Lafrance v. Lafrance

• Decision Date: 02 October 2006
• Docket Number: No. 4158.,4158.
• Citation: 636 S.E.2d 3
• Court: South Carolina Court of Appeals
• Parties: Claire Elizabeth Mouton LaFRANCE, Respondent/Appellant, v. Michael Leo LaFRANCE, Appellant/Respondent.

636 S.E.2d 3

Claire Elizabeth Mouton LaFRANCE, Respondent/Appellant, v. Michael Leo LaFRANCE, Appellant/Respondent.

No. 4158.

Court of Appeals of South Carolina.

Heard September 12, 2006.

Decided October 2, 2006.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

J. Falkner Wilkes, of Greenville, for Appellant/Respondent.

Timothy E. Madden, of Greenville, for Respondent/Appellant.

ANDERSON, J.

In this domestic action, Michael Leo LaFrance ("Husband") appeals the family court's imputation of income, division of marital assets, calculation of child support, and award of attorney's fees. Claire Elizabeth Mouton LaFrance ("Wife") cross appeals the family court's awarding Husband a share in the future profits from the sale of the marital home, classifying Wife's jewelry as marital property, and issuing the Supplemental Order dated September 29, 2004 that required each party to share guardian ad litem fees. We affirm in part, reverse in part, and remand.

FACTUAL/PROCEDURAL BACKGROUND

Husband and Wife married in 1989 and had three children, who at the time of the final hearing were eight, five and four years old. During their fourteen-year marriage the parties relocated a number of times to pursue Husband's professional opportunities and to improve the parties' financial position.

In Lafayette, Louisiana, where the parties married, both worked for Comtel, a telecommunications company. Wife was employed as a sales representative and Husband was a senior executive. Her salary at the time was approximately $45,000.00 and Husband's was approximately $75,000.00.

Comtel merged in 1990 with a long distance telecommunications company, and the couple relocated to Jackson, Mississippi. Husband's salary at that time was approximately $80,000.00, plus stock options. Wife completed her college education during that time and, in addition, worked in a local boutique.

Early in the 1990s Husband started a wireless paging company in Covington, Louisiana. He earned approximately $40,000 per year in this two-year venture. Wife started a bridal registry business, which, though allegedly successful, did not result in any personal income because she put all profits back into the business.

In 1993 or 1994, the couple relocated to Rochester, New York, where Husband accepted an executive level management position with ACC Communications at an initial salary of approximately $150,000.00, plus stock options. Wife returned to work for a short time until the parties decided to buy a home and start a family. Both agreed Wife would not work outside the home.

In 1997 Husband left ACC, having acquired approximately four million dollars in assets generated by his stocks and options. The family moved to Greenville, South Carolina, where Husband entered a start-up telecommunications venture, "New South," and assumed the position of Chief Executive Officer (CEO). His initial annual salary was $70,000.00, plus stock options. When Husband was terminated from New South in 2001, his annual salary was $150,000.00, plus bonuses and stock options.

At the time of the final hearing in March of 2004, both parties resided in Greenville, South Carolina. Wife was thirty-eight years old and Husband was forty-three. Both graduated from college. Wife takes prescription medication for anxiety but claimed to be in good health otherwise. Husband has severe back problems, has had surgery, and continues to suffer chronic pain. Associated with Husband's back injury is a history of addiction to pain medication, for which he has received some rehabilitative treatment. Husband has not been employed since his termination from New South. Wife began working in the spring of 2003 as a Physician's Liaison with the Greenville Hospital System, earning approximately $75,000.00 annually.

On February 25, 2002, Wife petitioned for divorce on the ground of continuously living separate and apart for one year without intervening cohabitation. Subsequently, Husband and Wife agreed upon custody, visitation, family support, and division of certain marital assets.¹

The parties had significant marital property, which, in addition to the marital home, included cash, checking accounts, retirement assets, investment accounts and securities, insurance policies and proceeds, potential income tax refunds and substantial personal property in the form of antiques, home furnishings, vehicles, firearms, coin collections, children's portraits, jewelry, and gold coins.

At the commencement of trial Wife withdrew her requests 1) for permanent alimony; and 2) that Husband maintain a life insurance policy as an incident of support. Instead, Wife sought equitable apportionment of the policy as one of the marital assets. The issues before the court for disposition on final hearing included: divorce; identification, valuation and apportionment of marital assets and marital debts; child support; modification of prior support orders; and attorney's fees.

The family court awarded Wife a divorce on the ground of one year's continuous separation without intervening cohabitation. The parties stipulated that Wife maintain custody of the three minor children, allowing Husband reasonable visitation. The litigants agreed to the permanent apportionment of New South interests in percentages consistent with the apportionment of the general marital estate. Stipulations of the parties were adopted, incorporated into and merged with the final decree and order. The family court identified, valued and equitably apportioned the parties' marital property and debts. The final order provided:

· Among the marital assets is the marital home.... [T]he greater and more credible evidence supports a fair market valuation of $700,000.00.... The marital home is subject to mortgage indebtedness which has a date of filing balance due of $404,000.00.... [A]fter considering this indebtedness, the net fair market value of the equity in this home is $296,000.00.

· [I]n the event the marital home is sold within six years of this Order, and the sales price exceeds $700,000.00, any excess net proceeds (resulting from a sales price over $700,000.00) shall be distributed equally to the parties, provided, that any increase in the value of the house that is the direct result of Wife's direct contribution or improvement to the house subsequent to this Order shall not be subject to distribution. This Court reserves jurisdiction to determine the extent of direct contributions in the event that the marital home sells within the six-year period.

· Without question or contest, Husband made the vast majority of the direct contributions to the marriage.... Wife clearly made the vast majority of the indirect contributions to the marriage.... When considered in their entirety, the contributions of each party to the marriage, both direct and indirect combined, are equal in value.

· Husband is either not employed or significantly underemployed.

· Based on all the credible evidence, Husband has the ability to earn in the lower range of the senior level salaries, or about $100,000.00 per year. Husband is therefore imputed with this level of gross income for purposes of this Order.

· Based on the findings of this Order, and all the credible evidence presented, Husband's gross monthly income for purposes of calculating child support is $8330.00. Wife's gross monthly income for child support purposes is $6250.00. Beginning with the first day of the first month following the filing of this Order, Husband shall pay child support directly to Wife in the amount of One Thousand Nine Hundred Thirty and 00/100 Dollars ($1930.00) per month.

· As an incident of child support, for so long as the children are enrolled in private school, Husband shall pay to Wife, on a monthly basis, 57% of the children's private school tuition.

· Husband shall contribute the sum of Fifty Thousand and 00/100 Dollars ($50,000.00) to Wife's attorney's fees and suit costs.

· Based on careful review of all the evidence, and consideration of all appropriate factors, the marital estate should generally be equally divided between the parties.... To effectuate an equal division of the marital estate, Wife shall pay Husband $48,925.00 ... offset by the $50,000.00 contribution required by Husband to pay Wife's attorney's fees ... with this offset Wife's obligation to pay Husband is satisfied and Husband owes Wife $1075.00....

· It does not appear that any of the nine listed pieces of jewelry was identified as being non-marital.... Based on the evidence presented, the marital jewelry has a fair market value of $46,400.00.

Both parties filed motions to alter or amend the family court's judgment, pursuant to Rule 59(e), SCRCP. Husband filed a motion to dismiss Wife's motion as not timely filed. The family court found Wife's motion was timely filed. Wife objected to Husband's motion to alter or amend on ground that Husband failed to properly serve the motion. The court ruled on both parties' motions and held:

· [T]he jewelry, as declared in the Final Order and Divorce Decree was appropriately declared marital property.

· The findings and conclusions regarding the marital home should not be altered or amended.

· In addition to the obligation to contribute to Plaintiff's attorney's fees and general litigation costs, Defendant shall contribute the sum Five Thousand Five Hundred Thirty-Two and 50/100 Dollars ($5532.50) to the expert fees incurred by Plaintiff. Therefore, Defendant's total contribution to Plaintiff's attorney's fees and costs is and shall be the sum of Fifty-Five Thousand Five Hundred Thirty-two and 50/100 ($55,532.50).... This obligation shall be satisfied by Wife offsetting this contribution for the balance due to Husband for the equitable apportionment of marital property.

· With the evidence before me ... there is no need to alter or amend the findings regarding Defendant's earning capacity as determined in the Final Order and...