Martin v. Martin, No. 1240

CourtCourt of Appeals of South Carolina
Writing for the CourtCURETON; SANDERS, C.J., and GARDNER
Citation296 S.C. 436,373 S.E.2d 706
PartiesGary D. MARTIN, Appellant, v. Margaret Ann MARTIN, Respondent. . Heard
Docket NumberNo. 1240
Decision Date15 September 1988

Page 706

373 S.E.2d 706
296 S.C. 436
Gary D. MARTIN, Appellant,
v.
Margaret Ann MARTIN, Respondent.
No. 1240.
Court of Appeals of South Carolina.
Heard Sept. 15, 1988.
Decided Oct. 31, 1988.

Page 707

[296 S.C. 437] Michael W. Self, Sumter, for appellant.

Joseph T. McElveen, Jr., and Terrell T. Horne, Sumter, for respondent.

CURETON, Judge.

This domestic case primarily involves the issue of equitable apportionment of marital property. One of the items in dispute is a military retirement pension. We affirm the family court.

[296 S.C. 438] Gary Martin (husband) joined the Air Force in 1956. He married Margaret Martin (wife) in 1971. The husband retired from the Air Force in 1976 after 20 years of service, and began receiving military retirement benefits. The Martins separated in 1985 and the husband commenced divorce proceedings a year later. The Martins acquired various assets during their marriage including a home and several savings accounts. They also purchased a business in Sumter which the wife operated at the time of the divorce. The husband worked part-time as a mail carrier.

The court granted the wife a divorce based upon a one year separation. The husband claimed he was entitled to a divorce because of wife's admitted adultery after the separation. No alimony was awarded. The court found husband's continued association with another woman was a major cause of the separation.

The court held the husband's military retirement pension was marital property. It valued the pension and determined the marital component. The pension was apportioned between the Martins and the wife's share was offset by an award to her of other marital assets.

In addition to the military retirement, the husband challenges other aspects of the equitable distribution award and the award of attorney fees.

Military Retirement Benefits As Marital Property

Prior to the adoption of the Equitable Apportionment of Marital Property Act, this state held military retirement benefits

Page 708

were not subject to equitable distribution. Bugg v. Bugg, 277 S.C. 270, 286 S.E.2d 135 (1982); Carter v. Carter, 277 S.C. 277, 286 S.E.2d 139 (1982) (dicta); Brown v. Brown, 279 S.C. 116, 302 S.E.2d 860 (1983); Haynes v. Haynes, 279 S.C. 162, 303 S.E.2d 429 (1983); Eichor v. Eichor, 290 S.C. 484, 351 S.E.2d 353 (Ct.App.1986). The Legislature has now defined "marital property" to include all real and personal property acquired by the parties during the marriage and owned by them as of the date of filing or commencement of marital litigation, regardless of how legal title is held. Section 20-7-473, Code of Laws of South Carolina, 1976, as amended. The section contains [296 S.C. 439] certain exceptions which constitute nonmarital property. Vested military retirement benefits fit none of the enumerated exceptions. See Orszula v. Orszula, 292 S.C. 264, 356 S.E.2d 114 (1987) (personal injury and workers' compensation awards are marital property under the statute as they fit none of the enumerated exceptions). This court recently held a vested federal civil service retirement fund was marital property under the Equitable Apportionment Act. Kneece v. Kneece, 296 S.C. 28, 370 S.E.2d 288 (Ct.App.1988). Given the legislative definition, vested military retirement benefits do constitute marital property under the statute because they are not excluded. 1

Valuation And Distribution Of Military Pension

The husband began receiving pension benefits in 1976. At the time of the divorce hearing, his gross benefit was $739 per month with a net benefit of $624. The wife presented expert testimony concerning the value of the military retirement. The expert computed a present value of $205,950 based upon assumptions of (1) a twenty-seven year life expectancy for the husband under the mortality tables, (2) a constant real income stream of $735 per month, and (3) a discount rate of 1.1% based upon the average real rate of return on long-term government bonds. The husband's expert witness had no opinion on the value of the retirement account because he considered it too speculative to value.

The trial court concluded the pension's value was $205,950. The husband served fifteen years in the Air Force before his marriage. The court held only one-fourth of the benefit was marital property. This component was valued at $51,500. Of this amount, the court apportioned $10,300 to the wife which [296 S.C. 440] equates to 20%. The court specifically found the wife contributed to the acquisition of the pension during the marriage by maintaining the home and preparing the husband's uniforms.

The court utilized an offset approach in the final distribution of all of the marital property. The court valued the marital property, excluding the pension, at $69,951. Of this amount, the court awarded specific assets worth $20,258 to the husband and $49,693 to the wife. However, the court concluded the wife should receive 55% of the non-pension marital assets and its distribution to her resulted in an overage of $11,220 with a corresponding shortfall to the husband in the same amount. Thus, the court awarded the full military retirement to the husband reasoning this corresponded to the wife giving to him her share totalling $10,300. The wife was ordered to pay the husband $920 to effect the property division.

The property division basically resulted in the husband receiving his military pension, a used mobile home, vehicle, and approximately $10,000 in savings. The wife received the marital home, the business, a car, and approximately $11,000 in savings. We note the wife derived her income from operating the business, while the husband

Page 709

relied primarily on the retirement and his part-time job.

The husband makes several arguments about the military pension. We have disposed of his first argument by concluding vested military retirement benefits do constitute marital property. He also argues the court erred in its valuation and distribution of the pension.

The husband's primary argument is the court erred in awarding the wife a present lump sum distribution of the pension. He argues the award, if any, should...

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19 practice notes
  • Gamble v. Gamble, No. 1726-90-2
    • United States
    • Virginia Court of Appeals of Virginia
    • 2 Junio 1992
    ...be considered by the parties and the trial judge. See In re Marriage of Gallo, 752 P.2d 47, 54-55 (Colo.1988) (en banc); Martin v. Martin, 296 S.C. 436, 373 S.E.2d 706 (Ct.App.1988); L. Golden, supra at § Subsection G, as now written, does not prohibit a trial judge from including the marit......
  • Emery v. Smith, No. 3870.
    • United States
    • Court of Appeals of South Carolina
    • 27 Septiembre 2004
    ...of the Military Retirement Benefits Military retirement benefits accrued during marriage constitute marital property. Martin v. Martin, 296 S.C. 436, 361 S.C. 215 373 S.E.2d 706 (Ct.App.1988); Curry v. Curry, 309 S.C. 539, 424 S.E.2d 552 (Ct.App.1992). Consequently, 25% of all of the milita......
  • Prevatte v. Prevatte, No. 1277
    • United States
    • Court of Appeals of South Carolina
    • 7 Diciembre 1988
    ...of marital property and its judgment will not be disturbed on appeal absent a showing of abuse of discretion." Martin v. Martin, 296 S.C. 436, 373 S.E.2d 706, 709 (Ct.App.1988). We find no abuse of Mr. Prevatte argues the trial judge erred in "affirming its award to [Mrs. Prevatte] of attor......
  • Fortenberry v. Fortenberry, 2013-UP-364
    • United States
    • Court of Appeals of South Carolina
    • 2 Octubre 2013
    ...2011), (1) we find the adultery occurred post-separation and thus did not cause the breakdown of the marriage, [1] see Martin v. Martin, 296 S.C. 436, 442, 373 S.E.2d 706, 710 (Ct. App. 1998) (finding it appropriate not to consider fault when wife's post-separation adultery did not affect t......
  • Request a trial to view additional results
19 cases
  • Gamble v. Gamble, No. 1726-90-2
    • United States
    • Virginia Court of Appeals of Virginia
    • 2 Junio 1992
    ...be considered by the parties and the trial judge. See In re Marriage of Gallo, 752 P.2d 47, 54-55 (Colo.1988) (en banc); Martin v. Martin, 296 S.C. 436, 373 S.E.2d 706 (Ct.App.1988); L. Golden, supra at § Subsection G, as now written, does not prohibit a trial judge from including the marit......
  • Emery v. Smith, No. 3870.
    • United States
    • Court of Appeals of South Carolina
    • 27 Septiembre 2004
    ...of the Military Retirement Benefits Military retirement benefits accrued during marriage constitute marital property. Martin v. Martin, 296 S.C. 436, 361 S.C. 215 373 S.E.2d 706 (Ct.App.1988); Curry v. Curry, 309 S.C. 539, 424 S.E.2d 552 (Ct.App.1992). Consequently, 25% of all of the milita......
  • Prevatte v. Prevatte, No. 1277
    • United States
    • Court of Appeals of South Carolina
    • 7 Diciembre 1988
    ...of marital property and its judgment will not be disturbed on appeal absent a showing of abuse of discretion." Martin v. Martin, 296 S.C. 436, 373 S.E.2d 706, 709 (Ct.App.1988). We find no abuse of Mr. Prevatte argues the trial judge erred in "affirming its award to [Mrs. Prevatte] of attor......
  • Fortenberry v. Fortenberry, 2013-UP-364
    • United States
    • Court of Appeals of South Carolina
    • 2 Octubre 2013
    ...2011), (1) we find the adultery occurred post-separation and thus did not cause the breakdown of the marriage, [1] see Martin v. Martin, 296 S.C. 436, 442, 373 S.E.2d 706, 710 (Ct. App. 1998) (finding it appropriate not to consider fault when wife's post-separation adultery did not affect t......
  • Request a trial to view additional results

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