Funderburk v. Funderburk, 2018-001173

CourtCourt of Appeals of South Carolina
Writing for the CourtPER CURIAM
Decision Date08 December 2021
PartiesShellie A. Funderburk, Respondent, v. Brian D. Funderburk, Appellant.
Docket NumberAppellate Case 2018-001173,2018-001173

Shellie A. Funderburk, Respondent,

Brian D. Funderburk, Appellant.

No. 2018-001173

Appellate Case No. 2018-001173

Court of Appeals of South Carolina

December 8, 2021


Submitted June 1, 2021

Appeal From Richland County Gwendlyne Y. Jones, Family Court Judge

Matthew B. Rosbrugh, of MBR Law, LLC, of Columbia, for Appellant.

Shellie A. Funderburk, pro se, of Cayce.


In this divorce action, Brian D. Funderburk (Husband) appeals the family court's decision on several issues involving marital property as well as the determination that his and Shellie A. Funderburk's (Wife) oldest child together was emancipated. We affirm.


1. The family court did not commit reversible error when it allowed evidence regarding (1) the home where the parties lived during the marriage and (2) firearms Husband owned. Husband contends the family court erred in not excluding the evidence because Wife did not identify the home or firearms as marital assets during the discovery process. He asserts she did not list the home or the firearms as marital assets in her responses to his interrogatory requesting Wife "Separately Identify . . . Property [Wife] Contends Is Marital In Nature." He further maintains Wife did not identify two witnesses she intended to call at trial in her discovery responses-the individual who conducted the property appraisal and the individual who performed an appraisal of the firearms. Husband argues he was prejudiced by these failures because he would have taken different positions and made different discovery decisions. Husband further contends the family court erred in denying his motions for sanctions relating to this evidence.

The appellate court reviews decisions of the family court de novo. Lewis v. Lewis, 392 S.C. 381, 386, 709 S.E.2d 650, 652 (2011). "[T]he standard for reviewing a family court's evidentiary or procedural rulings . . . [is] an abuse of discretion standard." Stoney v. Stoney, 422 S.C. 593, 594 n.2, 813 S.E.2d 486, 486 n.2 (2018) (per curiam). "An abuse of discretion occurs when the order of the court is controlled by an error of law or whe[n] the order is based on factual findings that are without evidentiary support." Rouvet v. Rouvet, 388 S.C. 301, 308, 696 S.E.2d 204, 207 (Ct. App. 2010). "The decision to impose sanctions is one in equity, and thus the appellate court reviews the circuit court's factual findings de novo." Pee Dee Health Care, P.A. v. Est. of Thompson, 424 S.C. 520, 538 n.11, 818 S.E.2d 758, 768 n.11 (2018). "If the appellate court agrees with the factual findings, then it reviews the circuit court's decision to impose sanctions . . . for an abuse of discretion." Id.

The family court is charged with identifying marital property. See Avery v. Avery, 370 S.C. 304, 313, 634 S.E.2d 668, 673 (Ct. App. 2006) ("When making an equitable distribution of marital property, the family court is charged with identifying the marital property and determining the property's fair market value."); see also S.C. Code Ann. § 20-3-630(A) (2014) (providing marital property includes all real and personal property the parties acquired during the marriage and owned as of the date of filing or commencement of marital litigation).

A trial court has a duty to "ascertain[] the type of witness involved and the content of his evidence, the nature of the failure or neglect or refusal to furnish the witness'[s] name, and the degree of surprise to the other party, including prior knowledge of the name by said party." Callen v. Callen, 365 S.C. 618, 627, 620


S.E.2d 59, 63-64 (2005) (quoting Laney v. Hefley, 262 S.C. 54, 59-60, 202 S.E.2d 12, 14 (1974)). "After inquiring, the court has discretion whether to admit or exclude the testimony." Id. at 627, 620 S.E.2d at 64. "The decision of whether or not to allow a witness to testify who was not previously listed on answers to interrogatories rests within the sound discretion of the trial [court]." Bryson v. Bryson, 378 S.C. 502, 506, 662 S.E.2d 611, 613 (Ct. App. 2008) (alteration by court) (quoting Jumper v. Hawkins, 348 S.C. 142, 150, 558 S.E.2d 911, 915 (Ct. App. 2001)).

"Exclusion of a witness is a sanction which should never be lightly invoked." Id. (quoting Jumper, 348 S.C. at 149, 558 S.E.2d at 915)). The trial court must consider the following factors before excluding a witness:

(1) the type of witness involved; (2) the content of the evidence emanating from the proffered witness; (3) the nature of the failure or neglect or refusal to furnish the witness'[s] name; (4) the degree of surprise to the other party, including the prior knowledge of the name of the witness; and (5) the prejudice to the opposing party

Id. at 506-07, 662 S.E.2d at 613 (quoting Jumper, 348 S.C. at 152, 558 S.E.2d at 916)); see also Jenkins v. Few, 391 S.C. 209, 219, 705 S.E.2d 457, 462 (Ct. App. 2010) ("Before excluding a witness as a sanction for violating the continuing duty to disclose information the trial court should ascertain (1) the type of witness involved, (2) the content of the evidence, (3) the explanation for the failure to name the witness in answer to the interrogatory, (4) the importance of the witness's testimony, and (5) the degree of surprise to the other party.").

"An affirmative duty does exist to answer interrogatories . . . ." CFRE, LLC v. Greenville Cnty. Assessor, 395 S.C. 67, 83, 716 S.E.2d 877, 885 (2011). "Each interrogatory shall be answered separately and fully in writing under oath, unless it is objected to, in which event the reasons for objections shall be stated in lieu of an answer." Rule 33(a), SCRCP; see also Rule 81, SCRCP (stating the South Carolina Rules of Civil Procedure apply in the family court as long as no family court rule is inconsistent). "Pursuant to Rule 33(b)(6), SCRCP, counsel has a duty to disclose 'any expert witnesses whom the party proposes to use as a witness at the trial of the case.'" Jenkins, 391 S.C. at 219, 705 S.E.2d at 462.

"Where [the rights of discovery provided by the Rules] are not accorded, prejudice must be presumed and, unless the party who has failed to submit to discovery can


show a lack of prejudice, reversal is required." Downey v. Dixon, 294 S.C. 42, 46, 362 S.E.2d 317, 319 (Ct. App. 1987). In CFRE, LLC, the supreme court noted: "[P]rejudice must be presumed and, unless the party who has failed to submit to discovery can show lack of prejudice, reversal is required." 395 S.C. at 83, 716 S.E.2d at 886 (alteration and emphasis added by court) (quoting Downey, 294 S.C. at 46, 362 S.E.2d at 319).

Husband suffered no surprise or prejudice from the admission of evidence related to the home or the firearms. First, Wife's complaint referred to the property as "the marital residence" and requested it be subject to equitable division. Husband's answer also referred to the property as the marital residence. See Smith v. Smith, 386 S.C. 251, 261, 687 S.E.2d 720, 726 (Ct. App. 2009) ("Rule 8(f)[, SCRCP, ] requires courts to construe pleadings so 'as to do substantial justice to all parties.'"); id. ("To ensure substantial justice to the parties, the pleadings must be liberally construed." (quoting Gaskins v. S. Farm Bureau Cas. Ins. Co., 343 S.C. 666, 671, 541 S.E.2d 269, 271 (Ct. App. 2000), aff'd as modified on other grounds, 354 S.C. 416, 581 S.E.2d 169 (2003))). Additionally, the family court had previously ordered both the home and the firearms be appraised. The family court's consent temporary order required the parties to have the marital residence appraised if they could not...

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