Hardwick v. Hardwick

Decision Date12 November 1990
Docket NumberNo. 1579,1579
Citation399 S.E.2d 791,303 S.C. 256
CourtSouth Carolina Court of Appeals
PartiesGerald W. HARDWICK, Appellant, v. Diana L. HARDWICK, Respondent. . Heard

John B. Thomas and Joseph W. Ginn, III, of Thomas & Ginn, Charleston, for appellant.

Paul N. Uricchio, Jr., of Uricchio, Howe, Krell, Jacobson, Toporek & Theos, Charleston, for respondent.

Jania Sommers, Charleston, guardian ad litem.

CURETON, Judge:

In this domestic action the husband appeals the trial court's order concerning custody, exclusive possession of the marital home, equitable distribution, attorney fees, and court costs. We affirm in part, reverse in part, and remand.

The parties were married in 1971 and divorced in January 1988. They have three children, two daughters and a son. The oldest daughter is now 18 years of age. The wife was awarded custody of the unemancipated daughter and the father received custody of the son. The husband stipulated during oral argument that the issues concerning custody of the children and possession of the marital home have been abandoned by him and are not before us on appeal.

EQUITABLE DISTRIBUTION

The court awarded the husband sixty-five percent of the marital property and the wife thirty-five percent. The husband challenges this award claiming the court did not properly consider the fault of the wife in the breakup of the marriage nor his contributions to the accumulation of the marital estate. We disagree. The trial court's order makes clear factual findings that the wife's adulterous relationship and failure to support the husband in his career development adversely affected the economic status of the parties. Additionally, the court found the husband's direct contributions to the marital estate far exceeded those of the wife.

S.C.Code Ann. Section 20-7-472 (Supp.1989) requires the family court to consider fifteen (15) specific factors in making an apportionment of a marital estate. The husband would have us focus primarily on the fault of the wife and the direct contributions of the parties. While much weight must be given to these factors in the instant case, the other factors must also be given due consideration. In addition to the two factors just mentioned the trial court considered the length of the marriage; the fact the husband's future income will far exceed the wife's; the wife's uncertain health future; the wife's need for additional education and training; and the husband's greater potential for amassing assets in the future.

The husband also argues that in addition to failing to give him proper credit for his direct contributions to the marriage partnership, the trial court failed to consider the quality of the wife's indirect contributions. In fact, the husband argues that during the last years of the marriage the wife not only ignored her duties as wife and mother but her conduct became burdensome and destructive to the economic and emotional health of the marriage. The Equitable Apportionment of Marital Property Act provides the "court shall consider the quality of the contribution as well as its factual existence." Section 20-7-472(3). Here, there is evidence, particularly during the last year of the marriage, the wife's conduct negatively impacted on the marriage partnership.

On the other hand, a consideration of the wife's contributions and conduct over the course of the marriage leads to the inescapable conclusion that she was a good mother and made substantial and valuable contributions to the marriage. It is difficult, at best, for a family court judge to value indirect contributions. It is even more difficult for this court to value those contributions based upon the appellate record. For that reason we defer to the discretion of the trial court whose findings and conclusions in this area will not be disturbed on appeal absent an abuse of discretion. Phillips v. Phillips, 290 S.C. 455, 351 S.E.2d 178 (Ct.App.1986). We find no abuse of discretion in the case sub judice.

The husband next argues the court erred in finding the parties had divided their furnishings and certain other items of personal property and each party should retain those items in his or her possession. We agree. The husband prayed for a distribution of the personal property and submitted a list of properties and their values. The wife submitted a partial listing. The husband valued this property at around $20,000 while the wife valued it at $5,500. The court did not value the personal property nor divide it. This was error and we remand this aspect of the equitable division award to the family court for valuation and redistribution. See Johnson v. Johnson, 296 S.C. 289, 372 S.E.2d 107 (Ct.App.1988), cert. denied, 298 S.C. 117, 378 S.E.2d 445 (1989).

The husband also assigns error to the trial judge's division of certain marital assets. The court awarded the husband two individual retirement accounts valued at $6,747.22; his pension and profit sharing plan valued at $22,957.26; his Wal-Mart stock valued at $6,510; and a 35.9 percent share of the net proceeds from the sale of the marital home. The wife was awarded her individual retirement account valued at $1,200 and a 64.1 percent interest in the marital home. The husband claims this was error because his retirement plan's current liquidated value is less than the $22,957.26 value assigned to it by the court. He also claims the IRAs are not worth their face value because he cannot liquidate them without tax consequences and penalties. On the other hand, he argues the wife may liquidate her share in the marital home...

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11 cases
  • Dodge v. Dodge
    • United States
    • South Carolina Court of Appeals
    • 20 avril 1998
    ...court's failure to award him attorney fees. The award of attorney fees is within the discretion of the court. Hardwick v. Hardwick, 303 S.C. 256, 399 S.E.2d 791 (Ct.App.1990). This has been a lengthy legal dispute. Even though the stepfather and grandparents were successful at the trial of ......
  • Shorb v. Shorb
    • United States
    • South Carolina Court of Appeals
    • 19 mars 2007
    ...subject to division.'" (quoting Ferguson v. Ferguson, 300 S.C. 1, 386 S.E.2d 267 (Ct. App.1989))); Hardwick v. Hardwick, 303 S.C. 256, 259-60, 399 S.E.2d 791, 793 (Ct. App.1990) (finding employer's contribution to vested retirement fund was a form of additional compensation and constituted ......
  • Mazzone v. Miles
    • United States
    • South Carolina Court of Appeals
    • 12 juin 2000
    ...on the issues raised in his Counterclaim. The award of attorney's fees is within the discretion of the court. Hardwick v. Hardwick, 303 S.C. 256, 399 S.E.2d 791 (Ct.App.1990). In determining whether to award attorney's fees, the court should consider each party's ability to pay his or her o......
  • Wilburn v. Wilburn
    • United States
    • South Carolina Supreme Court
    • 8 mai 2013
    ...303 S.C. 391, 392–93, 401 S.E.2d 157, 158 (1991) (considering vested military retirement benefits); Hardwick v. Hardwick, 303 S.C. 256, 259–60, 399 S.E.2d 791, 793 (Ct.App.1990) (considering a vested retirement fund). We have consistently held that a retirement benefit earned during the mar......
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1 books & journal articles
  • § 7.10 Pensions
    • United States
    • Full Court Press Divorce, Separation and the Distribution of Property Title CHAPTER 7 Property Acquired or Improved with Both Separate and Marital Property
    • Invalid date
    ...Marriage of Rogers, 45 Ore. App. 885, 609 P.2d 877, modified 47 Ore. App. 963, 615 P.2d 412 (1980). South Carolina: Hardwick v. Hardwick, 303 S.C. 256, 399 S.E.2d 791 (S.C. App. 1990). South Dakota: Bell v. Bell, 499 S.W.2d 145 (S.D. 1993). Washington: DeRevere v. DeRevere, 5 Wash. App. 741......

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