Hickum v. Hickum

Decision Date30 October 1995
Docket NumberNo. 2408,2408
Citation463 S.E.2d 321,320 S.C. 97
PartiesDavid J. HICKUM, Appellant, v. Judy B. HICKUM, Respondent.
CourtSouth Carolina Court of Appeals

Hal J. Warlick, of Warlick Law Office, Easley, for appellant.

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

HEARN, Judge:

In this domestic action, husband appeals the date of valuation of the marital estate, the equitable apportionment of the parties' marital debt, the valuation of the wife's cosmetic business, alimony, and the inclusion of the parties' retirement plans in the marital estate. We affirm. 1

The parties married on July 20, 1963, and have one emancipated child. They separated in March of 1992 after wife discovered husband's adulterous relationship with a woman named Beth. 2 Wife filed an action for divorce on the ground of adultery on October 19, 1992. A pendente lite order was signed on November 23, 1992, in which husband was ordered to pay $400.00 per month towards satisfaction of a home equity loan on the marital residence. Pursuant to the administrative rules of the family court, the October 19 action was dismissed because it was not brought to trial within 270 days from the date of filing. FC ADMIN-5 (S.C.Sup.Ct. filed June 5, 1992). On September 20, 1993, husband filed for divorce on the ground of one year continuous separation. Wife counterclaimed for divorce based on adultery, and sought equitable apportionment of the marital estate, alimony and attorney's fees. The trial judge granted wife a divorce on the ground of adultery. The trial judge also ordered a fifty-fifty division of the marital property, which she identified and valued as of September 20, 1993, and awarded wife permanent, periodic alimony of $475.00 per month and attorney's fees. Husband appeals.

I.

Husband contends the trial judge erred when she included the parties' retirement plans in the marital estate. We disagree. In applying S.C.Code Ann. § 20-7-473 (Supp.1994) this court held: "Since retirement plans were not excluded by the act, retirement plans are therefore includable as marital property subject to division." Ferguson v. Ferguson , 300 S.C. 1, 386 S.E.2d 267 (Ct.App.1989). Accordingly the trial judge properly considered the parties' respective retirement plans as marital property subject to equitable apportionment.

II.

Husband contends the family court judge erred in ruling that the filing date of the second action, September 20, 1993, was the operative date for identifying and valuing the marital estate. He argues that the marital litigation between these parties began on October 19, 1992, the date the wife commenced the prior action, and that the marital estate should be valued as of the date of separation. 3 In a related argument husband asserts that any property acquired by either party subsequent to the entry of the pendente lite order in the prior action should have been excluded from the marital estate pursuant to § 20-7-473(2). Therefore, the husband contends, the family court judge overvalued several marital assets, including husband's retirement account which increased from $116,944.73 to $129,047.99 from December 31, 1992, until September 20, 1993. 4

Appellant's argument that the trial judge erred in using the second filing date for valuation purposes has been rejected previously by this court. In Shannon v. Shannon, 301 S.C. 107, 112, 390 S.E.2d 380 (Ct.App.1990), this court interpreted § 20-7-473 and held the kind of litigation required "to trigger the statute must be the same litigation which brings about the equitable division." In refusing to link valuation to the filing date of a prior action between the parties, the court noted: "It is not enough that the parties in the past engaged in some litigation if that litigation did not serve as the vehicle for equitable division." Id.

The reasoning of Shannon, which furthers this State's public policy of preserving marriages, is applicable here. The operative litigation which "triggered" S.C.Code Ann. § 20-7-473 and brought about the equitable division was obviously the litigation which began on September 20, 1993, not the prior stricken litigation. Therefore, the family court judge correctly ruled that the marital assets should be valued as of September 20, 1993.

Husband also contends certain property should have been excluded from the marital estate because it increased in value or was "acquired" after the entry of the pendente lite order in the prior litigation. We disagree.

Section 20-7-473 defines marital property as all real and personal property acquired by the parties during the marriage and owned as of the date of filing or commencement of marital litigation. Subsection (2) of the statute creates an exception for property acquired after the entry of a pendente lite order and designates such assets as nonmarital property. While husband's argument that the pendente lite order in the prior, non-triggering action should operate to exclude certain property from the marital estate is an ingenious one, we reject it.

Section 20-7-473 is the vehicle which creates "marital property" to be equitably divided by the family court. While a litigant's ownership right in marital property is acquired during the marriage, " '[m]arital property' as such does not exist until the date when marital litigation is filed or commenced." Prosser v. Pee Dee State Bank, 295 S.C. 212, 214, 367 S.E.2d 698 (1988). Accord, Hopkins v. Hopkins, 295 S.C. 239, 367 S.E.2d 714 (Ct.App.1988). Thus, the "marital property" at issue here did not exist until September 20, 1993, at the time of the filing of this action. It would be incongruous to hold, as husband suggests, that a temporary order in a prior action should limit the definition of what constitutes marital property in this case, when the marital property itself did not even "exist" under the law until September 20, 1993. To accept husband's argument would be to permit "the tail to wag the dog," and would result in inconsistency and confusion. It would also punish the wife who failed to pursue her divorce action and be contrary to this State's public policy. 5 Consistent with the prior case law interpreting the statute, we hold that the action which brings about the equitable division is not only the triggering action for purposes of the identification and valuation of marital assets pursuant § 20-7-473, but also the triggering action for any pendente lite order which operates to exclude assets from the definition of marital property under subsection (2). We note this construction of § 20-7-473 is also consistent with prior case law which holds that both parties are entitled to share in any appreciation in marital assets which occurs after the parties separate and before the parties divorce. Smith v. Smith, 294 S.C. 194, 363 S.E.2d 404 (1987). 6

III.

Husband also asserts the trial judge erred when she ordered him to pay the "Visa/shop debt" as part of the equitable apportionment of the parties' debts. S.C.Code Ann. § 20-7-472 (Supp.1994) provides in pertinent part:

In making apportionment, the court must give weight in such proportion as it finds appropriate to all of the following factors:

(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;

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

Section 20-7-472 creates a presumption that a debt of either spouse incurred prior to marital litigation is a marital debt, and must be factored into the totality of equitable apportionment. The presumption is rebuttable. Hardy v. Hardy, 311 S.C. 433, 429 S.E.2d 811 (Ct.App.1993).

"Marital debt" has been defined as debt incurred for the joint benefit of the parties regardless of whether the parties are legally jointly liable for the debt or whether one party is legally individually liable. Id. at 437, 429 S.E.2d at 813. Moreover, the estate which is to be equitably divided by the family court judge is the net estate, i.e., provision for the payment of marital debts must be apportioned as well as the property itself. Therefore, basically the same rules of fairness and equity which apply to the equitable division of marital property also apply to the division of marital debts. Id.

The burden of proving a spouse's debt as nonmarital rests upon the party who makes such an assertion. If the trial judge finds that a spouse's debt was not made for marital purposes, it need not be factored into the court's equitable apportionment of the marital estate, and the trial judge may require payment by the spouse who created the debt for nonmarital purposes. However, the words "in such proportion as it finds appropriate," as used in § 20-7-472, accord much discretion to the trial judge in providing for the payment of marital debts as a consideration in the equitable division of the marital estate. Id. On review, this court looks to the fairness of the overall apportionment. In light of the entire equitable distribution of the marital estate, we find no abuse of discretion in apportioning the "Visa/shop debt" to husband.

IV.

Appellant further contends the trial judge erred when she considered the husband's live-in paramour's potential contributions to his household expenses when determining the amount of alimony awarded to wife. The trial judge's finding that the paramour "is or should be contributing to the joint household expenses that the husband is incurring" was simply a finding of fact and not directly related to the award of alimony. Rather, the trial judge stated she considered the factors as enumerated in S.C.Code Ann. § 20-3-130 (Supp.1994). She specifically found wife's expenses as related to her income resulted in a substantial deficit, and to maintain...

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    ...litigation, the party claiming the debt is nonmarital bears the burden to overcome that presumption. See also Hickurn v. Hickum, 320 S.C. 97, 463 S.E.2d 321 (Ct.App.1995) (stating the burden of proving a spouse's debt as nonmarital rests on the party who makes such an assertion). In the ins......
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