DiMarco v. DiMarco
| Decision Date | 24 June 2020 |
| Docket Number | 2020-UP-197 |
| Parties | Cheryl DiMarco, Appellant, v. Brian DiMarco, Respondent. Appellate Case No. 2017-000734 |
| Court | South Carolina Court of Appeals |
THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.
Heard February 3, 2020
Appeal From Greenville County Joseph W. McGowan, III, Family Court Judge.
Clarence Rauch Wise, of Greenwood, for Appellant.
J Falkner Wilkes, of Greenville, for Respondent.
In this family court action regarding the division of marital property, Cheryl DiMarco ("Wife") sought an order against her ex-husband, Brian DiMarco ("Husband") to: (1) compel Husband's cooperation with accountant Catherine Stoddard; (2) compel the division of various mutual and retirement accounts pursuant to Stoddard's analysis and (3) recoup Wife's attorney's fees and costs. The family court ruled that, pursuant to a previous order from the year 2004, accountant John Godwin's analysis was the proper basis for the court's final judgment in the matter. Wife argues the family court erred by enforcing the previous order appointing Godwin as the accountant because that order was later modified by subsequent orders. We reverse the family court's decision and remand for a hearing to calculate the present-day valuation of the accounts and to order their equitable distribution.
Since their original decree of separation, the parties have filed multiple contempt actions claiming that the other has failed to comply with a court order regarding the division of various investment and retirement accounts. For proper context, we will provide a brief history of the litigation surrounding this issue.
The parties initially separated on April 7, 1995. Following a two-day divorce hearing, the parties reached an agreement on all matters, encapsulated by the Decree of Separate Maintenance ("the 1996 Order") issued by the Honorable Amy Sutherland on September 20, 1996. The 1996 Order provided in relevant part:
That the parties have maintained the following accounts: Monetta Fund, Inc.; Kaufmann Fund, Inc.; Janus Fund; Janus Twenty Fund; Janus Mercury Fund; Fidelity Contrafund; Fidelity Asset Manager; Charles Schwab; Alcoa Deferred Comp Plan; and an Alcoa Savings Plan. That each party shall receive 50 percent of the net asset value of said accounts as of the date of this agreement (August 1, 1996). It is understood that the Plaintiff, [Husband], has placed additional monies in some of these accounts since the parties['] date of separation (April 7, 1995), and to the extent that the Plaintiff can provide written proof of the number of shares he has purchased in any account since April 7, 1995, he is entitled to deduct that number of shares off of the top of each fund, and the parties will split 50/50 as their equitable share [of] the value of those funds remaining as of August 1, 1996.
Following the issuance of the 1996 Order, the only fund that was properly divided was the Monetta fund in the year 2003. Husband filed a contempt action against Wife and the parties were back before the court on March 11, 2004.
The parties came to an agreement, and a "Final Order" was issued by the Honorable Stephen S. Bartlett on March 25, 2004 ("the 2004 Order"), which provided:
That pursuant to a previous order dated September 20, 1996[, ] under Case No. 1995-DR-23-1819 that each of the parties would receive 50% of the net asset value of the following accounts as of August 1, 1996[, ] minus any contributions Plaintiff made since April 7, 1995, to which Plaintiff provided his proportionate share of the increase or decrease in value of his additional contributions: Monetta Fund, Inc., Kaufman Fund, Inc., Janus Fund, Janus Twenty Fund, Janus Mercury Fund, Fidelity Contrafund, Fidelity Asset Manager, Charles Schwab, Alcoa Deferred Comp Plan, and Alcoa Savings Plan. The parties have agreed to allow John Godwin of Godwin and Associates, an accountant, to review and determine the value of the accounts (including any passive increase or decrease in value) in order to make an equitable distribution[, ] and each shall be bound by the accountant's decision. Should the amount be less than $60, 000, [Wife] shall be responsible for payment of the accountant's fees, otherwise [Husband] shall be responsible for said fees. If Mr. Godwin is unavailable, the parties have agreed that each shall submit a name of an accountant to the other party[.] [I]f the parties fail to agree on either accountant, then those accountants shall provide a third name to be used for the evaluation. Each of the parties agree to fully cooperate with the accountant and provide any and all information required.
Godwin completed his report and determined that Wife's share was $42, 768.05. Wife disagreed with Godwin's analysis because she never got to meet or speak with him. Further, per Stoddard and Husband's own testimony, Godwin's analysis did not account for passive increase or decrease in the account as of 2004, only those increases from April 1995 until August 1, 1996. This led to Husband bringing Wife before the Honorable Rochelle Y. Conits on March 12, 2008, for various issues, including contempt actions. Husband testified that Judge Conits wanted Godwin's analysis brought up to date because too much time had passed between the 2004 Order and the year 2008. However, Godwin was unavailable in 2008, so accountant Pete Tiffany was selected as the accountant pursuant to a final order dated April 18, 2008. Husband subsequently filed a motion to alter, amend and/or reconsider, and Judge Conits heard the matter on June 23, 2008.
On August 4, 2008, Judge Conits issued an order ("the 2008 Order") finding that the 2004 Order controlled the division of the parties' mutual and retirement funds. Further, the 2008 Order provided that, "accountants Mark Swanson and Roger Clinkscales, together, are to recommend a third (3rd) accountant to review the mutual funds and retirement accounts of the parties, in accordance with the previous Final Order . . . ." Sometime after the issuance of the 2008 Order, Catherine Stoddard was selected as the neutral accountant. The process stalled due to discrepancies on the scope of Stoddard's analysis and the failure to receive engagement letters from both parties. Wife filed a contempt action with the court on October 31, 2014.
On March 15, 2015, the Honorable Harry L. Phillips issued an order ("the 2015 Order") requiring both parties to sign an engagement letter for Stoddard within thirty days. The 2015 Order held the contempt matter in abeyance pending Stoddard's accounting, with the express provision that "[i]f either party fails to cooperate[] or otherwise hinders the efforts of the accountant, the other party shall be entitled to file for relief from th[e] Court." Stoddard completed a preliminary analysis in the year 2015. She deduced that Wife was entitled to $205, 158.
Stoddard was unable to properly assess the Alcoa Savings Plan because the plan was rolled over to Dean Witter in June of 1999, and Stoddard was unable to obtain Husband's Dean Witter statements. Without these statements, Stoddard stated she could not adequately deduct Husband's contributions to the various accounts after 1996 because she needed to know when and where the contributions were made to account for proper market changes. Thus, Stoddard was unable to conduct a more comprehensive analysis. Wife filed the present action to: (1) compel Husband's cooperation with the accountant, (2) compel the division of the accounts per the terms of Ms. Stoddard's analysis, and (3) recoup her attorney's fees and costs.
The hearing on this matter took place over the course of two nonconsecutive days, June 5, 2016 and August 8, 2016. The Honorable Joseph McGowan presided over the proceedings. After the first day of proceedings, the parties reached an agreement to immediately divide the balance of the Janus and Kaufman accounts. The division amount was to be determined based upon the date the actual division occurred.[1] At the hearing, the account valuations prepared by both Wife's expert witness and Husband's expert witness were offered into evidence. Although Stoddard testified she was unable to complete a more precise analysis her preliminary estimate was that Wife was due $205, 158. Conversely, the calculation produced by Husband's expert, James Stuckey, showed Wife was due $118, 306. Both experts testified that the totals would change depending on the date of disbursement. On the final day of the proceedings, Judge McGowan ruled that the 2004 Order was binding on the parties, therefore, the division of the accounts was to be made pursuant to Godwin's calculation. Judge McGowan found that Husband was to pay Wife $42, 768.05, plus the post-judgment interest accumulated from March 25, 2004 to August 8, 2016.
The family court issued its final order on February 16, 2017 crystallizing its August 8, 2016 ruling. The court found that Godwin completed his analysis, the parties agreed to be bound by Godwin's calculation, and Wife was due a net payment amount of $42, 786.05. Further, neither party lodged any objections to Godwin's report with the court, filed a motion for reconsideration after Godwin completed his report, nor appealed Godwin's conclusions. Therefore, the court found that Godwin's report represented the final judgment of the court. The court did not find any party in contempt. Although the court believed there was significant evidence that Husband failed to cooperate with Stoddard, the court declined to find Husband in contempt of the 2008 and 2...
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