Dawkins v. Dawkins

• Decision Date: 11 October 2007
• Docket Number: 2007-UP-460
• Parties: Alice Dawkins, Respondent, v. Steve Dawkins, Appellant.
• Court: Court of Appeals of South Carolina

Alice Dawkins, Respondent, v. Steve Dawkins, Appellant.

No. 2007-UP-460

Court of Appeals of South Carolina

October 11, 2007

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

Submitted October 1, 2007

Appeal from Cherokee County Georgia V. Anderson, Family Court Judge

Richard H. Rhodes, of Spartanburg, for Appellant.

William G. Rhoden and Usha J. Bridges, of Gaffney, for Respondent.

PER CURIAM

In this domestic action, Steve Dawkins (Husband) appeals the family court's (1) apportionment of marital property, (2) failure to provide Husband a special equity in the workers' compensation award and the marital home, (3) failure to award Dawkins Automotive to Husband in the division of marital assets, and (4) award of attorney's fees. We affirm in part, reverse in part, and remand. ^[1]

FACTS

The parties in this divorce action were married in June 1980, and separated on August 14, 2002. During their twenty-two year marriage, Husband and Alice Dawkins (Wife) acquired numerous rental properties and a business, Dawkins Automotive. Husband suffered an on-the-job injury in 1995 while employed with John Montgomery Development and collected a $78, 000.00 workers' compensation award. He invested a substantial amount of those benefits in Dawkins Automotive.

Wife filed this divorce action on September 10, 2002. In her complaint, Wife prayed for use of the marital home and the right to operate the family business (Dawkins Automotive). An emergency hearing addressing these concernments was scheduled for October 10, 2002. Husband filed an affidavit seeking to operate the business and to gain access to the business records in Wife's possession.

A temporary order was entered on November 1, 2002, giving Wife control of the business and directing her to account each week for business income and expenses. The order provided (1) Husband would make repairs on vehicles for the business, and return them to Wife, who would sell them for Dawkins Automotive; (2) Wife would furnish the tools and parts for Husband's repair of the vehicles; (3) Husband and Wife would agree upon a Certified Public Accountant (CPA) who would conduct an audit, determine the money received, the automobiles sold, the expenses paid, and the money disbursed; (4) Wonketia Dawkins (the parties' daughter) would manage and collect rent from the parties' mutually owned rental properties and make a monthly accounting; (5) Husband and Wife would make an accounting of rent collected by either party prior to the order date; and (6) either party could petition for relief from the terms of the order.

On November 14, 2002, Husband filed an Answer and Counterclaim to Wife's initial Complaint requesting control over Dawkins Automotive and the business records in Wife's possession. At a follow-up hearing held December 3, 2002, Husband contended Wife failed to provide business records and was uncooperative with the repair and sale of vehicles for Dawkins Automotive.

An order dated January 8, 2003, was issued: (1) compelling the parties to present receipts and expenses related to the rental properties, received since the date of separation; (2) prohibiting the parties from accepting any rent or making any payments on behalf of the rental properties; (3) requiring Wonketia Dawkins to provide rental reports for November and December of 2002, as well as every month thereafter, showing all rent received and all expenses paid; (4) instructing the parties to produce a complete accounting of income and expenses related to the sale of used cars, both personally and for Dawkins Automotive; (5) commanding Husband to provide a written document on each car to be repaired to Wife, listing the needed parts, where they can be purchased, and their approximate cost; (6) dictating that Wife review the car repair documents with Husband and either provide him with the parts or the funds to obtain the parts; (7) directing the parties to give an inventory of all equipment in their respective possessions; and (8) stating when either party receives the income tax refund for 2001, provide it immediately to their attorney.

In January of 2004, Husband filed a motion requesting the information previously ordered by the court on January 8, 2003, and a hearing was held on January 29, 2004. On February 10, 2004, a temporary order was issued expressing the family court's dissatisfaction with the extent of compliance with the prior order. It directed the parties to comply by providing:

Each asset must be reviewed separately as to income and expenses to properly account. Beginning August 18, 2002, both parties must therefore provide the Court and the other party an accounting of each asset (by the name of the asset) on which either has received income and all incurred expenses, supported by receipts and cancelled checks. This includes automobiles and real estate. Either party can then see what the other contends about a particular asset and the Court can determine whether there has been a net gain or a net loss on any particular asset.

Wonketia Dawkins must provide by location of each rental property, an accounting of all rent received and all expenses paid beginning November 1, 2002. Again this will allow the parties and the Court to view each asset separately and make a determination of net gain or net loss.

Both Plaintiff and Defendant must provide the other and this Court a list of all vehicles in his/her possession on August 18, 2002 as well as any vehicles acquired or sold subsequent to that date to include name of vehicles, to whom sold, purchase price, sales price, expenses to repair and monthly payments, if any.

All of the aforesaid must be provided by the parties to their respective attorneys within 10 days. In addition Wonketia Dawkins is hereby named as a party defendant and she is to be served with a copy of this Order and required to comply with the accounting within 10 days after service.

After Husband sought a Rule to Show Cause alleging Wife was not producing rental information or other court ordered documents, Wife presented a voluminous box of documents at a hearing on May 4, 2004. From the hearing, a temporary order was entered on June 14, 2004, continuing the hearing and stating that it appeared Wife and Wonketia Dawkins complied with the prior order, and the matter may be rescheduled if necessary.

On October 5, 2005, the court held a status conference where it required Wife to present within thirty days: (1) index cards of paid out accounts for car sales; (2) monthly reports filed with the South Carolina Tax Commission beginning with September 2002; (3) a list of automobiles sold and their respective buyers for the years of 2004 and 2005; (4) income and expense information on the rental properties for 2004 and 2005; and (5) a composition book of Husband's recorded car sales, if available. In addition, the court instructed Husband to provide an accounting of the following within thirty days: (1) maintenance proceeds; (2) rents received from two of the rental properties; and (3) all car sales.

As a result of Wife's non-production of the documents outlined in the status conference, Husband filed a petition requesting a Rule to Show Cause and the hearing was held on December 15, 2005. At the hearing, Wife presented a plethora of documents purported to contain the information requested. Under the assumption the CPA would be able to find the necessary data to construct his report, the hearing was continued by an order dated December 28, 2005.

On December 19, 2005, Husband filed a Rule to Show Cause alleging Wife had not complied with the prior orders of the court. This petition was scheduled to be heard at the final hearing on January 11, 2006. A divorce decree was entered on March 19, 2006, providing in relevant parts:

R. Distribution List Follows.

The marital properties and debts shall be divided pursuant to the list attached hereto. While the Plaintiff is to receive more than the Defendant, the Plaintiff is taking responsibility for all the marital debt which is secured by the properties that she is receiving. The Court has considered the relative fault in the breakup of the marriage as well as the Plaintiff's earnest and commendable efforts in maintaining the parties [sic] properties and good credit during the pendency of this action. Assets received by the Defendant are debt free. Further, the Plaintiff needs the assets that she will be receiving to support herself in the future. Both parties should cooperate in the signing of any documents necessary to comply with the terms of this Order….

10. The Court finds that in regard to attorney [sic] fees both parties have contributed to the prolonged contentiousness of this case. However, the most significant act, or failure to act was that of the Plaintiff in not timely producing the September 2002 accounts receivable list with the supporting documentation. The Court finds that had this been done in a timely manner, this case may have very well have been less expensive and been ready for trial earlier. The Court considers this factor in the request for attorney's fees rather than as a separate contempt issue. The Plaintiff shall contribute $7, 500.00 toward the Defendant's attorney's fees within six months of the date of this Order paying this directly to Mr. Thompson. In consideration of his fault in the break up of the marriage, [t]he Defendant shall contribute $3, 000.00 toward the Plaintiff's attorney's fees within six months of the date of this Order paying this amount directly to Mrs. Bridges. The remaining legal expenses shall be paid the party incurring them.

Husband filed a Motion for Reconsideration pursuant to Rule 59(e),...