Johnson v. Johnson, 0440

• Decision Date: 28 February 1985
• Docket Number: No. 0440,0440
• Parties: Jessie M. JOHNSON, Respondent, v. Albert B. JOHNSON, Appellant. . Heard
• Court: South Carolina Court of Appeals

Page 443

329 S.E.2d 443

285 S.C. 308

Jessie M. JOHNSON, Respondent, v. Albert B. JOHNSON, Appellant.

No. 0440.

Court of Appeals of South Carolina.

Heard Feb. 28, 1985.

Decided April 16, 1985.

James W. Corley, Columbia, for appellant.

Harvey L. Golden, Columbia, for respondent.

CURETON, Judge:

This is a divorce action. The family court awarded appellant Albert Johnson and respondent Jessie Johnson, each, a one-half equitable interest in the marital home but awarded its exclusive use and possession to Jessie Johnson until she dies or remarries. The husband appeals and contends the court erred in failing to provide for equitable division of the marital home. We reverse and remand.

Both parties are in their late fifties and have been married for twelve years. They have no children born of the marriage. The husband receives $600 a month in military retirement pay and the wife works out of the marital home as a hairdresser. Her income varies from $49 to $249 a month. She suffers from hypertension and allergies related to products she uses in her work. There was evidence the marital home, which was the chief asset of the parties, had a value ranging from less than $60,000 to $64,000. There was no evidence of the parties' equity in the home although during oral argument, counsel for the husband stated the mortgage balance was approximately $24,000 at the time of the divorce hearing.

In addition to awarding the wife exclusive use and possession of the marital home, the family court ordered the husband to pay $300 a month permanent alimony and one-half the taxes, insurance and maintenance on the home.

The husband concedes that pursuant to Section 20-7-420(15) of the 1976 Code of Laws of South Carolina the family court had authority to award the wife exclusive possession of the marital home as an incident of support. He argues, however, that the award of exclusive possession to the wife "until she dies or remarries" leaves unsettled the legal and equitable rights of the parties upon the wife's death or remarriage and requires further litigation to determine the method and details of distribution.

In recent years, the question of how to dispose of the marital home upon divorce has become a major issue in divorce litigation in many jurisdictions. See The Marital Home, 1 Equitable Distribution Journal 145 (1984). Most often, the issue arises where there is a dependent spouse or children, the marital home is the main or sole asset of the marriage, and the parties will be financially strained in maintaining two households. On the one hand is the need of the dependent person for shelter and the fact that securing alternative adequate housing will be financially and perhaps emotionally difficult. On the other hand is the potential inequity of depriving the other spouse of the use of his share of his asset which he may need in starting a new life. The issue is further colored by the court's desire to achieve a high degree of finality of the marital litigation. The friction from the unsuccessful marriage, coupled with the financial strains from the divorce, make continuing dealings between the parties difficult. With all this in mind, the family court is then called upon to exercise the wisdom of Solomon to divide the indivisible, equitably.

Beginning with the pronouncement in Whitfield v. Hanks, 278 S.C. 165, 293 S.E.2d 314 (1982), that family courts may grant a spouse possession of the marital home as an incident of support, our appellate courts have struggled to develop guidelines to aid the family court in determining the appropriate disposition to be made of the marital home. See, e.g., Thompson v. Brunson, 283 S.C. 221, 321 S.E.2d 622 (S.C.App.1984); Shafer v. Shafer, 283 S.C. 205, 320 S.E.2d 730 (S.C.App.1984); Tucker v. Tucker, 282 S.C. 261, 317 S.E.2d 764 (1984); Jones v. Jones, 281 S.C. 96, 314 S.E.2d 33 (S.C.App.1984); Smith v. Smith, 280 S.C. 257, 312 S.E.2d 560 (S.C.App.1984). These cases establish several basic principles.

First, the family court must begin with the premise that division...