Josey v. Josey, 0847

• Decision Date: 15 October 1986
• Docket Number: No. 0847,0847
• Citation: 351 S.E.2d 891,291 S.C. 26
• Court: South Carolina Court of Appeals
• Parties: Dr. Julian Cleon JOSEY, Appellant-Respondent, v. Jean Yarborough JOSEY, Respondent-Appellant. . Heard

Page 891

351 S.E.2d 891

291 S.C. 26

Dr. Julian Cleon JOSEY, Appellant-Respondent, v. Jean Yarborough JOSEY, Respondent-Appellant.

No. 0847.

Court of Appeals of South Carolina.

Heard Oct. 15, 1986.

Decided Dec. 29, 1986.

[291 S.C. 28] G. Ray Harris, Spartanburg, for appellant-respondent.

John A. Hagins, Jr., Greenville, and Bruce Foster, Spartanburg, for respondent-appellant.

CURETON, Judge:

In this divorce action the trial judge granted the wife a divorce from the husband on the ground of adultery, divided the parties' marital property and awarded the wife alimony and child support. Both parties appeal. We affirm in part, reverse in part and remand.

Appellant husband is a successful physician in Spartanburg, South Carolina. Respondent wife, although a college graduate, has not worked outside the home since shortly after the birth of their oldest child. The parties have three children who were ages 20, 18 and 13 at the time of the divorce hearing. The two oldest children are in college at Washington and Lee University and the youngest child is still in the home in the custody of the wife. Over a period of several years, the relationship of the parties deteriorated with the husband becoming interested in another woman. Finally, in November 1983, the husband left the marital home.

The present action was filed by the wife alleging that the husband had physically abused her and had committed acts of adultery. She prayed for alimony, child support, custody of the children, equitable distribution of marital property, attorney fees, court costs and use of the marital home. The husband denied that he had been physically abusive to the wife or that he had committed acts of adultery.

The trial judge found that, although over a period of several years prior to the separation of the parties the husband had physically abused the wife, the abuse did not result in the breakup of the marriage but did contribute to its destruction. He also found that the husband had committed adultery and that his adulterous conduct caused the breakup of the marriage.

The husband was found to have earned an income of $163,818.50 in 1983 and $141,237.74 plus fringe benefits of $23,000.00 in 1984. The court found that the net value of the marital estate was $833,981.00, less the value of the land on which the marital residence sits. The land was found to be nonmarital property. The court included in the marital estate the husband's profit sharing plan worth $49,695.00 and his pension plan worth $159,989.91. The wife was awarded a forty percent interest in the marital estate. The divorce decree provided that after crediting the husband with the value of the furniture and the cash value of an insurance policy which were awarded to the wife, the husband would pay the wife the remainder of $200,000.00 of her equity within 30 days. The balance of the award was required to be paid to the wife in two annual installments.

The husband does not challenge the proportional distribution of the marital estate, but argues that it was error to classify his pension and profit sharing plans as marital property and that the trial judge erroneously placed a value of $833,981.00 on the marital estate. He also argues that the trial judge committed reversible error: (1) by advising the attorneys that he had decided the issues of the case in one manner, yet issuing an order deciding the issues differently: (2) in awarding alimony and child support of $60,000.00 per year; and (3) in awarding attorney fees of $15,500.00 and suit expenses of $9,500.00.

The wife's principal argument pertaining to the apportionment of the marital property concerns the failure of the trial judge to find that the land on which the marital home sits is marital property, and in failing to award her title to the home. The home sits on an 8.7 acre tract of land. Both parties valued the home site at $288,000.00. The house is encumbered with mortgages totaling approximately $145,000.00. The wife also claims that the trial judge should have awarded her one-half of the marital

                estate.   Finally, she argues the award of attorney fees was inadequate
                

IDENTIFICATION AND VALUATION OF MARITAL PROPERTY

Dr. Josey first argues that the trial judge should not have included his pension and profit sharing plans in the marital estate because both plans are employer financed and not subject to division under Smith v. Smith, 280 S.C. 257, 312 S.E.2d 560 (Ct.App.1984). Smith, of course, did not address the division of a voluntary contributory pension. In the recent case of Watson v. Watson, --- S.C. ---, 351 S.E.2d 883 (S.C.Ct.App. 1986) this Court dealt with a profit sharing plan similar to the plan involved in this case. After deciding that the plan was both contributory and voluntary, this Court then held that the contributory nature of a plan is not dispositive of whether it should be classified as marital property. We listed nine factors in Watson that a trial judge should consider in determining whether a specific pension or profit sharing plan should be classified as marital property. Here, the record does not permit us to properly apply the factors enumerated in Watson, especially as to the pension plan. We therefore remand the question of whether these plans are marital property to the trial court to take additional testimony, if necessary, and make specific findings of fact based upon the Watson factors.

The husband next claims error in the trial court's valuation of the marital estate. To arrive at the value of the marital estate, and because all of the marital property was listed on the husband's financial statement attached to his financial declaration, the trial court ascertained the husband's net worth, then subtracted from his net worth the value of his separate property. In so doing, the trial court found the husband's net worth to be the $847,981.00 represented by his financial declaration, plus an adjustment of $66,000.00 to account for an increase in value of some condominium units as testified to by the wife's real estate expert, less a reduction of $80,000.00 for inherited property which was included on the financial statement.

The husband claims the trial judge should not have used the net worth figure of $847,981.00 from his financial statement as a starting point because, according to his tax expert, accrued capital gains taxes of $171,000.00 should have been deducted from that figure, reducing his effective net worth to $676,981.00. The trial court found that this was an inappropriate adjustment. We agree. On cross examination the tax expert admitted that the $171,000.00 figure was an estimate of the taxes that would be due if the husband were to sell all his assets, then pay the wife her proportionate share from the sale proceeds. While the decree requires a sale of some assets, we would be required to speculate as to what, if any, taxes would have to be paid by the husband. Moreover, any assets transferred to the wife as part of the division would not result in a transfer taxable to the husband. I.R.C. Section 1041 (Law.Co.-op.1985). This contention is without merit.

We agree with the husband that the $66,000.00 adjustment the trial court made in the value of the condominium units is not sustained by the record. The husband's financial statement reflects his one-third interest in the condominiums based upon a gross appraisal of $520,000.00. The court relied upon the wife's appraiser who appraised the condominiums at $572,000.00. The difference between these appraisals is only $52,000.00, not $66,000.00. Moreover, the appraiser testified that the seller could expect to pay a six percent commission on the sale or $34,000.00. If the $52,000.00 is reduced by the amount of the commission, the increase in value to be added to the net worth figure is approximately $18,000.00.

The husband also argues other errors in the valuation of the marital estate, but we find them to have no merit and dispose of them under provisions of Section 14-8-250, Code of Laws of South Carolina, 1976.

Regarding the equitable division, the wife's first argument is that the 8.78 The wife next argues that she should have been awarded title to the marital home. A family court has wide discretion in effecting a division of marital property and may employ any reasonable means at its disposal to do so. Taylor v. Taylor, 267 S.C. 530, 229 S.E.2d 852 (1976); LaFitte v. LaFitte, 280 S.C. 473, 313 S.E.2d 41 (Ct.App...