marital.

Beginning in January 2006, several tragedies befell Husband. His brother was murdered by his sister's husband, with his sister later being convicted as an accessory. Later that year, Father died. By 2008, PCI was under financial pressure. Husband's financial and family woes sent him into profound depression. Meanwhile, Wife began an affair with a PCI employee who reported to her. Wife testified the relationship was an "arrangement," and Husband had agreed to allow her a "sexual surrogate." In 2010, while still pursuing her affair, Wife asked Husband for ownership of part of PCI. Husband testified Wife was concerned about protecting their children's inheritance should anything happen to Husband, telling him PCI was "clearly yours. It's a family business." Acting on behalf of PCI, Husband gave Wife a 25% interest in PCI, memorialized in a stock transfer agreement that included Wife's acknowledgment that the agreement could not be construed as giving Wife "any right to be awarded any further stock other than in the

823 S.E.2d 204

sole discretion of the Board of Directors of the Company." In 2012, Husband learned of the affair when he discovered a salacious picture Wife's lover had texted her. Shortly thereafter, Husband fired them both from PCI. The family court found Wife's assertions that Husband...

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1 practice notes
  • Clark v. Clark, Appellate Case No. 2019-000442
    • United States
    • United States State Supreme Court of South Carolina
    • May 13, 2020
    ...found the value of the 25% interest was $75,000.On appeal, the court of appeals affirmed in part and reversed in part. Clark v. Clark , 425 S.C. 453, 463, 823 S.E.2d 200, 205 (Ct. App. 2018). The court rejected the marketability discount, relying on Moore . Because there was no evidence tha......
1 cases
  • Clark v. Clark, Appellate Case No. 2019-000442
    • United States
    • United States State Supreme Court of South Carolina
    • May 13, 2020
    ...found the value of the 25% interest was $75,000.On appeal, the court of appeals affirmed in part and reversed in part. Clark v. Clark , 425 S.C. 453, 463, 823 S.E.2d 200, 205 (Ct. App. 2018). The court rejected the marketability discount, relying on Moore . Because there was no evidence tha......

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