Kirsch v. Kirsch

• Decision Date: 12 June 1989
• Docket Number: No. 1378,1378
• Citation: 383 S.E.2d 254,299 S.C. 201
• Parties: Mildred J. KIRSCH, Respondent, v. Norman KIRSCH, Appellant. (Two Cases) . Heard
• Court: South Carolina Court of Appeals

Page 254

383 S.E.2d 254

299 S.C. 201

Mildred J. KIRSCH, Respondent, v. Norman KIRSCH, Appellant. (Two Cases)

No. 1378.

Court of Appeals of South Carolina.

Heard June 12, 1989.

Decided July 31, 1989.

William H. Ehlies, Greenville, for appellant.

O.W. Bannister, Jr., Greenville, for respondent.

CURETON, Judge:

This is a divorce case. The issues on appeal are (1) apportionment of the marital estate, (2) valuation of a business, (3) distribution of personal property, (4) payment of college expenses, and (5) application of Supreme Court Rule 41 to the payment of college expenses. We affirm in part, reverse in part, and remand.

Mildred and Norman Kirsch were married for approximately thirty years. They have three children. The youngest son is attending college. Mr. Kirsch is a pharmacist. In 1980, he opened a pharmacy in Honea Path. He owns fifty-one percent of the stock and Mrs. Kirsch owns forty-nine percent. Mrs. Kirsch is a school teacher. She taught while her husband went to pharmacy school. Sometime after the children were born she returned to teaching. Both parties agreed Norman Kirsch provided the majority of the income for the family. Mrs. Kirsch used her income to purchase clothes and "frivolous things" for the family. Over the years they were able to acquire substantial assets valued at over $500,000. Among these assets were the pharmacy, the marital residence, lake house, savings accounts, and stocks.

The family court valued the stock of the pharmacy at $101,000. The pharmacy was awarded to Mr. Kirsch along with the lake house and other marital property valued at a total of $259,811. Mrs. Kirsch was awarded the marital residence and other marital property valued at $253,945. Mr. Kirsch was ordered to pay tuition, room, board, books, and fifty dollars per month for incidental costs and fees for the son's college education. Mrs. Kirsch was awarded six hundred dollars per month alimony which is not in issue.

I.

Mr. Kirsch argues the family court erred in making a fifty-fifty apportionment of the marital property. He asserts a sixty-forty apportionment is more appropriate. We note there was a computation error in the family court order. The marital property awarded to Mr. Kirsch actually totals $276,811. With this correction, the division of the marital property is approximately fifty-two percent to Mr. Kirsch and forty-eight percent to Mrs. Kirsch.

We have reviewed the record and agree with the family court's apportionment of the marital property. This was a marriage of thirty years. While Mr. Kirsch provided the bulk of the income Mrs. Kirsch was a homemaker and she also worked for approximately twelve years outside the home. Her income assisted in meeting the family's needs. The family court considered the relevant statutory factors in its determination. On review of an equitable apportionment award this Court looks to the fairness of the overall apportionment. Johnson v. Johnson, 296 S.C. 289, 372 S.E.2d 107 (Ct.App.1988). We find the apportionment to be fair and affirm it.

Mr. Kirsch challenges the court's valuation of the pharmacy. The pharmacy was opened in 1980. It is incorporated. Testimony and records indicate Mr. Kirsch owns fifty-one percent of the stock and Mrs. Kirsch owns forty-nine percent. Mrs. Kirsch testified her opinion of the value of the stock was $300,000. The tax returns for the company were introduced into evidence. Mrs. Kirsch introduced evidence of a second set of books of the pharmacy to challenge the evidence of the value of the inventory and the salary of Mr. Kirsch as reflected on the returns. Mr. Kirsch testified he valued the pharmacy at $100,000 of which thirty-five percent was goodwill. The building cost $15,000 with a mortgage of approximately $11,000. He testified there was approximately $52,000 of inventory, accounts receivable of $2,000, and accounts payable of $15,000. The pharmacy employs three clerks and another pharmacist. Mr. Kirsch testified his salary was approximately $20,000 per year although his son testified his father told him he made between $60,000 and $80,000 per year. The family court valued the "stock in Norman's Pharmacy" at $101,000 indicating the value was arrived at considering "the building has a debt of $11,324 and the business has accounts receivable in the amount of $15,000. The asset is valued without any goodwill."

We fail to find evidence in the record to support the valuation of the business by the court. In valuing a business interest for equitable distribution the court should determine the fair market value of the corporate property as an established and going business. Reid v. Reid, 280 S.C. 367, 312 S.E.2d 724 (Ct.App.1984). This is to be accomplished by "considering the business' net asset value, the fair market value for its stock, and earnings or investment value. (citations omitted)" Id. at 373, 312 S.E.2d at 727; Tucker v. Tucker, 282 S.C. 261, 317 S.E.2d 764 (Ct.App.1984). We reverse and remand the issue of the valuation of the pharmacy to the family court for reconsideration. The parties are to provide sufficient evidence to the family court to allow it to properly consider the relevant factors.

Mr. Kirsch also argues the family court failed to specifically distribute certain items of personal property. The family court awarded all furniture located in the lake house to Mr. Kirsch and all furniture in the marital residence to Mrs. Kirsch. The order does not dispose of specific items enumerated on a three page list contained in the record. The testimony indicates the parties did not completely agree to the division of the items although there was apparent agreement that any inherited property should be returned to Mr. Kirsch, except a ring which Mrs. Kirsch claims was promised to their son.

Mr. Kirsch failed to file a motion under S.C.R.Civ.P. 59(e) in the family court to draw the court's attention to its failure to rule upon this issue. Had he done so the family court would have had an opportunity to correct this omission. We would ordinarily hold the issue is not properly preserved because of the failure to file the motion to obtain the court's ruling. Talley v. South Carolina Higher Education Tuition Grants Committee, 289 S.C. 483, 347 S.E.2d 99 (1986); Palm v. General Painting Co., Inc., 296 S.C. 41, 370 S.E.2d 463 (Ct.App.1988); see Hudson v. Hudson, 290 S.C. 215, 349 S.E.2d 341 (1986). However, because we are remanding the issue of the valuation of the pharmacy we are also remanding this issue for disposition in the interest of concluding this matter.

II.

A second major issue in this appeal is the payment of college expenses. At the time of the hearing the parties' third child was attending college. The family court ordered Mr. Kirsch to pay tuition, room, board, books, and fifty dollars per month to cover incidental costs and fees. The court found the son had demonstrated ample aptitude as reflected in his grades. The court also found Mr. Kirsch had the financial ability to pay for college and the son could not continue his education without his father's help. Mr. Kirsch argues the court erred because the record does not disclose the son made any effort to secure alternate financing. He also argues the court's order leaves him without sufficient funds to meet his own expenses and the court did not require Mrs. Kirsch to contribute to the college expenses.

Mr. Kirsch provided a college education for the two older children. He also provided a college education...