Fernandes v. Fernandes
| Decision Date | 29 June 2007 |
| Docket Number | 2007-UP-345 |
| Parties | Linda Kay Fernandes, Respondent, v. Joseph Carlos Fernandes, Appellant. |
| Court | South Carolina Court of Appeals |
Unpublished Opinion
Heard February 6, 2007.
Appeal From Charleston County Frances P. Segars-Andrews, Family Court Judge
Gregory Samuel Forman, of Charleston, for Appellant.
Cynthia Barrier Patterson, of Columbia and David Dusty Rhoades, of Charleston, for Respondent.
Joseph Carlos Fernandes (Husband) appeals the family court's divorce order which granted Linda Kay Fernandes (Wife) a divorce on the ground of adultery, denied Husband alimony equitably divided the marital property, credited Wife with health insurance costs, ordered Husband to pay child support through the court, and ordered Husband to pay Wife $10,000 in attorney's fees. We affirm in part, reverse in part and modify.
Husband and Wife purchased a house (marital house) in July 1986. In October 1986, Husband and Wife married. Husband and Wife have two children.
Husband worked for the United States Navy from October 1981 through April 1994. In April 1994, Husband retired from the military for medical reasons, and thereafter, he earned income from military retirement/disability payments, from refereeing soccer matches, and from miscellaneous yard work. Wife derives her income from teaching at a technical college. In 1997, Husband and Wife fully paid off the mortgage on the marital house.
In August 2001, Husband and Wife separated. Wife purchased and moved into a separate residence (Wife's house), and Husband remained in the marital house.
In June 2002, Wife filed an action for separate maintenance. In March 2003, Wife filed an amended complaint seeking divorce on the ground of adultery. After a hearing, the family court ordered: (1) Wife was entitled to a divorce on the ground of adultery; (2) Husband to pay $10,000 in attorney's fees to Wife; (3) Wife shall have sole custody of the children (4) Husband to pay child support in the amount of $286 per month through the court, plus the 5% administrative service charge; (5) the equitable division of the marital property (6) Husband's Navy Federal Credit Union accounts and Charleston Naval Shipyard Federal Credit Union accounts were marital property; (7) the marital home to be sold and the proceeds divided equally after Husband received $38,808.85 (because Wife has more assets); (8) Husband to pay one-half the fair market rental value of the marital house to Wife for the time he remains in the house, beginning ninety days after the date of the court order; (9) Husband had no interest in Wife's house; and (10) Husband receive the Toyota Rav-4 valued at $9,000. Husband filed a motion to alter or amend which was generally denied.[1] This appeal follows.
"When reviewing the factual determinations of the family court, an appellate court may take its own view of the preponderance of the evidence." Scott v. Scott, 354 S.C. 118 124, 579 S.E.2d 620, 623 (2003). However, "the appellate court's broad scope of review does not relieve the appellant of the burden of showing that the family court committed error." Ex parte Morris, 367 S.C. 56, 62, 624 S.E.2d 649, 652 (2006). Also, when evidence is disputed, the appellate court may adhere to the findings of the family court that is in a superior position to judge the witnesses' demeanor and veracity. Woodall v. Woodall, 322 S.C. 7, 10, 471 S.E.2d 154, 157 (1996).
Husband contends the family court erred in finding he committed adultery. Specifically, Husband asserts there was no evidence of his inclination to commit adultery. We disagree.
"To obtain a divorce on the ground of adultery, the evidence establishing the adultery ˜must be clear and positive, and the infidelity must be established by a clear preponderance of the evidence.'" Nemeth v. Nemeth, 325 S.C. 480, 484, 481 S.E.2d 181, 183 (Ct. App. 1997) (quoting Brown v. Brown, 215 S.C. 502, 512-13, 56 S.E.2d 330, 335 (1949)). "Adultery may be proved by circumstantial evidence, or by direct evidence, or a combination of the two; and circumstantial evidence is just as good as direct evidence if it is equally convincing." Anders v. Anders, 285 S.C. 512, 515, 331 S.E.2d 340, 342 (1985).
The proof of adultery "must be sufficiently definite to identify the time and place of the offense, and the circumstances under which it was committed." Nemeth, 325 S.C. at 484, 481 S.E.2d at 183. "Circumstantial evidence showing the opportunity and inclination to commit adultery is sufficient to establish a prima facie case." Id.
At trial, Wife argued Husband had an affair with Maria Garcia. To support her position, Wife presented items that she found in June 2002 in the marital home. Wife submitted various romantic cards allegedly from Garcia to Husband. One card states, Another reads, "There's only one good thing about us being apart, The ˜welcome back'sex is gonna be great!!" The cards are signed either "Maria ˜Braga'" or "Ceu," Garcia's middle name. Also, Wife introduced a book entitled, "101 Nights of Great Sex" which she alleged came from Garcia. In addition, Wife presented three pages from an instant messaging exchange;[2] the exchange is between "Ceushinha" and "JCFMSoccer."
Wife testified Garcia's "email name" is "Ceushinha" and Husband's "email name" is "JCFMSoccer." The instant message text suggests the parties to the exchange have passionate feelings for each other and have been intimate. At one point, Ceushina said "Tell me I never called you by his name when we were making love" to which JCFM replied "Yes, you did, subconsciously things happen!" Further, Wife testified that in June 2002, she found blue lingerie, that was not hers, in the marital home. Finally, Wife offered a video and witness testimony that suggest Garcia stayed overnight with Husband in July 2002.
In contrast, Husband averred that he and Garcia are long time friends and have never had romantic feelings for one another. Husband admitted that he and Garcia spent three nights together at his house in July 2002. However, Husband explained he and Garcia slept in different bedrooms throughout Garcia's stay. Moreover, Husband testified Garcia intended to stay only a few hours but unexpectedly extended her stay because she became ill. Also, Husband testified he had never seen the sex book or romantic cards Garcia allegedly sent to him. Similarly, Husband testified he did not recognize the instant message exchange introduced by Wife.
Husband also provided Garcia's deposition testimony to further refute Wife's contention. Garcia testified she and Husband are like brother and sister. In addition, Garcia testified she visited Husband in July 2002 when she was en route to visiting her boyfriend. Garcia averred she planned to stay only a few hours but stayed longer because she began to feel ill. Garcia testified she and Husband stayed in separate bedrooms. Further, Garcia testified she did not recall sending any romantic cards or sex books to Husband; however, Garcia admitted that the handwriting in two of the cards looked like hers.
We find the record provides sufficient evidence to support the family court's finding that Husband committed adultery. First, it is undisputed that Husband had the opportunity to commit adultery with Garcia in July 2002. Second, the romantic cards, the instant messaging exchange, the sex book, and the unclaimed lingerie all suggest Husband was inclined to commit adultery with Garcia. We concur with and adhere to the family court's findings in this instance. Woodall, at 10, 471 S.E.2d at 157 (). Therefore, we find the family court did not err in holding Husband committed adultery.
Husband next asserts that if we hold the family court erred in finding Husband committed adultery, we must remand Husband's claim for alimony. We will not address this issue because of our disposition on the first issue. See Whiteside v. Cherokee County Sch. Dist. No. One, 311 S.C. 335, 340, 428 S.E.2d 886, 889 (1993) ( appellate court need not address remaining issues when resolution of prior issue is dispositive).
Husband argues the family court erred in awarding the Toyota Rav-4 to Husband and in failing to account for the pendente lite depreciation on the vehicle. We find the family court did not err in awarding Husband the Rav-4 but did err in its valuation of the vehicle.
Husband and Wife purchased the Rav-4 in 1999. Wife sought temporary and permanent possession of the Rav-4 in both her initial and amended complaints. The family court awarded Wife possession of the Rav-4 during the pendency of this action. Throughout this case, Wife possessed and used the Rav-4.
Wife's initial financial declaration, submitted in November 2002, listed the value of the Rav-4 as $9,000. Wife's amended financial declaration, submitted at trial in July 2004, valued the Rav-4 at $4,000. The family court awarded the Rav-4 to Husband, valuing it at $9,000.
Generally "[t]he apportionment of marital property is within the family court judge's discretion and will not be disturbed on appeal absent an abuse of discretion." Doe v. Doe, 324 S.C. 492, 502, 478 S.E.2d 854, 859 (Ct. App. 1996). In making an equitable distribution of marital property, the family court must, among other things[,]: (1) identify the marital property, both real and personal, to be divided between the parties; (2) determine the fair market value of the identified property; (3)...
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