Foreman v. Foreman

• Decision Date: 17 February 1984
• Docket Number: No. 0082,0082
• Parties: Cathy M. FOREMAN, Respondent, v. Lee M. FOREMAN, Appellant.
• Court: South Carolina Court of Appeals

Page 312

313 S.E.2d 312

280 S.C. 461

Cathy M. FOREMAN, Respondent, v. Lee M. FOREMAN, Appellant.

No. 0082.

Court of Appeals of South Carolina.

Feb. 17, 1984.

Michael O. Hallman, Greenville, for appellant.

Kenneth C. Porter of Porter & Rosenfled, Greenville, for respondent.

CURETON, Judge:

This is a divorce action. The appellant husband, Lee Foreman, appeals from the order of the family court awarding the respondent-wife, Cathy Foreman, all of the marital property, with minor exceptions, monthly alimony of $200 and attorney's fees of $1,500. We reverse and remand.

Lee and Cathy Foreman were married on May 10, 1975. Mrs. Foreman was employed as a teacher earning approximately $11,000. Mr. Foreman earned around $20,000. They purchased a modest home in January, 1976 with joint funds. Title was placed in both their names.

The Foremans' lives changed considerably when Mrs. Foreman received serious injuries in an automobile accident in April, 1976. She was out of work because of her injuries from April 1976 to September, 1977. During this time she received disability compensation.

As a result of the accident, Mr. and Mrs. Foreman filed claims for loss of consortium and personal injuries, respectively. The claims were settled in late 1977 for the net sum of $210,000. Although the settlement was undivided, the parties signed an agreement drawn by counsel that $50,000 was received in settlement of Mr. Foreman's claim and $160,000 in settlement of Mrs. Foreman's claim. The money was deposited in a joint account. It appears from the record that Mr. Foreman exercised control of the settlement money with Mrs. Foreman's consent.

The record also reveals that the Foremans began spending large sums of the settlement money. They began building a new house in 1978. They sold their first house at a profit of $15,000 which amount was added to the settlement funds. They also placed a $35,000 mortgage on the property to secure additional funds to complete construction of the house. Both parties testified that about $190,000 was expended on its construction. In addition to the house, the Foreman's purchased, among other things, a one-thirteenth interest in a condominium titled solely in Mr. Foreman's name, a Cadillac, a Jaguar, two boats, various antique furnishings, silverware and an oriental rug. Much of this property was purchased with money from the settlement.

The Foremans had also agreed initially to place $25,000 of the settlement funds in an emergency reserve account for Mrs. Foreman's benefit. Mr. Foreman, however, withdrew the $25,000 without Mrs. Foreman's knowledge. According to Mr. Foreman the money was used in the construction of the house.

Mr. Foreman left the marital domicile on June 8, 1980. Of the entire amount of money accumulated from the settlement, mortgage, sale of the first home and their salaries and income, only $2,106 remained in the joint account. This money Mr. Foreman acknowledged withdrawing to pay household bills prior to leaving. Both parties denied having savings or income from other assets. Though employed, Mrs. Foreman was still partially incapacitated.

Mrs. Foreman initiated this action for a divorce on the ground of adultery, alimony, sole ownership of the marital home and its contents, an accounting for and equitable division of other real and personal property and attorney's fees. Mr. Foreman did not contest the divorce but requested that he be granted an equitable share of all the marital property. With the exception of an award to Mr. Foreman of a 1975 Jaguar with a $5,500 lien and the household furnishings in his possession, which Mrs. Foreman testified were a mattress, box springs, bed, television and some "kitchen stuff", the court awarded Mrs. Foreman all of the parties' real and personal property. In addition, Mrs. Foreman was awarded alimony of $200 a month and attorney's fees of $1,500.

On appeal, Mr. Foreman assigns error to the court's ruling with respect to three of its provisions. First, he contends the court erred in equitably apportioning the marital property. Second, he asserts the evidence fails to support a need for the alimony awarded by the court. Third, Mr. Foreman argues that the court erred in finding that the nature of the case merited an award of attorney's fees of $1,500 and in providing for the direct award of the fee to counsel for Mrs. Foreman. In a fourth assignment of error, Mr. Foreman contends the court erred in denying him, through counsel, the opportunity to orally argue an appropriate equitable distribution of the marital assets.

With reference to the distribution of the property, Mr. Foreman contends that the court erred in failing to adequately identify the property available for distribution and in making a grossly unequal distribution based on findings unsupported by the record.

The ultimate objective of the family court in effecting a division of the marital property is to do so fairly and equitably. We are fully aware that the family courts of South Carolina are hampered in achieving this objective by the lack of detailed statutory and judicial guidelines on the appropriate factors to be considered in apportioning the property and the weight to be accorded such factors. The South Carolina Supreme Court, however, has enunciated three factors which family courts are to consider in determining the proper portion of marital property that is owned in equity by each spouse: (1) the relative incomes and material contributions of the parties, Burgess v. Burgess, 277 S.C. 283, 286 S.E.2d 142 (1982); (2) the relative fault of the parties in causing the divorce, Simmons v. Simmons, 275 S.C. 41, 267 S.E.2d 427 (1980); and (3) the debts and nonmarital properties of each of the parties, Levy...