Hough v. Hough

Decision Date09 December 1993
Docket NumberNo. 2117,2117
Citation312 S.C. 344,440 S.E.2d 387
PartiesKay Hilton HOUGH, Respondent, v. Robert Lester HOUGH, Jr., and June Hough, Defendants, of whom Robert Lester Hough, Jr., is Primary Appellant and June Hough is Secondary Appellant. . Heard
CourtSouth Carolina Court of Appeals

Michael L. Brown, Jr.; William H. Godbold, III; Charles M. Blackwell; and Charles H. Chiles, Rock Hill, for appellants.

Peter M. Perrill and Thomas F. McDow, Rock Hill, for respondent.

SHAW, Judge:

The wife, Kay Hilton Hough, brought an action for divorce, and the husband, Robert Lester Hough, Jr., counterclaimed for divorce on the ground of adultery. From the court's order of divorce, the husband appeals the award of attorneys' fees, as well as the valuation, distribution and division of the marital estate. The husband's mother, June Hough, appeals the court's determination that the marital home titled in her name was marital property. We affirm as modified.

The husband and wife were married in 1984, and had two children, Robert Lester Hough, III, born December 17, 1984, and John Tyler Hough, born June 30, 1988. The wife has experienced extreme emotional and psychological difficulties requiring hospitalization at times, and admitted having an extra-marital affair.

The trial court granted the husband a divorce on the ground of adultery, awarded custody of the children to the husband's mother, with visitation to the wife, awarded the wife 40% of the marital estate and the husband 60%, and awarded the wife attorneys' fees.

The trial judge concluded the marital home, although titled in the name of the husband's mother, was actually marital property. He awarded the marital business, a Nissan automobile, the marital home, and the husband's jewelry to the husband. He awarded a Cadillac automobile and the wife's jewelry to the wife. He placed no value on the husband's or wife's jewelry nor on the household goods, but ordered the "unappraised assets shall be appraised within 10 days of the Decree and if the parties have not resolved the distribution of these assets within 30 days, this Court will." He further ordered the husband to make up the difference in cash within 30 days to effectuate a 40% award for the wife. Two months later in a subsequent order, the trial judge valued the wife's jewelry in the husband's possession at $7,040 and a doll collection at $8,139. He ordered the husband to return the wife's jewelry in his possession or pay its value to the wife, but awarded the husband the doll collection. Because the values and distribution of the household goods were still unresolved, the trial judge ordered them sold at public auction with 60% of the proceeds going to the husband and 40% to the wife.

I.

On appeal, the Husband argues the court erred in awarding attorneys' fees, essentially because the wife did not obtain beneficial results. We disagree.

The trial court made extensive findings on this issue and determined the fees requested were reasonable, the wife could not afford to pay her fees, the wife obtained beneficial results on equitable apportionment issues and visitation, and she did not contest issues upon which she was not entitled to relief. The court considered the appropriate factors, and we see no abuse of discretion. See Glasscock v. Glasscock, 304 S.C. 158, 403 S.E.2d 313 (1991), 1 see also Stevenson v. Stevenson, 295 S.C. 412, 368 S.E.2d 901 (1988) (attorney fees are in the sound discretion of the family court and will not be disturbed absent abuse of discretion).

II.

The husband next argues the court erred in its distribution of the marital estate. He claims the court should have attempted an "in kind" distribution of the assets instead of awarding the husband virtually all of the property and ordering him to pay the wife her share in cash. The trial court should effectuate an "in kind" distribution of marital property where possible. Donahue v. Donahue, 299 S.C. 353, 384 S.E.2d 741 (1989). However, under the circumstances of this case in which the marital home is situated across from the husband's parents' home, and the jewelry business is operated by the husband 2, we see no abuse of discretion in the court's decision not to effectuate an "in kind" distribution of the major marital assets. See Morris v. Morris, 295 S.C. 37, 367 S.E.2d 24 (1988) (equitable distribution of marital property is within the discretion of the trial court).

III.

The husband also argues the court erred in its valuation and distribution of the marital estate. Specifically, he contends the court failed to value and distribute the wife's jewelry, his jewelry, and the household goods. We note that the court did value the wife's jewelry in the husband's possession, ordering the husband to return the wife's jewelry or pay her $7,040. In doing so, he clearly accepted the valuation of this personal property as submitted by the wife. This valuation was part of a total valuation of the wife's jewelry, including that which she had in her possession. The remainder of the wife's jewelry in her possession was valued at $2,875 and we therefore accept this figure for purposes of determining equitable distribution there being no valuation to the contrary submitted by the husband. As to the husband's jewelry, the record also reflects the wife submitted a similar list of his jewelry and valuations. The husband offered no valuations to the contrary and disputed only whether 5 of the items were marital property. Excluding the 5 items from the list, we find the value of this property to be $8,075. Finally, as to the household goods, the husband offered no evidence on the existence or value of this property and refused to state his position when questioned on the same. It was within the trial judge's discretion to order the property sold and a 60%/40% split effectuated. The husband having failed to present any evidence on the issue should not now complain. See Honea v. Honea, 292 S.C. 456, 357 S.E.2d 191 (Ct.App.1987) (the burden is on appellant to show the family court committed reversible error and a party cannot sit back at trial without offering proof, then come to the appellate court complaining of the insufficiency of evidence to support the family court's findings). Accordingly, we affirm the order concerning the household goods and modify the order to reflect the above values for the jewelry.

IV.

June Hough, as secondary appellant, appeals the court's finding that the marital home, titled in her name, was actually marital property. We affirm the trial court's finding.

True ownership of the house was greatly contested, although June Hough is the owner of record. The parties testified as follows:

Wife

The wife testified the husband bought the lot on which the house was built for $3,500 and put it in his mother's name. She testified the husband then gave his mother cash to build the house because he was not working at the time and could not put the house in his name without arousing the IRS.

The wife testified her mother-in-law handled the building of the house, and the husband periodically gave his mother cash payments to cover costs. Specifically, the wife recalled seeing the husband give her approximately $10,000 in cash. She explained further that her husband dealt almost exclusively in cash. She said he earned much of his money from booking ball games, and that she kept the books for him.

The wife claimed she knew nothing about construction or decoration, and that she left much of the decision making to her mother-in-law. But the wife said she helped pick out wallpaper, and paid her brother to install wrought iron rails around the front porch.

Husband

The husband denied having anything to do with the construction of the house save for recommending his mother install a large bathtub in one of the bathrooms. He claimed his mother picked out the carpet, painted and wallpapered, refinished the cabinets, and made the drapes. The husband denied giving his mother any money to build the house.

The house has required no upkeep. The husband did not recall who paid the taxes, but admitted taking out a homeowner's policy on the house. He has not paid his mother any rent.

The husband admitted gambling two to four evenings a week, but asserted his Fifth Amendment right against self-incrimination when asked if he ever booked a ball game. He admitted he and his wife would take trips to Las Vegas or Atlantic City, carrying a total of as much as $20,000 in cash.

The husband reported no income to the IRS for the years 1984, 1985 and 1986.

Husband's Mother

June Hough testified that she bought the lot the house was built on for $3,364.85, and presented documents relating to the transaction. She claimed she paid all construction costs, totalling approximately $40,000, and that the husband and wife in no way contributed to the construction.

She testified she paid the taxes on the house. She said she agreed to let the husband and wife move into the house, although she initially intended to build it as an investment.

She described financially assisting the husband throughout his adult life. She testified that, before the house was built, when the husband and wife first got married, she allowed them to live in a trailer on property she owned, and that she paid for a number of repairs to the trailer. She...

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