Mitchell v. Mitchell

• Decision Date: 07 June 1984
• Docket Number: No. 22161,22161
• Citation: 320 S.E.2d 706,283 S.C. 87
• Court: South Carolina Supreme Court
• Parties: Ann Dudley MITCHELL, Appellant, v. Dana C. MITCHELL, III, Respondent. . Heard

Page 706

320 S.E.2d 706

283 S.C. 87

Ann Dudley MITCHELL, Appellant, v. Dana C. MITCHELL, III, Respondent.

No. 22161.

Supreme Court of South Carolina.

Heard June 7, 1984.

Decided Aug. 27, 1984.

J.D. Todd, Jr., of Leatherwood, Walker, Todd & Mann, Greenville, for appellant.

Kenneth C. Porter, of Porter & Rosenfeld, Greenville, for respondent.

CHANDLER, Justice:

The Appellant-Wife initiated this action for divorce upon the statutory ground of one year continuous separation, seeking The Trial Judge granted the divorce, awarded sole custody of the children to Wife, subject to Husband's right to reasonable visitation, and required him to maintain health insurance for the children. The Court also divided personal property equally between the parties, and awarded Husband a 50% interest in the proceeds from the sale of the marital home titled only in Wife's name. Further, Husband was ordered to pay $400.00 per month child support as follows: Wife was to retain, in an interest-bearing account, Husband's one-half of the marital home proceeds, with her having the right to withdraw monthly, $400.00 in interest and principal to pay the support. Wife was denied alimony, and the parties were ordered to pay their own attorney's fees.

                custody of the parties' two minor children, child support, attorney's fees, health insurance for the children, and life insurance on Respondent-Husband's life for the benefit of the children.   Husband cross-petitioned for reasonable visitation, attorney's fees and equitable distribution of all real and personal property acquired during the marriage
                

Wife appeals on several grounds while Husband appeals only the Order settling the Record. We affirm as modified and remand for further proceedings in accordance with this opinion.

A divorce action being a matter in equity heard by the Trial Judge alone, this Court's scope of review extends to the finding of facts based on its own view of the preponderance of the evidence. Baker v. Baker, 276 S.C. 427, 279 S.E.2d 601 (1981); Townes Associates Ltd. v. City of Greenville, 266 S.C. 81, 221 S.E.2d 773 (1976).

The parties were married in May of 1974 while both worked as graduate assistants at the University of South Carolina. Upon marriage Wife had approximately $3,000.00 in assets in a savings account and a 1973 Volkswagen; Husband had $94,480.00, a $35,480.54 equity in a residence, and $59,000.00 in an irrevocable trust from which he could withdraw interest and principal. Husband also was required by Court Order to pay $400.00 per month child support for two children born of a previous marriage.

Approximately 1 1/2 years after marriage, Husband entered law school, graduating in 1978. During law school he had two part-time jobs and also received $400.00 per month in G.I. Bill benefits. Wife worked the entire time of the marriage except for two brief periods during the birth of their two children.

Both parties contributed their entire earnings to the support of the family, and Husband withdrew money from his trust periodically to cover expenses. Income tax returns revealed that during the marriage, Husband contributed $130,831.97 and Wife, $28,194.52. At the time of divorce, the trust was depleted.

From 1974 until they separated in 1980, the parties occupied four residences, the first of which was owned by Husband prior to the marriage and titled in his name. The next, acquired in 1975 with money from the sale of the first, was titled in both names. The third, purchased from the proceeds of the second, was titled in Wife's name only, as was the last, acquired in 1977.

From December, 1977, until separation in August, 1980, the parties occupied this fourth residence, where Wife remained until June 15, 1981, when she sold the property for net proceeds of $65,000.00. From these proceeds she repaid a $6,000.00 loan, borrowed for support of the children during the year of separation. She then invested the remaining approximately $58,000.00 in a Merrill Lynch fund from which she receives $650.00 per month interest income.

Wife testified the $650.00 per month interest was her entire income. Following a change in her hours of employment, she had been unable to obtain care for her children and was compelled to resign from a job.

According to Husband's financial declaration, his monthly expenses exceeded income by almost $200.00 a month, he was repaying approximately $16,000.00 in loans,

$12,500.00 of which he borrowed from his father to start a law practice, and his only asset was a 1973 Volkswagen valued at $1,500.00.

EQUITABLE DISTRIBUTION OF REAL PROPERTY

Wife argues the marital home was a gift to her and, therefore, not subject to equitable distribution under the law existing when this action was commenced. She contends further the Order of the lower court can be affirmed only through retrospective application by this Court of holdings in Parrott v. Parrott, 278 S.C. 60, 292 S.E.2d 182 (1982), and Burgess v. Burgess, 277 S.C. 283, 286 S.E.2d 142 (1982), both decided after the trial of this case. We disagree.

The Order of the Trial Judge was not based upon the question decided in the later case of Parrott, supra, hence there is no issue of its retrospective application by this Court.

In Burgess, supra, interspousal gifts were for the first time held to be subject to equitable distribution. Burgess, supra, would have application here only if the real estate were held to be a gift. However, the Trial Judge, in a finding of fact supported fully by the record, concluded that the real estate was not a gift and, therefore, was to be treated as marital property.

This finding having been correctly decided adversely to Wife, it is not necessary to consider the issue of retrospective application of Burgess, supra.

Equitable distribution was first recognized by this Court in Wilson v. Wilson, 270 S.C. 216, 241 S.E.2d 566 (1978), which held that where the wife has made material contributions to the husband's acquisition of property during the marriage, she acquires a special equity in that property, though titled only in her husband's name. Two years later, in Glass v. Glass, 276 S.C. 625, 281 S.E.2d 221 (1981), we made it clear that this principle applies with equal force to the husband.

The Trial Judge properly applied the law of Wilson, supra, and Glass, supra, in finding the marital home subject to equitable distribution.

Wife argues alternatively that, even if this Court should find the marital home subject to equitable distribution, Husband should not have been awarded a 50% interest. We disagree. She further contends the $6,000.00 loan should have been subtracted from the $65,000.00 proceeds prior to division. We agree.

When making an equitable distribution, the Trial Court must consider the relative incomes of the parties, their material contributions and debts, and the facts and circumstances of the particular case. Parrott, supra; Bugg v. Bugg, 277 S.C. 270, 286 S.E.2d 135 (1982); Baker v. Baker, supra; Simmons v. Simmons, 275 S.C. 41, 267 S.E.2d 427 (1980); Wilson, supra.

Although both parties were employed during most of the marriage, Husband contributed over $130,831.97, which included his own $59,000.00 trust, and Wife, $28,194.52.

Furthermore, Husband's $35,480.54 equity in the home owned by him upon marriage was used to purchase the other marital homes. At the time of trial, Wife was not employed but had accepted a position and planned to begin work soon at a $14,000.00 salary. She had no debts, while Husband was repaying a loan of over $16,000.00.

We find it was fair and equitable to award Respondent 50% of the proceeds of the marital home sale.

We hold, though, that the $6,000.00...