Klein v. Klein
| Decision Date | 04 February 2008 |
| Docket Number | 2008-UP-074 |
| Parties | Mark T. Klein, Appellant, v. Sherry G. Klein, Respondent. |
| Court | South Carolina Court of Appeals |
THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.
Submitted January 2, 2008
Appeal From Pickens County Tommy B. Edwards, Family Court Judge
Robert Scott Dover, of Pickens, for Appellant.
Woodrow Grady Jordan, of Easley, for Respondent.
In this appeal arising from a Rule to Show Cause action, Mark T Klein (Husband) argues the family court erred in awarding Sherry G. Klein (Wife) affirmative relief and attorney's fees. We affirm.
Husband and Wife were married on June 16, 1972. The parties had one son, Mark T. Klein, II, born on August 8, 1975. During the marriage, Husband owned seven pieces of real estate encumbered by a single mortgage (the mortgage) with Oconee Savings and Loan Association.
The parties separated in November 1988, and shortly thereafter Husband filed for divorce. The parties subsequently reached a separation agreement resolving all issues regarding the divorce.
The separation agreement specifically addressed the disposition of three pieces of Husband's real property. Under the agreement, Husband agreed to be responsible for the mortgage covering the various properties. Husband also agreed to transfer fee simple title of the marital home (Lot 8) to Wife when the parties' son reached the age of eighteen. Wife agreed to waive any right to Husband's four-plex house (Lot 6). Lastly, Husband agreed to give Wife one-half of the net proceeds after costs of sale” when the remaining property (Lot 9) was sold.
On May 22, 1989, the parties appeared before the family court seeking the court's approval of the parties' separation agreement and requesting a ruling regarding separate maintenance and support. The family court incorporated the agreement into its order after concluding it was fair and reasonable and awarded Wife separate maintenance and support pending the final order. On January 12, 1990, the family court issued a final decree of divorce.
On January 4, 1990, Husband sold Lot 6 and Lot 9 for $198, 000. Husband's records indicate the sale price of Lot 9 was $73, 000, while the price for Lot 6 was $125, 000. Prior to this sale, Husband had sold other lots encumbered by the mortgage, and the net proceeds from these prior sales were applied to the satisfaction of the mortgage. At the time of the January sale, the remaining balance on the mortgage was $137, 702.91. Husband's records indicated net proceeds of $45, 374.55 after paying the balance on the mortgage, real estate commission, and taxes on the properties. On January 5, 1990, Husband's attorney forwarded a check in the amount of $45, 374.55 to the trust account of Acker, Acker, Floyd & Welmaker to be escrowed pending the distribution of the proceeds between Husband and Wife.
On April 7, 2004, Wife filed a Rule to Show Cause against Husband, requesting the family court find Husband in contempt. Specifically, Wife alleged Husband failed to convey fee simple title to Lot 8 in full because he conveyed a one-half interest in the property to her and a one-half interest to the parties' son. Wife also alleged Husband was in contempt because he failed to pay her one-half of the net proceeds from the sale of Lot 9. Lastly, Wife sought attorney's fees for the Rule to Show Cause action.
Following Husband's receipt of notice for the Rule to Show Cause, the parties' son executed a deed conveying his one-half interest in Lot 8 to Wife. Husband also paid Wife's attorney's fees and costs.
However, at the Rule to Show Cause hearing on April 17, 2006, Husband denied that Wife was entitled to any of the net proceeds he received from the sale of the two lots. Husband argued he applied the entirety of the sales price from the sale of Lot 9 to satisfy the mortgage, leaving no proceeds for Wife from the sale. Husband also claimed the $45, 374.55 in proceeds were entirely from the sale of Lot 6.
In its Rule to Show Cause Order, dated May 8, 2006, the family court held a finding of contempt in abeyance because (1) Wife waited a long time to bring the action and (2) the determination of the amount due under the final order was confusing, such that the parties did not have a clear method for computing the net proceeds. The court adopted Wife's rationale for distributing the $45, 374.55 based on Lot 9's ratable share of the sales price and ordered Husband to pay Wife $8, 229. Additionally, the family court ordered Husband to pay Wife's attorney's fees in the amount of $573. Husband appeals.
In appeals from the family court, this Court may find facts in accordance with its own view of the preponderance of the evidence. Nasser-Moghaddassi v. Moghaddassi, 364 S.C. 182, 189, 612 S.E.2d 707, 711 (Ct. App. 2005). However, this broad scope of review does not require this Court to disregard the family court's findings. Lacke v. Lacke, 362 S.C. 302, 307, 608 S.E.2d 147, 149-50 (Ct. App. 2005). Nor must we ignore the fact that the family court judge, who saw and heard the witnesses, was in a better position to evaluate their credibility and assign comparative weight to their testimony. Scott v. Scott, 354 S.C. 118, 124, 579 S.E.2d 620, 623 (2003). However, our broad scope of review does not relieve the appellant of the burden of convincing this Court that the family court committed error. Nasser-Moghaddassi, 364 S.C. at 190, 612 S.E.2d at 711.
Husband argues the family court erred in admitting a document illustrating Wife's calculations of the net proceeds” owed to her under the real estate sale because Wife laid no foundation for its admissibility. We disagree.
The admission or exclusion of evidence at trial is within the sound discretion of the court. Grand Strand Constr. Co., Inc. v. Graves, 269 S.C. 594, 595, 239 S.E.2d 81, 81 (1977). On appeal, the exercise of the trial court's discretion will not be disturbed unless there is a showing of (1) a clear abuse of discretion, (2) the commission of legal error in the exercise of discretion, and (3) prejudice to the rights of the appellant. Rutledge v. St. Paul Fire & Marine Ins. Co., 286 S.C. 360, 366, 334 S.E.2d 131, 135 (Ct. App. 1985).
At trial, Husband objected to the admission of Wife's document, arguing Wife was not aware of its contents. Following the objection, Wife testified the document contained her calculations of the amount owed to her based on the sales prices of the two properties. The family court overruled Husband's objection and admitted the document.
Rule 901(a) of the South Carolina Rules of Evidence states: The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” Testimony of a witness with knowledge that a matter is what it is claimed to be” is a method of authentication conforming to the requirements of Rule 901. Rule 901(b)(1), SCRE.
Wife offered the document to demonstrate her calculation of the figure she claimed she was owed from the sale of Lot 9. She expressly testified the document represented this calculation and the figure she ultimately claimed to be owed. Thus, Wife's testimony provided a proper authentication for the admission of the document into evidence.
Furthermore, the figures contained in the document had already been properly admitted into evidence. The document included the figures from the sale of Lot 9 as contained in two previous exhibits, which were already stipulated into evidence by the parties. The document also included the figure Wife testified she believed to be her share from the sale of Lot 9. In this regard, the document is demonstrative evidence offered as an aid to the fact finder. Demonstrative evidence explains or summarizes other evidence and testimony. Clark v. Cantrell, 339 S.C. 369, 383, 529 S.E.2d 528, 535 (2000). Such evidence must rely on other material testimony for relevance.” Id. Wife's document simply illustrates how, from the figures in the two prior exhibits, Wife calculated the amount she claimed to be owed. It is of no consequence that she did not testify to having first-hand knowledge of the figures contained in the two previous exhibits as they were already admitted into evidence.
Additionally, the admission of improper evidence is harmless when it is merely cumulative to other evidence. Muir v. C.R. Bard, Inc., 336 S.C. 266, 300, 519 S.E.2d 583, 600 (Ct. App. 1999). Even if we agreed with Husband's argument, we must not disturb the family court's decision to admit Wife's document because Husband has made no showing that he has suffered prejudice. As noted previously, the document contained figures from evidence which had already been properly admitted. Therefore, Husband has not suffered prejudice, and the family court's decision to admit Wife's document was not reversible error.
Husband argues the family court erred in allowing Wife to reopen her case. We disagree.
The decision to reopen the evidence is within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of that discretion. Brown v. La France Indus., a Div. of Riegel Textile Corp., 286 S.C 319, 324-25, 333 S.E.2d 348, 351 (Ct. App. 1985). In South Carolina, it is well established that the decision of the trial court to allow a party to reopen his case will not be reversed unless it results in prejudice to the opposing party. Id. The wide latitude afforded to the trial court permits the court to reopen the case and allow the...
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