Fuller v. Fuller

• Decision Date: 11 September 2006
• Docket Number: No. 4150.,4150.
• Citation: 636 S.E.2d 636
• Court: South Carolina Court of Appeals
• Parties: Elaine M. FULLER, Respondent, v. William F. FULLER, Appellant.

636 S.E.2d 636

Elaine M. FULLER, Respondent, v. William F. FULLER, Appellant.

No. 4150.

Court of Appeals of South Carolina.

Heard June 6, 2006.

Decided September 11, 2006.

Rehearing Denied November 9, 2006.

COPYRIGHT MATERIAL OMITTED

Richard H. Rhodes, of Spartanburg, for Appellant.

David Alan Wilson and Kenneth C. Porter, both of Greenville, for Respondent.

BEATTY, J.:

In this domestic action, William F. Fuller (Husband) appeals the awards of equitable distribution, alimony, and expert fees to his former wife, Elaine M. Fuller (Wife). Husband also appeals the finding that a real estate holding company was a marital asset. We affirm in part, reverse in part, and remand.

FACTS

Husband and Wife married in 1980, and two children were born of the marriage: William in 1982, and Brittany in 1985. When the couple first married, Wife was employed at South Carolina National Bank. Later, the couple moved to Charlotte and Wife began working in a clothing boutique. During this time, Husband worked at Owens Corning. While Husband and Wife lived in Charlotte, they became interested in selling real estate and attended classes. Upon finishing, they relocated to Greenville, where both still reside. Wife continued to work in real estate until the birth of the couple's children. At that point, Wife became the party primarily responsible for caring for the children and taking care of the home. The couple and their children lived an affluent lifestyle. The parties had a large home in an exclusive area of Greenville, belonged to a country club, and took numerous family vacations. Wife stated that she did not really think about money and bought whatever she wanted for herself and the children.

Early in the marriage, Husband began to work at American Federal Bank and simultaneously began a residential construction company, Fulco Homes (Fulco). Husband and Wife were each fifty percent shareholders in the company. After eight years, Husband was able to pursue Fulco full-time. In exchange for periodically working as a decorator and doing whatever else needed to be done for Fulco, Wife received a salary of $18,000 from Fulco. Husband began Fulco with a loan from his aunt that he repaid in monthly installments with interest. When Husband's aunt died, the unpaid balance of the loan amounted to over $200,000. However, Husband was the beneficiary of aunt's estate, and the debt was forgiven.

Husband and Wife each had interests in numerous companies. In 1989, Husband formed CF Enterprises, a real estate holding company, with his cousin, Ben Crumpler. Wife's father started Maxwell Family, LLC, (Maxwell Family), which owned a one-third interest in Stonehaven Subdivision Development and various other properties held just for investment purposes. Wife's father gave a fifteen point ninety-four percent interest in Maxwell Family to Wife and a five percent interest to Husband. Both of these interests were gifts, and it is undisputed they are nonmarital. In 2002, Wife received $74,000 from Maxwell Family and Husband received $26,000. In 2003, by the time of the final hearing, Wife received $38,000 and expected to receive around $4,000 more. Because the neighborhood was being "developed out," there were fewer lots remaining and eventually the income from Maxwell Family would dissipate. Additionally, the parties' company, Fulco, did most of its building in the Stonehaven Subdivision.

Wife had interests in other family enterprises, including Maxwell Road Developers¹ and the Maxwell Family Trust. Wife's father also conveyed to Wife a one-ninth interest in Kensington Apartments, LLC (Kensington), which owned and managed one hundred sixty-eight apartment units. Wife received an income from Kensington of $2,500 per month.

In March 2002, Wife discovered Husband was having an affair, and she and Brittany moved to one of the apartment units at Kensington. On April 4, 2002, Wife filed the underlying action, seeking divorce on the ground of adultery, custody of Brittany, child support, alimony, and equitable division of the marital estate. Husband admitted his misconduct and also requested equitable division of the marital estate. At the temporary hearing, the family court awarded Wife custody of Brittany and ordered Husband to pay $1,800 a month in unallocated support.

The final hearing was held in October 2003. Husband and Wife agreed that the assets should, for the most part, be split evenly between the two. Although Wife blamed the breakup of the marriage on Husband's adultery, Husband blamed Wife's overspending and the parties' disagreements on rearing the children. After hearing testimony from both Husband and Wife, the family court granted Wife a divorce based on Husband's adultery. The family court found custody was not an issue because both children were over the age of eighteen, but the court ordered child support of $583 per month to support Brittany throughout her senior year of high school. The court also ordered Husband to pay Wife periodic alimony in the amount of $1,200 per month.

The court ordered a split of the remaining marital assets with forty-nine percent going to Husband and fifty-one percent going to Wife. This included CF Enterprises, which Husband maintained was nonmarital. The court ordered Husband to sell the marital home and awarded him eighty-five percent of the house's proceeds after the mortgage was fully paid. The court used the appraisal commissioned by Husband in assessing the value of the home for $650,000. Wife received several bank accounts and an IRA worth $250,000. Finally, the court ordered Husband to pay Wife's attorney's fees and various fees for experts used in assessing the value of the marital property.

Husband filed a timely motion to reconsider and argued, inter alia, that the marital home sold for $615,000 after the final hearing rather than the appraised value of $650,000. Husband asserted that because the court awarded him eighty-five percent of the proceeds of the house, his share of the marital assets was substantially reduced and he received closer to forty percent rather than the fifty percent envisioned by the parties. Further, Husband contended he was further prejudiced because the IRA, which the court awarded Wife, substantially increased after the final hearing. On reconsideration, the court adjusted the distribution to account for the inadvertent double counting of the value of a life insurance policy and likewise reduced Wife's interest in Husband's 401k to effectuate a fifty-one/forty-nine split. The court denied Husband's requests to consider the post-hearing increase in the value of the IRA and the actual sales price of the marital home in adjusting the marital distribution. This appeal followed.

STANDARD OF REVIEW

On appeal from the family court, this court has the authority to find facts in accordance with its own view of the preponderance of the evidence. Rutherford v. Rutherford, 307 S.C. 199, 204, 414 S.E.2d 157, 160 (1992). This broad scope of review does not require us to disregard the family court's findings, and we remain mindful of the fact the family court, who saw and heard the parties, is in a better position to evaluate their credibility and assign weight to their testimony. Cherry v. Thomasson, 276 S.C. 524, 525, 280 S.E.2d 541, 541 (1981).

LAW/ANALYSIS

I. Equitable Division

We first consider the equitable distribution award. Husband argues the family court's error in using the value of the marital home and the IRA provided at the time of the final hearing resulted in Husband receiving only a forty-two percent distribution of the marital assets. Specifically, Husband contends that in the six months between the time of the final hearing and when the family court issued the divorce decree, the marital home sold for $35,000 less than the appraisal and the IRA that was awarded to Wife increased in value by $40,000. Therefore, Husband maintains the family court's error resulted in his distribution of the marital estate being only forty-two percent rather than the fifty percent the parties agreed to. We disagree.

A. Time of Valuation

Generally, in South Carolina marital property subject to equitable distribution is valued as of the date marital litigation is commenced. Fields v. Fields, 342 S.C. 182, 186, 536 S.E.2d 684, 686 (Ct.App.2000); see Jamar v. Jamar, 308 S.C. 265, 267, 417 S.E.2d 615, 616 (Ct.App.1992) ("The proper date to value marital property is the time the marital litigation is filed or commenced."). However, "the parties may be entitled to share in any appreciation or depreciation in marital assets occurring after separation but before divorce." Fields, 342 S.C. at 186, 536 S.E.2d at 686 (emphasis added); Dixon v. Dixon, 334 S.C. 222, 228, 512 S.E.2d 539, 542 (Ct.App.1999) ("[G]iven the volume of cases handled by our family courts, there often is a substantial delay between commencement of an action and its ultimate resolution. Thus, it is not unusual for the value of marital assets to change, sometimes substantially, between the time the action was commenced and its final resolution. In such a case, the family court has the ability to consider the post-filing appreciation or depreciation when valuing and apportioning the marital estate.").

In the present case, Husband argues the family court erred in the date on which it valued the marital home and the IRA. Initially, we note that the family court valued the IRA at $250,798. The family court used the IRA's value on the date the final hearing was held rather than the value on the date litigation was commenced. Although the family court did not specify a reason for departing from the general rule that the valuation occurs the date litigation begins, we find the departure benefited Husband. The family court awarded Wife the IRA and any increase in value was taken into account because the family court gave each party nearly fifty percent of the marital estate.

Husband cites Mallett v. Mallett, 323 S.C....