Doe v. Doe, No. 4132.

CourtCourt of Appeals of South Carolina
Writing for the CourtHearn
Citation634 S.E.2d 51
PartiesJohn DOE, Respondent, v. Jane DOE, Appellant.
Decision Date03 July 2006
Docket NumberNo. 4132.
634 S.E.2d 51
John DOE, Respondent,
v.
Jane DOE, Appellant.
No. 4132.
Court of Appeals of South Carolina.
Heard May 9, 2006.
Decided July 3, 2006.
Rehearing Denied August 25, 2006.

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COPYRIGHT MATERIAL OMITTED

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Emma I. Bryson, of Columbia and William S. Tetterton, of Camden, for Appellant.

George W. Speedy, of Camden, for Respondent.

HEARN, C.J.


In this action for divorce and equitable distribution, Wife appeals the family court's identification, valuation, and distribution of the marital estate. In addition, Wife appeals the family court's award of attorneys' fees, costs, and certain advancements to Husband. We affirm in part and reverse in part.

FACTS

Wife and Husband were married on September 8, 1970, when Husband was seventeen and Wife was sixteen. Husband worked as a construction laborer until he began his own construction company in the 1980s. For the first fourteen years of their marriage, Wife had numerous jobs, one of which was at Jubilee Embroidery. At some time in the mid to late 1970s, while employed at Jubilee, Wife began having an affair with her boss

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(Paramour). In 1984, Wife ceased working after giving birth to a daughter (Daughter).

Although the parties had very few assets when their marriage began, they amassed a fairly large estate over the years. Husband's construction business was profitable, and Wife worked for the business approximately one day a week, keeping the books and offering decorating services. In 2002, after Daughter graduated from high school and moved out of the home to attend college, Wife asked Husband for a divorce. Husband testified he became suspicious when Wife refused to attempt marriage counseling. He hired a private investigator, who observed Wife entering a motel with Paramour. Husband recognized Paramour, not only because he had been Wife's former boss, but also because Paramour was a longtime family friend. Wife later admitted the affair had been going on for more than twenty years.

Upon learning of the adultery, Husband called Paramour's wife to inform her of the relationship between their spouses. After speaking with her, Husband suspected the daughter he had raised might not be his biological child. He later had a DNA test, which confirmed his suspicions that Paramour was Daughter's biological father.1

Subsequently, Husband filed a complaint in the family court, asking for, among other things, a divorce on the grounds of adultery and an equitable distribution of the marital property. Notably, Husband did not seek a ruling regarding Daughter's paternity. In Wife's answer, she admitted the adultery.

At the final hearing, the parties presented evidence of the valuation of the marital property, the quality of Husband and Wife's relationship before separation, the costs associated with the divorce, and various advances made by Husband between the time of filing for divorce and the time of the hearing. Additionally, Husband presented evidence indicating Daughter was not his biological child and introduced the testimony of Dr. Perry Woodside, an economist, to establish the cost of raising a child. The family court issued a divorce decree granting Husband a divorce on the grounds of adultery; barring alimony to Wife; valuing the marital property at $1,332,798; awarding Husband seventy percent of the marital property; and ordering Wife to reimburse Husband for his advances, his attorneys' fees, his accountant's fees, and the cost of Dr. Woodside's testimony. Wife submitted a Rule 59(e), SCRCP, motion to alter or amend this decree, which the family court denied. This appeal followed.

STANDARD OF REVIEW

"In appeals from the family court, the appellate court has the authority to find the facts in accordance with its view of the preponderance of the evidence." Ex parte Morris, 367 S.C. 56, 61, 624 S.E.2d 649, 652 (2006). However, "because the family court is in a superior position to judge the witnesses' demeanor and veracity, its findings should be given broad discretion." Scott v. Scott, 354 S.C. 118, 124, 579 S.E.2d 620, 623 (2003).

LAW/ANALYSIS

I. Identification and Valuation of Marital Property

Wife contends the family court erred in identifying and valuing the marital property. This issue is not preserved for our review.

To preserve an issue for appellate review, the issue cannot be raised for the first time on appeal, but must have been raised to and ruled upon by the trial court. Floyd v. Floyd, 365 S.C. 56, 73, 615 S.E.2d 465, 474 (Ct.App.2005). "Error preservation requirements are intended `to enable the lower court to rule properly after it has considered all relevant facts, law, and arguments.'" Staubes v. City of Folly Beach, 339 S.C. 406, 412, 529 S.E.2d 543, 546 (2000) (quoting I'On, L.L.C. v. Town of Mt. Pleasant, 338 S.C. 406, 422, 526 S.E.2d 716, 724 (2000)). Without an initial ruling by the trial court, a reviewing court simply is not able to evaluate whether the trial court committed error. Id. Therefore,

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when an appellant neither raises an issue at trial nor through a Rule 59(e), SCRCP, motion, the issue is not preserved for appellate review. Washington v. Washington, 308 S.C. 549, 551, 419 S.E.2d 779, 781 (1992).

At trial, Wife made no arguments with respect to the valuation of the marital property. Additionally, Wife failed to specifically raise any issues with regard to valuation in her Rule 59(e) motion. Instead, she generally asserted that the divorce decree was unsupported by the evidence and that the family court judge failed to properly apply the equitable division statute. These broad assertions failed to preserve her appellate arguments relating to the identification and valuation of the marital estate.

II. Daughter's Paternity

Wife argues the family court erred in making findings of facts that essentially determined Daughter's paternity. This issue has also not been preserved for our review.

Wife objected at trial to the consideration of Daughter's paternity, and the family court assured her that a "determination as to whether or not the child is bastardized . . . is not a finding for the Court to make." The family court later stated "[t]here will be no finding as to the paternity of the child." However, in its written order, the family court found that "although the question of paternity was not before the Court, DNA testing and the admission of the wife has proven that the child is not the biological daughter of [Husband]." Although Wife made a motion to alter or amend the family court's order, she did not ask the family court to reconsider this finding. Under these circumstances, Wife failed to preserve this issue for our review. See Pelican Bldg. Ctrs. of Horry-Georgetown, Inc. v. Dutton, 311 S.C. 56, 60, 427 S.E.2d 673, 675 (1993) (holding when trial court's oral and written orders are inconsistent, appellant must bring these inconsistencies to the trial court's attention through a motion to alter or amend to preserve the issue for appeal).2

III. Equitable Distribution

Wife argues the family court erred in distributing seventy percent of the marital property to Husband. Specifically, Wife contends the family court erred in considering the paternity of Daughter as a factor in equitable distribution, intimating that the length of the marriage favored Husband, penalizing Wife for her marital misconduct, and undervaluing her contribution to the marital estate. We agree.

The division of marital property is in the family court's discretion and will not be disturbed absent an abuse of that discretion. Craig v. Craig, 365 S.C. 285, 290, 617 S.E.2d 359, 361 (2005). Section 20-7-472 of the South Carolina Code (Supp.2005) provides fifteen factors for the family court to consider in apportioning marital property and affords the family court with the discretion to give weight to each of these factors "as it finds appropriate." On appeal, this court looks to the overall fairness of the apportionment, and it is irrelevant that this court might have weighed specific factors differently than the family court. Greene v. Greene, 351 S.C. 329, 340, 569 S.E.2d 393, 399 (Ct.App.2002). Even if the family court commits error in distributing marital property, that error will be deemed harmless if the overall distribution is fair. See West v. West, 315 S.C. 44, 46, 431 S.E.2d 603, 604 (Ct.App. 1993).

In awarding Husband seventy percent of the marital estate, the family court found "the two controlling factors" were the duration of the marriage and the conduct of the parties. The family court went on to say the marriage's dissolution was "solely at the hands of [Wife]" and Wife "duped her spouse through at least twenty years of the thirty-two year marriage into believing that he should love her." Additionally, the family court noted that Husband's contribution to the marital estate was ninety to ninety-five

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percent and that Dr. Woodside's testimony, which outlined the cost of raising a child, was relevant to the court's equitable apportionment determination.

We find the family court's seventy-thirty split in favor of Husband constituted an abuse of discretion. This was a marriage of significant duration. While there is certainly no recognized presumption in favor of a fifty-fifty division, we approve equal division as an appropriate starting point for a family court judge attempting to divide an estate of a long-term marriage. See Roy T. Stuckey, Marital Litigation in South Carolina 321-22 (3rd ed.2001 and Supp.2005) ("Although neither the case decisions nor the Equitable Apportionment of Marital Property Act say so directly, the results in cases involving long marriages would lead one to predict that, absent special circumstances, marital property will be divided on a...

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165 practice notes
  • Coastal Conservation v. Dept. of Health, No. 4450.
    • United States
    • Court of Appeals of South Carolina
    • October 23, 2008
    ...be raised for the first time on appeal. Doe v. Roe, 379 S.C. 291, 297, 665 S.E.2d 182, 185 (Ct.App.2008); Doe v. Doe, 370 S.C. 206, 212, 634 S.E.2d 51, 54 669 S.E.2d 915 (Ct.App.2006); Widman v. Widman, 348 S.C. 97, 119, 557 S.E.2d 693, 704 (Ct.App.2001). The issue must have been raised to ......
  • Dawkins v. Dawkins, 2007-UP-460
    • United States
    • Court of Appeals of South Carolina
    • October 11, 2007
    ...1987) (approving a fifty-fifty apportionment of marital property after a twenty-two year marriage). In Doe v. Doe, 370 S.C. 206, 215, 634 S.E.2d 51, 56 (Ct. App. 2006), the family court partitioned the marital estate in a seventy/thirty proportion in favor of the husband considering the wif......
  • Dawkins v. Dawkins, 2007-UP-460
    • United States
    • Court of Appeals of South Carolina
    • October 11, 2007
    ...1987) (approving a fifty-fifty apportionment of marital property after a twenty-two year marriage). In Doe v. Doe, 370 S.C. 206, 215, 634 S.E.2d 51, 56 (Ct. App. 2006), the family court partitioned the marital estate in a seventy/thirty proportion in favor of the husband considering the wif......
  • Bradley v. Doe, No. 4274.
    • United States
    • Court of Appeals of South Carolina
    • July 6, 2007
    ...contain circumstantial evidence based on independent personal knowledge that supported the driver's version of the accident. Id. at 205, 634 S.E.2d at 51. At best, Shealy's affidavits merely repeated the driver's account of what happened and did not independently corroborate the driver's ve......
  • Request a trial to view additional results
165 cases
  • Coastal Conservation v. Dept. of Health, No. 4450.
    • United States
    • Court of Appeals of South Carolina
    • October 23, 2008
    ...be raised for the first time on appeal. Doe v. Roe, 379 S.C. 291, 297, 665 S.E.2d 182, 185 (Ct.App.2008); Doe v. Doe, 370 S.C. 206, 212, 634 S.E.2d 51, 54 669 S.E.2d 915 (Ct.App.2006); Widman v. Widman, 348 S.C. 97, 119, 557 S.E.2d 693, 704 (Ct.App.2001). The issue must have been raised to ......
  • Dawkins v. Dawkins, 2007-UP-460
    • United States
    • Court of Appeals of South Carolina
    • October 11, 2007
    ...1987) (approving a fifty-fifty apportionment of marital property after a twenty-two year marriage). In Doe v. Doe, 370 S.C. 206, 215, 634 S.E.2d 51, 56 (Ct. App. 2006), the family court partitioned the marital estate in a seventy/thirty proportion in favor of the husband considering the wif......
  • Dawkins v. Dawkins, 2007-UP-460
    • United States
    • Court of Appeals of South Carolina
    • October 11, 2007
    ...1987) (approving a fifty-fifty apportionment of marital property after a twenty-two year marriage). In Doe v. Doe, 370 S.C. 206, 215, 634 S.E.2d 51, 56 (Ct. App. 2006), the family court partitioned the marital estate in a seventy/thirty proportion in favor of the husband considering the wif......
  • Bradley v. Doe, No. 4274.
    • United States
    • Court of Appeals of South Carolina
    • July 6, 2007
    ...contain circumstantial evidence based on independent personal knowledge that supported the driver's version of the accident. Id. at 205, 634 S.E.2d at 51. At best, Shealy's affidavits merely repeated the driver's account of what happened and did not independently corroborate the driver's ve......
  • Request a trial to view additional results

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