Crossland v. Crossland
| Decision Date | 07 March 2012 |
| Docket Number | Opinion No. 4949 |
| Parties | Robert Crossland, Appellant, v. Shirley Crossland, Respondent. |
| Court | South Carolina Court of Appeals |
Appeal From Richland County
George M. McFaddin, Jr., Family Court Judge
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED
Melvin D. Bannister, of Columbia, for Appellant.
Brian Dumas, of Columbia, for Respondent.
Robert Crossland (Husband) appeals the family court's order awarding Shirley Crossland (Wife) (1) periodic alimony in the amount of $958.50 per month, (2) forty percent of the marital estate, and (3) $16,024.50 in attorney's fees. On appeal, Husband argues the family court erred in awarding Wife alimony, forty percent of the marital estate, and attorney's fees. In addition, Husband argues the family court erred by substituting an amended order after it signed the original final order and decree. We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.
Husband and Wife were married in 1997 and separated for the final time on September 6, 2006. Husband filed the instant divorce action on August 17, 2007. At the time of the divorce hearing on March 1, 2010, Husband was seventy-six years old, and Wife was sixty-two years old. No children were born of the marriage, and both parties had been previously married.
Prior to his marriage, Husband had been employed with the United States Air Force, Hobart Manufacturing Company, and the State of South Carolina, but he had been retired for twenty years when he married Wife. His income prior to and during the marriage consisted of social security benefits, Air Force retirement benefits, and Veterans disability benefits. At the time the parties married, Husband owned two mobile homes, a house he purchased in 1955,1 and savings in the form of stocks, savings accounts, certificates of deposits, and mutual funds. Shortly after the parties married, Husband added Wife to the accounts identified as his "savings"; however, after Wife left Husband the final time he transferred the money in the joint accounts to an annuity fund in his name only. At the time Wife left Husband, the parties estimated the savings accounts contained approximately $180,000, and documents submitted by Wife supported this valuation. At the time of the divorce hearing, Husband testified he had a gross income of $2,429 per month, and $149,000 in the annuity fund.
At the time the parties married, Wife had just returned from an extended mission trip and was not working. She claimed her employer was holding her previous position at a Christian bookstore, but Husband asked her to quit the job so they could travel together. Wife earned $5.00 per hour in her position at the bookstore and did not make enough to support herself. In addition, Wife owned no assets at the time of the marriage. She did not work during the marriage except for a brief period of employment with the Census Bureau and did not own any assets prior to the marriage. Wife testified she earned approximately $26,000 from her position with the Census Bureau. Wife also received $5,632.84 during the marriage in proceeds resulting from an automobile accident, which she deposited into one of the parties' joint accounts. She testified she was eligible for social security benefits but had not applied to begin receiving them.
Husband claimed Wife left their home on September 6, 2006, and did not return. He stated Wife had previously left him three times but eventually returned. He estimated they lived together for only five years of their ten-year marriage due to the various separations initiated by Wife. The final time Wife left, Husband claimed she took a 2000 Mercury Grand Marquis automobile with her, and he sent her title to the car upon her request. Wife testified she left because of Husband's erratic and overly controlling behavior, especially regarding finances.
Both parties suffered from various health problems. Husband suffered two knee replacements and surgeries for heart and prostate issues. Wife was diagnosed with breast cancer, which was successfully treated and continued to be in remission at the time of the divorce hearing. In addition, Wife suffered from back pain since 1989 and had surgery for a torn rotator cuff in 2006. Wife claimed she could not work at all because of fibromyalgia and back pain; however, she admitted she was employed prior to her marriage despite suffering from back and neck pain. She also testified she would lose her medical insurance as a result of the divorce and would need to procure new insurance at a cost of $330 per month.
After the final hearing, the family court granted Husband a divorce based on one year of continuous separation. In its final order, the family court awarded Wife forty percent of the marital estate, represented by the annuity fund in Husband's name and the amount of $20,442, which the family court found Husband had taken from the joint accounts to purchase an automobile after he filed for divorce. In addition, the family court found Wife is unable to work due to her serious health problems and awarded her alimony in the amount of $958.50 per month. The family court also awarded Wife $16,024.50 in attorney's fees. This appeal followed.
"In appeals from the family court, this [c]ourt reviews factual and legal issues de novo." Simmons v. Simmons, 392 S.C. 412, 414, 709 S.E.2d 666, 667 (2011). Accordingly, this court has the authority to find facts in accordance with its own view of the preponderance of the evidence. Lewis v. Lewis, 392 S.C. 381, 392, 709 S.E.2d 650, 655 (2011). However, "we recognize the superior position of the family court judge in making credibility determinations." Id. "Moreover, . . . an appellant is not relieved of his burden to demonstrate error in the family court's findings of fact." Id. "Consequently, the family court's factual findings will be affirmed unless appellant satisfies this court that the preponderance of the evidence is against the finding of the [family] court." Id. (internal citation and quotation marks omitted).
Husband argues the family court erred in ordering him to pay Wife alimony in the amount of $958.50 per month. We agree.
"The purpose of alimony is to provide the ex-spouse a substitute for the support which was incident to the former marital relationship." Id. at 519, 675 S.E.2d at 823 (internal citation and quotation marks omitted). "Generally, alimony should place the supported spouse, as nearly as is practical, in the same position he or she enjoyed during the marriage." Id. (internal citation and quotation marks omitted). The family court must "make an alimony award that is fit, equitable, and just if the claim is well founded." Id. (internal citation and quotation marks omitted).
"South Carolina law provides that the family court judge may grant alimony in such amounts and for such term as the judge considers appropriate under the circumstances." Davis v. Davis, 372 S.C. 64, 79, 641 S.E.2d 446, 454 (Ct. App. 2006). Section 20-3-130(C) of the South Carolina Code (Supp. 2011) sets forth the following factors for the family court to consider when awarding alimony:
(1) the duration of the marriage . . . ; (2) the physical and emotional condition of each spouse; (3) the educational background of each spouse . . . ; (4) the employment history and earning potential of each spouse; (5) the standard of living established during the marriage; (6) the current and reasonably anticipated earnings of both spouses; (7) the current and reasonably anticipated expenses and needs of both spouses; (8) the marital and nonmarital properties of the parties . . . ; (9) custody of the children . . . ; (10) marital misconduct or fault of either or both parties . . . ; (11) the tax consequences to each party as a result of the particular form of support awarded; (12) the existence and extent of any support obligation from a prior marriage or for any other reason of either party; and (13) such other factors the court considers relevant.
In the instant case, Wife testified at the divorce hearing that she was eligible to receive social security benefits but had not applied for them. Because there is no evidence in the record the family court considered Wife's eligibility for social security benefits in its determination of alimony, we reverse the family court's alimony award and remand for a determination of Wife's income derived from social security benefits and a recalculation of alimony in light of such benefits and other income, imputed or otherwise. See Marchant v. Marchant, 390 S.C. 1, 9, 699 S.E.2d 708, 713 (Ct. App. 2010) (); see also Smith v. Smith, 386 S.C. 251, 266, 687 S.E.2d 720, 728 (Ct. App. 2009) ().
Husband argues the family court erred in awarding Wife forty percent of the marital estate. Specifically, Husband contends the family court erred in (1) finding the annuity fund was transmuted into marital property, (2) valuing the annuity fund, and (3) failing to apply the relevant statutory factors in its determination of equitable distribution. Although we agree with the family court that the annuity fund was transmuted into marital property and with its valuation of the annuity fund, we agree with Husband that the family court erred in awarding Wife forty percent of the marital estate.
"Marital property includes all real and personal property the parties acquired during the marriage and owned as of the date of filing or commencement of marital litigation." King v. King, 384 S.C. 134, 143, 681 S.E.2d 609, 614 (Ct. App. 2009)....
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