Hunn v. Hunn

• Decision Date: 26 May 1986
• Docket Number: No. 0759,0759
• Citation: 289 S.C. 499,347 S.E.2d 108
• Court: South Carolina Court of Appeals
• Parties: Barbara Gore HUNN, Appellant, v. Erich Adam Ludwig HUNN, Respondent. . Heard

Page 108

347 S.E.2d 108

289 S.C. 499

Barbara Gore HUNN, Appellant, v. Erich Adam Ludwig HUNN, Respondent.

No. 0759.

Court of Appeals of South Carolina.

Heard May 26, 1986.

Decided July 28, 1986.

James B. Van Osdell and Cynthia Graham Howe, of Van Osdell, Lester, Stewart, McCutchen and Brittain, Myrtle Beach, for appellant.

Howell V. Bellamy, Jr., and Henrietta U. Golding, both of Bellamy, Rutenberg, Copeland, Epps, Gravely & Bowers, Myrtle Beach, for respondent.

GARDNER, Judge.

The appealed divorce decree (1) awarded custody of the two minor children to the wife, (2) ordered the husband to pay $400 per month child support, (3) distributed part of the property of the parties as equitable distribution and (4) provided that the two restaurant businesses owned by the parties remain as jointly held property, but that the husband manage the restaurants.

Prior to the hearing of this matter, the wife petitioned this court to appoint a receiver for the restaurant businesses. Because we remand the case, the petition for the appointment of receiver is denied.

The issues before us are (1) did the trial judge err in the award of child support and by allowing the husband to satisfy allegedly accrued child support payments by assuming a greater liability for a joint debt, (2) did the trial judge err by including the wife's nonmarital property when identifying the marital estate, (3) did the trial judge err in making the equitable distribution award and (4) did the trial judge err in failing to dissolve the joint ownership of the restaurant businesses.

The parties were married in 1971 and from this marriage there are two children: a son aged 11 at the time of the divorce and a daughter aged 9 at the time of the divorce.

The wife on September 15, 1982, sued the husband for a legal separation praying for alimony, child support and for use of the marital home and its contents, equitable division of the marital estate and attorney fees.

A pendente lite hearing was held on October 6, 1982. Just before entering the hearing room, the parties allegedly entered into an agreement whereby it was agreed that the parties each owned a 50 percent interest in the properties owned by the parties individually or as tenants in common. The alleged agreement was announced by the attorneys at the hearing, but no testimony was taken pertaining to the agreement and the court did not make a finding about the fairness of the alleged agreement. Thereafter, the wife became dissatisfied with the alleged agreement, her father died, and her attorney notified the husband's attorney of the wife's objection to including the agreement in the proposed order.

On January 5, 1983, before a pendente lite order was filed, the trial court held a second pendente lite hearing. The testimony of this hearing is not of record but it appears from orders subsequently referred to herein that the issue of whether the alleged agreement was binding on the wife was argued before the judge.

Thereafter, a temporary order drafted in October 1982, after the first hearing but dated January 28, 1983, recited the agreement of the parties which included the following:

8. That, during the pendency of this action and with the aid of their attorneys, the parties shall endeavor to reach a more permanent settlement agreement to be presented to this Court for approval.

Based upon the foregoing, it is hereby

ORDERED, ADJUDGED AND DECREED:

(a) That the temporary settlement agreement outlined above is hereby adopted as the Order of this Court.

(b) That the parties shall in good faith cooperate to effect the true intent and meaning of the temporary agreement.

AND IT IS SO ORDERED.

The trial judge issued another order on January 28, 1983, providing, inter alia, the following:

The matter was heard by the Court on January 5, 1983. The Petitioner was present and was represented by her attorney, H.E. McCaskill of Conway, South Carolina; the Respondent was present and was represented by his attorney, Howell V. Bellamy, Jr., of Myrtle Beach, South Carolina.

Prior to taking any testimony in the matter, the Court was advised by Howell V. Bellamy, Jr., that on October 6, 1982, a temporary hearing was held in this matter; and it was at that time that the parties had entered into a consent order which provided for the matters that the petitioner is now seeking by this hearing to vary. At that time, the Petitioner was represented by Edward T. Kelaher, Attorney-at-Law, Surfside Beach, South Carolina; and since that time, he was removed as counsel for the Petitioner and Petitioner's present attorney, H.E. McCaskill now represents the Petitioner.

The Court has reviewed the Temporary Order and the previous agreement and testimony of the parties in this matter, and is of the opinion that the Temporary Order is binding upon the parties and should remain in full force and effect.

Subsequently, the wife instituted a divorce suit; the husband counterclaimed for a divorce on the grounds of adultery.

A merit hearing on the divorce suit was held on April 26, 1984, and May 3, 1984. The trial judge entered his final order on July 11, 1984.

First, we remand the issue of child support. And in so doing we remind the bench and bar of the factors for consideration in awarding child support and the need for findings of fact and conclusions of law as to these factors which are set forth in Peebles v. Disher, 279 S.C. 611, 310 S.E.2d 823 (Ct.App.1984), as follows:

[T]he amount of child support a divorced parent is to pay must be determined by the court after it considers: (1) the needs of the minor child, (2) the incomes, earning capacities, and assets of both parents, (3) the health, age, and general physical conditions of both parents and (4) the necessities and living expenses of both parents.

The record does not contain a financial disclosure statement by the wife and the husband's financial disclosure statement reflects no information pertaining to his income, earning capacity or assets, but merely lists monthly expenses of $1,266.86. The husband testified that he averaged a net income of $1,200 monthly as a real estate broker and could only pay child support of $300--$400 per month. The trial judge apparently based the award for child support of the two children upon this limited evidence of the husband's earning capacity. We observe parenthetically at this point that if this is truly an indication of the husband's earning capacity, it is compelling evidence that the husband's percentage contribution to the marital...