Conits v. Conits

• Decision Date: 16 March 2016
• Docket Number: No. 5391.,Appellate Case No. 2014–000941.,5391.
• Citation: 417 S.C. 127,789 S.E.2d 51
• Court: South Carolina Court of Appeals
• Parties: Peggy D. CONITS, Respondent, v. Spiro E. CONITS, Appellant.

417 S.C. 127

789 S.E.2d 51

Peggy D. CONITS, Respondent,

v.Spiro E. CONITS, Appellant.

Appellate Case No. 2014–000941.

No. 5391.

Court of Appeals of South Carolina.

Heard Dec. 8, 2015.

Decided March 16, 2016.

Rehearing Denied Aug. 18, 2016.

David Alan Wilson, of The Law Offices of David A. Wilson, LLC, and Kenneth C. Porter, of Porter & Rosenfeld, both of Greenville, for appellant.

Timothy E. Madden and Miles Edward Coleman, both of Nelson Mullins Riley & Scarborough, LLP, of Greenville, for respondent.

SHORT

, J.

In this family court action between Peggy D. Conits (Wife) and Spiro E. Conits (Husband), Husband appeals the final order, arguing the court erred in (1) including a nonexistent asset in the marital estate; (2) finding Husband's note payable to his brother was nonmarital property; (3) finding certain property was transmuted into marital property; (4) finding property encumbered by mortgages during the marriage was marital property; (5) apportioning the marital estate; (6) exercising jurisdiction over nonmarital property; and (7) awarding Wife attorney's fees. We affirm.

FACTS

Wife and Husband were married in Sparta, Greece, on November 3, 1985. At the time, Husband was thirty-three years old and Wife was twenty-one years old and studying music. Wife explained the parties intended to move to the United States, where they would work for Husband's restaurant, Carolina Fine Foods, and raise a family. At the time, Carolina Fine Foods was located at 633 S.E. Main Street in Simpsonville, South Carolina. The parties moved to Greenville in February 1986. Wife testified Husband owned four restaurants during the marriage, some of which were owned with Husband's brother.

Wife testified the parties had three children, all of whom were educated in private schools and were over eighteen years old at the time of the final hearing. Wife explained she had never held a paying job, although she worked without pay as needed at the family restaurants. Wife also explained she had no outside income and was a traditional stay-at-home mom throughout the marriage.

Wife testified Husband owned property on Hawkins Road in Traveler's Rest at the time they were married. The property was mortgaged at the time, and throughout the marriage, numerous loans mortgaged by the property were taken and paid off. Wife testified a similar pattern happened with some of the parties' other properties. As to the property at 633 S.E. Main Street, Simpsonville, Wife testified Husband already owned and worked at the property at the time of their marriage. She testified it was mortgaged when they married, the parties paid the loan during the marriage, and the parties executed mortgages and paid other loans on the property. According to Wife, the parties also paid off a mortgage on a mountain house in Greece. Wife testified to the value of other assets, such as the historical house in Greece, and testified the parties' properties were used for loans, which were taken and paid off throughout the marriage. Husband testified he purchased the historical house prior to the marriage and financed it.

Husband's father, Elias Conits (Father), testified in his deposition that he received 1,000 Euros a month from a pension, and over the years, he had given Husband and Husband's brother each 400,000 Euros. He also testified his gifts were derived from his olive and orange tree production. Father admitted Husband had money in Greece that he did not take to America. Husband admitted he always had “a little money over there.”

Husband testified he moved to the United States in 1968. He originally worked for his uncle at a restaurant and went to high school and then a technical college. Shortly thereafter, he and a cousin leased property and opened a liquor store. In 1970 or 1971, Husband began his restaurant business in Greenville with the purchase of Carolina Fine Foods Restaurant, Augusta Road. He later purchased the land on which the restaurant sat, sold the business, and leased the real estate to a new restaurant owner. With the proceeds from the sale of the business, Husband purchased another business in Traveler's Rest, which he later sold, keeping the real estate. Husband repeated this process multiple times until, at the time of the divorce, he owned eighteen properties in the upstate, including several that housed Carolina Fine Foods. Many of the properties were jointly owned by Husband and his brother. Husband also testified to the numerous purchases and financing transactions, explaining at trial that “when [he bought] something [he didn't] want to sell it.” Finally, Husband admitted the money used to support the family throughout the marriage came from the restaurants and the parties' rental properties. He also conceded the money in the Greek bank account was used in support of the marriage.

Husband testified the value of the marital home was $395,000, although his loan application to the bank in September 2011 listed a market value of $500,000. Husband admitted he omitted Carolina Fine Foods, LLC, the bank account in Greece, and the Bank of Traveler's Rest bank account from his 2009 financial declaration.

Wife filed this divorce action in August 2009, seeking, inter alia, equitable apportionment, attorney's fees, and temporary support. A two-day trial was held June 25 and 26, 2012. On July 25, 2012, George Conits (the brother), Husband's brother who resides in Greece, filed a complaint in the Greenville County Court of Common Pleas, seeking a declaratory judgment and constructive trust regarding vacant land on Highway 14, which Wife claimed was marital property. Attached to the complaint was the deed to the property, which indicated Husband was the sole owner. The brother also filed a motion to dismiss in family court as to the Highway 14 property.

In its August 14, 2012 order, the family court granted Wife a divorce and ordered 84.07 acres in Laurens to be sold. By order dated March 11, 2013, the family court denied the brother's motion to dismiss. The brother filed a motion to reconsider. In an order filed October 11, 2013, the family court equitably distributed the parties' marital estate. The parties each moved for reconsideration. The court issued a final amended order, filed April 14, 2014, denying Husband and the brother's motions to reconsider.

The court valued the marital estate at $5.9 million and awarded 50 percent (or $2.972 million) to each party.¹ The court identified and valued numerous properties, including the following properties in dispute on appeal: family farm in Greece; 25 Hawkins Road; 633 S.E. Main Street; historical house and four-story building in Greece; and vacant land on Highway 14, Spartanburg County. The court also ordered Husband to pay Wife's attorney's fees and costs. This appeal followed.

STANDARD OF REVIEW

On appeal from the family court, this court reviews factual and legal issues de novo. Moore v. Moore, 414 S.C. 490, 497, 779 S.E.2d 533, 536 (2015)

. “[T]his broad standard of review does not require the appellate court to disregard the factual findings of the trial court or ignore the fact that the trial court is in the better position to assess the credibility of the witnesses.” DiMarco v. DiMarco, 399 S.C. 295, 299, 731 S.E.2d 617, 619 (Ct.App.2012) (citing Pinckney v. Warren, 344 S.C. 382, 387, 544 S.E.2d 620, 623 (2001) ). An appellate court will affirm the decision of the family court unless the decision is controlled by an error of law or the appellant satisfies the burden of showing the preponderance of the evidence actually supports contrary factual findings by the appellate court. Id.

LAW/ANALYSIS

I. Nonexistent Asset

Husband argues the family court erred in finding a family farm in Greece was marital property because the asset does not exist. We find Husband failed to preserve this issue for appellate review.

Husband listed a one-third interest in a nonmarital, thirty-acre property on his financial declaration dated September 14, 2009, and valued his interest at $20,000. On his November 2010 declaration, Husband omitted the property. On Husband's financial declaration presented at trial, Husband disclosed a fifty percent interest in a three-acre orange farm as a marital asset and valued his interest at $21,875. During trial, he testified the property was three acres, valued at between $35,000 and $40,000, and conceded it was a marital asset. On Wife's 2012 financial declaration, she listed a thirty-acre farm, valued at $1.4 million. The court found, “Throughout this case, Husband made different and contradictory representations [regarding] ... the acreage of the farm, his percentage ownership in the farm, and the value of his interest.” The court found, “[b]ased on the credibility of the competing testimony, the family farm i[n] Greece is a marital asset subject to equitable division and assigned a value of $1,420,000.” On appeal, Husband argues he does not own a thirty-acre family farm in Greece and Wife failed to meet her burden of proving the existence of such a farm as part of the marital estate.

A party may not raise an issue in a motion to reconsider, alter or amend a judgment that could have been presented prior to the judgment. Kiawah Prop. Owners Grp. v. Pub. Serv. Comm'n of S.C., 359 S.C. 105, 113, 597 S.E.2d 145, 149 (2004)

. At trial, Husband made no arguments as to the existence of the family farm or that Wife “made up” the farm. Rather, the parties argued about its value and whether the property was three or thirty acres. Thus, Husband is precluded from raising this issue on appeal. See

id. at 113, 597 S.E.2d at 149 (finding the issue was not preserved because a party may not raise an issue in a motion to reconsider, alter, or amend a judgment that could have been presented prior to the judgment); McClurg v. Deaton, 380 S.C. 563, 576–80, 671 S.E.2d 87, 94–96 (Ct.App.2008)

, aff'd, 395 S.C. 85, 716 S.E.2d 887 (2011) (addressing two grounds for setting aside a default judgment but finding a third ground not...