Johnson v. Johnson, 1212

Citation296 S.C. 289,372 S.E.2d 107
Decision Date14 March 1988
Docket NumberNo. 1212,1212
CourtCourt of Appeals of South Carolina
PartiesC. Carl JOHNSON, Appellant-Respondent, v. Terry Cobb JOHNSON, Respondent-Appellant. . Heard

C. Rauch Wise, of Wise & Tunstal, and Joseph M. Pracht, of Pracht & Wyndham, Greenwood, for appellant-respondent.

Robert J. Thomas, Columbia, for respondent-appellant.

BELL, Judge:

This is a divorce action. Both parties appeal from the final decree of divorce. The issues on appeal concern (1) the equitable distribution of the marital estate; (2) the award of rehabilitative alimony to the wife; and (3) the award of attorney's fees to the wife. We affirm in part and reverse in part and remand.

C. Carl Johnson, a dentist practicing in Greenwood, South Carolina, proposed marriage to Terry Cobb, a dental hygienist working in Columbia, in April, 1985. Dr. Johnson made the proposal by telephone, asking Terry to quit her job and marry him. Terry immediately accepted the proposal. It was her first marriage, his second.

During the five week engagement, Dr. Johnson told Terry he wanted her to be his wife, homemaker, and companion. He promised she would never have to work again outside the home. He suggested she dispose of much of her furniture, because together they had more than they needed for the marital home. Five days before the wedding, and after Terry quit her job, gave up her apartment in Columbia, and disposed of many of her belongings, Dr. Johnson presented her with an antenuptial agreement drafted by his lawyer. The family court found that he presented it in a way that left Terry with the belief there would be no wedding unless she signed it. She signed in the kitchen of Dr. Johnson's home without consulting an attorney. The family court ruled that the agreement was procedurally and substantively unfair and, therefore, void. Dr. Johnson does not contest that ruling.

The parties were wed on May 11, 1985. After the wedding, the marriage began to deteriorate rapidly due to Dr. Johnson's conduct. We need not detail his behavior. Suffice it to say, he severely mistreated Mrs. Johnson, mentally and physically abusing her in many ways. Among other things, he battered her on at least three occasions, the last consisting of seven or eight blows to her face. After submitting to fourteen months of continuous abuse, and fearing for her physical safety, Mrs. Johnson left the marital home on July 14, 1986. She went to live with her mother. Thenceforward, the parties lived separately.

On August 21, 1986, Dr. Johnson commenced this action seeking to enforce the antenuptial agreement. Mrs. Johnson answered, denying the validity of the agreement, and counterclaimed, seeking a divorce on the ground of physical cruelty. She also petitioned for an equitable division of marital property, an award of alimony, and attorney's fees.

In an unusually detailed order, the family court declared the antenuptial agreement void; granted a divorce on the ground of physical cruelty; identified, valued, and distributed the marital estate; awarded Mrs. Johnson rehabilitative alimony for a period of twelve months; and granted her partial attorney's fees. Dr. Johnson does not contest the judgment of divorce. He does challenge the equitable distribution and the attorney's fees. Mrs. Johnson appeals from the award of alimony and the attorney's fees.


Each party brought previously acquired property into the marriage. Among other things, Dr. Johnson owned a house at Wellington Green, which the parties used as the marital residence; a 1976 Mercedes automobile, which he let Mrs. Johnson use as her own during the marriage; over $33,000 of household contents; a Keogh account valued at the time of divorce at $189,428; Individual Retirement Accounts (IRA's) valued at the time of divorce at $9574; a Kiawah Island property; a Belle Meade property; and a MayApple property. For convenience, we shall refer to these items as the "disputed property."

In the family court, Mrs. Johnson argued the "disputed property" was transmuted into marital property and became subject to equitable distribution. Dr. Johnson maintained that all property acquired before the marriage remained separate property during the marriage and was not subject to equitable distribution.

The family court judge, while expressing the opinion that the "disputed property" was "probably" transmuted into marital property, in effect treated it as Dr. Johnson's separate property in the actual equitable distribution. The judge held, however, that the increase in value of these properties during the marriage was marital property subject to equitable distribution. Dr. Johnson asserts this was error.


The doctrine of equitable distribution is based on a recognition that marriage is, among other things, an economic partnership. Upon dissolution of the marriage, property acquired during the marriage should be divided and distributed in a manner which fairly reflects each spouse's contribution to its acquisition, regardless of which spouse holds legal title. Walker v Walker, 295 S.C. 286, 368 S.E.2d 89 (Ct.App.1988).

In making an equitable distribution of marital property, the court must (1) identify the marital property, both real and personal, to be divided between the parties; (2) determine the fair market value of the property so identified; (3) apportion the marital estate according to the contributions, both direct and indirect, of each party to the acquisition of the property during the marriage, their respective assets and incomes, and any special equities they may have in marital assets; and (4) provide for an equitable division of the marital estate, including the manner in which distribution is to take place. Toler v. Toler, 292 S.C. 374, 356 S.E.2d 429 (Ct.App.1987); Gibson v. Gibson, 283 S.C. 318, 322 S.E.2d 680 (Ct.App.1984).


Identification of marital property is controlled by the provisions of the Equitable Apportionment of Marital Property Act. 1 The Act defines marital property as all real and personal property acquired by the parties during the marriage which is owned as of the date of filing or commencement of marital litigation, regardless of how legal title is held. Section 20-7-473; see also, Berry v. Berry, 290 S.C. 351, 350 S.E.2d 398 (Ct.App.1986), affirmed, 294 S.C. 334, 364 S.E.2d 463 (1988) (marital property is all property acquired during the marriage which does not fall within some established exception).

The spouse claiming an equitable interest in property upon dissolution of the marriage has the burden of proving the property is part of the marital esate. Cf., Roberts v. Roberts, 296 S.C. 93, 370 S.E.2d 881 (Ct.App.1988). If she carries this burden, she establishes a prima facie case that the property is marital property.

If the opposing spouse then wishes to claim that the property so identified is not part of the marital estate, he has the burden of presenting evidence to establish its nonmarital character. Miller v. Miller, 293 S.C. 69, 358 S.E.2d 710 (1987).

Under the Act, property acquired by either party before the marriage is nonmarital property. Section 20-7-473(2); see also, Sauls v. Sauls, 287 S.C. 297, 337 S.E.2d 893 (Ct.App.1985). Property acquired during the marriage in exchange for property acquired before the marriage is also nonmarital property. Section 20-7-473(3). Likewise, any increase in the value of nonmarital property during the marriage is nonmarital property, except to the extent the increase resulted directly or indirectly from the efforts of the other spouse during the marriage. Section 20-7-473(5); see also, Miller v. Miller, supra.

If the opposing party shows that an item of property was either acquired before the marriage or falls within a statutory exception, this rebuts the prima facie case for its inclusion in the marital estate. However, it does not necessarily end the matter.

In certain circumstances, nonmarital property, as defined by the Act, may be transmuted into marital property during the marriage. Property, nonmarital at the time of its acquisition, may be transmuted (1) if it becomes so commingled with marital property as to be untraceable; (2) if it is titled jointly; or (3) if it is utilized by the parties in support of the marriage or in some other manner so as to evidence an intent by the parties to make it marital property. Trimnal v. Trimnal, 287 S.C. 495, 339 S.E.2d 869 (1986); Wyatt v. Wyatt, 293 S.C. 495, 361 S.E.2d 777 (Ct.App.1987).

As a general rule, transmutation is a matter of intent to be gleaned from the facts of each case. 2 The spouse claiming transmutation must produce objective evidence showing that, during the marriage, the parties themselves regarded the property as the common property of the marriage. Such evidence may include placing the property in joint names, transferring the property to the other spouse as a gift, using the property exclusively for marital purposes, commingling the property with marital property, using marital funds to build equity in the property, or exchanging the property for marital property. 3 The mere use of separate property to support the marriage, without some additional evidence of intent to treat it as property of the marriage, is not sufficient to establish transmutation. 4 The primacy of the parties' intent in determining if property is marital or nonmarital is underscored by the Act itself, which permits the parties to exclude property from the marital estate by written agreement. See Section 20-7-473(4).


Turning to the facts of this case, we hold the family court erred in concluding the "disputed property" was transmuted. The record discloses a clear, consistent intent of Dr. Johnson to maintain the nonmarital character of all property he acquired before the marriage. In particular, the antenuptial agreement stated plainly that neither party would acquire any interest in the separately titled property of the other by...

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