Fredrickson v. Schulze

• Decision Date: 13 April 2016
• Docket Number: Appellate Case No. 2014–000570.,No. 5400.,5400.
• Parties: Malia Ann FREDRICKSON, Respondent, v. Jeffrey Lawrence SCHULZE, Appellant.
• Court: South Carolina Court of Appeals

416 S.C. 141

785 S.E.2d 392

Malia Ann FREDRICKSON, Respondent,

v.Jeffrey Lawrence SCHULZE, Appellant.

Appellate Case No. 2014–000570.

No. 5400.

Court of Appeals of South Carolina.

Heard Dec. 7, 2015.

Decided April 13, 2016.

Christian Stegmaier, of Collins & Lacy, P.C., of Columbia, for appellant.

Bruce Wyche Bannister and Luke Anthony Burke, both of Bannister, Wyatt & Stalvey, LLC, of Greenville, for respondent.

SHORT

, J.

Jeffrey Lawrence Schulze (Husband) appeals the family court's divorce decree, arguing the court erred in (1) its identification, valuation, and apportionment of the marital estate and (2) ordering Malia Ann Fredrickson (Wife) and Husband to be responsible for his and her own attorney's fees. We affirm.

FACTS

Husband and Wife were married in 2005. Husband and Wife relocated to Greenville, South Carolina, and Husband began working as an independent insurance agent. Husband also managed properties titled in Wife's name and the couple's limited liability company, JFS, LLC (JFS), named after the parties' son's initials. Husband's highest level of education is a high school General Education Development (GED) diploma with some college classes. Wife is a dentist and a partner in two dental practices. Wife earned eighty-four percent of the parties' income during the marriage. The couple has one son.

Wife filed for divorce on the ground of habitual drunkenness. Prior to trial, Wife amended her complaint to include adultery. Husband countersued for divorce on the ground of one-year's separation.

A trial was held on November 12 and 13, 2013. The family court entered its final order and decree on January 10, 2014. The court granted a divorce, ordered equitable apportionment of the estate, ordered Husband to pay monthly child support to Wife, and denied both parties' requests for attorney's fees. The court also found Husband in contempt of a prior order regarding communication between the two parties during the pendency of the proceedings. Husband filed a motion pursuant to Rules 52

and 59, SCRCP, seeking alteration and/or amendment of the final order. Wife also filed a motion to reconsider. On February 11, 2014, the court issued an order addressing the cross-motions and modifying certain valuations of the marital properties. These modifications increased Husband's share of the marital estate by $5,200 and Wife's share of the marital estate by $5,407. Husband appeals both orders.

STANDARD OF REVIEW

“In appeals from the family court, this [c]ourt reviews factual and legal issues de novo.” Simmons v. Simmons, 392 S.C. 412, 414, 709 S.E.2d 666, 667 (2011)

. “[T]he appellate court has jurisdiction to find facts in accordance with its view of the preponderance of the evidence. However, this broad scope of review does not require this [c]ourt to disregard the findings of the family court.” Lewis v. Lewis, 392 S.C. 381, 384, 709 S.E.2d 650, 651 (2011) (quoting Eason v. Eason, 384 S.C. 473, 479, 682 S.E.2d 804, 807 (2009) ). This court will affirm the decision of the family court unless the decision is controlled by an error of law or the appellant satisfies the burden of showing the preponderance of the evidence supports contrary factual findings. DiMarco v. DiMarco, 399 S.C. 295, 299, 731 S.E.2d 617, 619 (Ct.App.2012).

LAW/ANALYSIS

I. Marital Estate

Husband argues the family court erred in its identification, valuation, and apportionment of the marital estate. We disagree.

Section 20–3–620(B) of the South Carolina Code

(2014) provides fifteen factors for the family court to consider in apportioning marital property and affords the family court the discretion to give weight to each of these factors as it finds appropriate:

(1) the duration of the marriage together with the ages of the parties at the time of the marriage and at the time of the divorce or separate maintenance or other marital action between the parties; (2) marital misconduct or fault of either or both parties, whether or not used as a basis for a divorce as such, if the misconduct affects or has affected the economic circumstances of the parties, or contributed to the breakup of the marriage; provided, that no evidence of personal conduct which would otherwise be relevant and material for purposes of this subsection shall be considered with regard to this subsection if such conduct shall have taken place subsequent to the happening of the earliest of:

(a) entry of a pendente lite order in a divorce or separate maintenance action;

(b) formal signing of a written property or marital settlement agreement; or

(c) entry of a permanent order of separate maintenance and support or of a permanent order approving a property or marital settlement agreement between the parties;

(3) the value of the marital property, whether the property be within or without the State. The contribution of each spouse to the acquisition, preservation, depreciation, or appreciation in value of the marital property, including the contribution of the spouse as homemaker; provided, that the court shall consider the quality of the contribution as well as its factual existence;

(4) the income of each spouse, the earning potential of each spouse, and the opportunity for future acquisition of capital assets;

(5) the health, both physical and emotional, of each spouse;

(6) the need of each spouse or either spouse for additional training or education in order to achieve that spouses's income potential;

(7) the nonmarital property of each spouse;

(8) the existence or nonexistence of vested retirement benefits for each or either spouse;

(9) whether separate maintenance or alimony has been awarded;

(10) the desirability of awarding the family home as part of equitable distribution or the right to live therein for reasonable periods to the spouse having custody of any children; (11) the tax consequences to each or either party as a result of any particular form of equitable apportionment;

(12) the existence and extent of any support obligations, from a prior marriage or for any other reason or reasons, of either party;

(13) liens and any other encumbrances upon the marital property, which themselves must be equitably divided, or upon the separate property of either of the parties, and any other existing debts incurred by the parties or either of them during the course of the marriage;

(14) child custody arrangements and obligations at the time of the entry of the order; and

(15) such other relevant factors as the trial court shall expressly enumerate in its order.

“The division of marital property is in the family court's discretion and will not be disturbed absent an abuse of that discretion.” Doe v. Doe, 370 S.C. 206, 213, 634 S.E.2d 51, 55 (Ct.App.2006)

(citing Craig v. Craig, 365 S.C. 285, 290, 617 S.E.2d 359, 361 (2005) ). “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.” Id. at 213–14, 634 S.E.2d at 55 (citing 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.” Id. at 214, 634 S.E.2d at 55.

Marital property is defined as “all real and personal property which has been acquired by the parties during the marriage and which is owned as of the date of filing or commencement of marital litigation ... regardless of how legal title is held....” S.C.Code Ann. § 20–3–630(A) (2014)

. Property acquired by either party before the marriage constitutes nonmarital property. S.C.Code Ann. § 20–3–630(A)(2) (2014). Nevertheless,

[p]roperty that is nonmarital when acquired may be transmuted into marital property if it becomes so commingled with marital property that it is no longer traceable, is titled jointly, or is used by the parties in support of the marriage or in some other way that establishes the parties' intent to make it marital property.

Wilburn v. Wilburn, 403 S.C. 372, 384, 743 S.E.2d 734, 740 (2013)

(citing Trimnal v. Trimnal, 287 S.C. 495, 497–98, 339 S.E.2d 869, 871 (1986) ). “As a general rule, transmutation is a matter of intent to be gleaned from the facts of each case.” Johnson v. Johnson, 296 S.C. 289, 295, 372 S.E.2d 107, 110 (Ct.App.1988). “The spouse claiming transmutation must produce objective evidence showing that, during the marriage, the parties themselves regarded the property as the common property of the marriage.” Id. at 295, 372 S.E.2d at 110–11. “Such evidence may include placing the property in joint names, transferring the property to the other spouse as a gift, using the property exclusively for marital purposes, commingling the property with marital property, using marital funds to build equity in the property, or exchanging the property for marital property.” Id. at 295, 372 S.E.2d at 111. “The mere use of separate property to support the marriage, without some additional evidence of intent to treat it as property of the marriage, is not sufficient to establish transmutation.” Id. at 295–96, 372 S.E.2d at 111. “A party claiming an equitable interest in property upon divorce bears the burden of proving the property is marital.” Wilburn, 403 S.C. at 382, 743 S.E.2d at 740 (citing Miller v. Miller, 293 S.C. 69, 71 n. 2, 358 S.E.2d 710, 711 n. 2 (1987) ). “If the party presents evidence to show the property is marital, the burden shifts to the other spouse to present evidence to establish the property's nonmarital character.” Id. at 382, 743 S.E.2d at 740 (citing Johnson, 296 S.C. at 294, 372 S.E.2d at 110 ).

Husband and Wife owned, as individuals or through JFS, several pieces of property in Greenville County. Husband appeals the family court's equitable apportionment of four properties. Specifically, Husband argues the court erred in (1) awarding credit to Wife in the amount of $60,000 in relation to a purported down payment she made at 3 Trails End; (2) determining 39 Druid Street was nonmarital...