Moore v. Moore, Appellate Case No. 2013–001359.

• Decision Date: 07 October 2015
• Docket Number: No. 27579.,Appellate Case No. 2013–001359.,27579.
• Citation: 779 S.E.2d 533,414 S.C. 490
• Court: South Carolina Supreme Court
• Parties: Whitney L. MOORE, Appellant/Respondent, v. Arthur R. MOORE, III, Respondent/Appellant.

414 S.C. 490

779 S.E.2d 533

Whitney L. MOORE, Appellant/Respondent,

v.Arthur R. MOORE, III, Respondent/Appellant.

Appellate Case No. 2013–001359.

No. 27579.

Supreme Court of South Carolina.

Heard Feb. 5, 2015.

Decided Oct. 7, 2015.

Rehearing Denied Dec. 17, 2015.

Timothy E. Madden and Reid T. Sherard, both of Nelson Mullins Riley & Scarborough, LLP, of Greenville, for appellant/respondent.

Donald B. Clark and Margaret D. Fabri, both of Charleston, for respondent/appellant.

Justice KITTREDGE.

This domestic relations matter comes before us on cross-appeals from Whitney Moore (Wife) and Arthur Moore, III, (Husband) from an order of the family court valuing and dividing the parties' closely held business, Candelabra. We affirm the family court's inclusion of Wife's enterprise goodwill in the business as marital property. We, however, modify the valuation and equitable division award, and for the reasons explained below, we direct Wife to pay to Husband the sum of $338,525, together with interest at the rate directed by the family court, calculated from the date of the family court final order, within ninety days of the sending of the remittitur to the family court pursuant to Rule 221, SCACR. We reverse the award to Husband of $122,557 in expert witness fees.

I.

In appeals from the family court, this Court reviews factual and legal issues de novo. Simmons v. Simmons, 392 S.C. 412, 414–415, 709 S.E.2d 666, 667 (2011). Thus, this Court has jurisdiction to find facts in accordance with its own view of the preponderance of the evidence. This broad scope of review, however, does not require the Court to disregard the findings of the family court, which is in a superior position to make credibility determinations. Lewis v. Lewis, 392 S.C. 381, 385, 709 S.E.2d 650, 651–52 (2011). We have carefully reviewed the approximately 3500–page record, and we commend the excellent family court judge for her thoughtful handling of this contentious and difficult case.

II.

A.

The parties met and began dating when they were living in Charlotte, North Carolina. They were married on June 9, 2001, and lived throughout the marriage in Charleston County, South Carolina. Two children were born of the marriage. The parties separated in March 2011.

Wife graduated from the University of North Carolina at Greensboro in the early 1990s with a four-year degree in textile products marketing and a minor in business. Upon graduation, Wife was employed with Belk department store in its two-year executive training program, which she described as "kind of extended schooling," through which she learned the "ins and outs of retailing" and "shadow[ed] everybody from the bottom to the top."

In the five years following the Belk executive training program, Wife held various positions within the Belk company, including area sales manager, assistant buyer, a position with the payroll and productivity department, and a "co-op" position through which Wife was employed by both Belk and clothing vendor Tommy Hilfiger. Wife testified that during her employment with Belk and Tommy Hilfiger, her responsibilities involved scheduling/staffing; budgeting; managing sales, costs, and shrinkage; creating purchase orders; building and enhancing working relationships with vendors; selecting product from various lines and vendors; determining the amount of product needed at various stores; conducting sales and product merchandising seminars throughout a ten-store area; and assisting with the development of a special productivity initiative designed to more effectively manage staffing costs and enable further reductions in product pricing.

Husband studied corporate communications at the College of Charleston, where he also played baseball. After college, he was drafted to be a pitcher for the Florida Marlins in 1995, but injuries early on foreclosed the opportunity for a major league career. Thereafter, Husband "took a little break" and worked for a golf facility on Hilton Head Island for a few months before taking a sales position with Alltel Communications in Charlotte.

B.

After the parties met in Charlotte and began dating, Husband accepted a position selling medical supplies to nursing homes and prisons for Neighborcare, which required him to relocate to Charleston. Wife followed Husband to Charleston in late 1999 and briefly held a commission-only position selling fashion eyewear to optometrists throughout South Carolina before opening her own lighting and design business in April 2001, just before the parties married.¹ Throughout his tenure at Neighborcare, Husband traveled frequently throughout the state and earned $170,000 to $185,000 per year. Wife drew some money out of Candelabra in the early years to contribute to household expenses, but it was Husband who paid the bulk of the household expenses.

Candelabra is a retail business located on Coleman Boulevard in Mount Pleasant that sells trendy, high-end boutique lighting, home furnishings, and home accessories in a retail showroom. Within the last several years, a growing percentage of Candelabra's business has come from a developing base of internet sales. Candelabra does not manufacture any products; rather, it sells products manufactured by various vendors on a non-exclusive basis.

Candelabra is a registered S–Corp, with 51% of the stock titled in Wife's name and 49% titled in Husband's name. From the beginning, Wife has served as the President of Candelabra and has been responsible for overseeing all business operations: financial forecasting and management, budgeting, hiring, scheduling, training, merchandising, and most importantly, selecting and displaying all of the products. By all accounts, Wife is an experienced, successful businesswoman with an exceptional "eye for design," a knack for selecting specific products that appeal to her customers and consistently generate sales, and the ability to create long-term, positive relationships with vendor and manufacturer representatives.²

C.

When Candelabra first opened in 2001, the Charleston housing market was experiencing a boom, and Wife was able to grow the business by establishing relationships with lighting vendors and with various subcontractors, particularly those working in the I'On development in Mount Pleasant, who continued to do business with Candelabra after completion of the I'On development.

As sales continued to grow, Wife determined that Elizabeth Goff, a key Candelabra employee, should be dedicated exclusively to builder and contractor sales. In the early years of Candelabra's existence, Wife's growth strategy was to continue to nurture the existing contractor relationships, primarily through Goff, while also establishing new relationships with other contractors and interior designers, and expanding Candelabra's product offerings to include more than just lighting. At that time, internet retailing was not well-established among small businesses, so there was no internet component to Candelabra's business.

Although Husband had held the title of Candelabra's Vice President since the time of incorporation, other than assisting Wife in preparing the store for the grand opening and intermittently serving as the "muscle" to help move, hang, or deliver heavier items, Husband was not actively involved in the business prior to 2005. However, several things occurred in 2005 that impacted Candelabra and the parties' working arrangements. First, after experiencing four miscarriages, Wife had become pregnant and was having a difficult pregnancy that, at times, required her to be on bed rest, thereby reducing the amount of time she was able to spend at the store. Around the same time, Husband's employer, Neighborcare, was bought out by another company, and Husband's position was eliminated. Thereafter, Husband began spending more time at Candelabra such that he considered his work there to be his full-time employment, and he did not seek any other type of employment.³

In the fall of 2005, while Wife was on maternity leave with the couple's first child, Husband determined that Wife's strategy aimed at contractor sales was too tedious and time- consuming, and Husband unilaterally determined that the better sales-generation strategy would be to pursue large corporations and multi-unit dwellings, such as the 122–unit Tides Condominium project in Mount Pleasant. Candelabra eventually landed the Tides project.

Goff had difficulty working for Husband, and she resigned her position at Candelabra when Wife returned to work from maternity leave. Candelabra lost business when Goff left and took the contractor business with her. As Wife testified:

It was bad business to throw away all of our old contractors in lieu of a one-time deal no matter what it was making us and I knew that. It didn't mean we shouldn't take it on, [but] we needed to structure it where we could keep our contractors and keep our other business flowing and then have somebody who worked the Tides additionally.

....

I've never been in a business where you take the one shot quick fix fast money deal in lieu of letting go of your constant and consistent business that you built relationships with because when you nip that off in the bud and the Tide[s are] gone, you might not have anything else left because the Tides is a one shot deal.... It's nothing you can really grow your business on if you're not continuing good business with your other contractors. And when [Husband] came in and talked with [Goff] about giving up contractors and that we weren't going to go that route anymore, she was dumb founded and she left, and she took the contractors and we were left with the Tides.⁴

During this same period of time, the parties were experiencing marital discord as well. The evidence demonstrates Husband has a violent temper. A particularly intense disagreement occurred during the spring of 2007, in which Husband became so angry that he threw a drink glass at Wife, narrowly missing her. Husband then grabbed the couple's child, who...