Nelson v. Nelson

• Decision Date: 21 August 2019
• Docket Number: Opinion No. 5678,Appellate Case No. 2017-000291
• Citation: 428 S.C. 152,833 S.E.2d 432
• Court: South Carolina Court of Appeals
• Parties: Harrison Shelby NELSON, Appellant/Respondent, v. Melissa Starr NELSON, Respondent/Appellant.

428 S.C. 152

833 S.E.2d 432

Harrison Shelby NELSON, Appellant/Respondent,

v.Melissa Starr NELSON, Respondent/Appellant.

Appellate Case No. 2017-000291

Opinion No. 5678

Court of Appeals of South Carolina.

Heard May 16, 2019

Filed August 21, 2019

Joseph P. Cerato, of Joseph P. Cerato, P.A., of Charleston, for Appellant/Respondent.

Alexander Blair Cash, of Rosen Rosen & Hagood, LLC, of Charleston, for Respondent/Appellant.

THOMAS, J.:

In this cross-appeal arising from an action for divorce, Harrison Shelby Nelson (Husband) appeals the family court's final order and final amended order. Melissa Star Nelson (Wife) appeals the family court's order granting Husband's motion pursuant to Rule 60(b) of the South Carolina Rules of Civil Procedure. On appeal, Husband argues the family court erred in (1) finding the parties' property at 6 Judith Street had no mortgage; (2) valuing the property at 6 Judith Street; (3) finding Husband had a 50% ownership interest in 6 Judith Street; (4) valuing the parties' property at 109 North Shelmore Boulevard; (5) failing to equitably divide the parties' debt; (6) including a vehicle owned by Wife's father as a marital asset and the loan to finance that vehicle as a marital debt; (7) making numerous findings not supported by the record; (8) failing to credit Husband for using the sale of proceeds from an investment property at 18 Reid Street for marital purposes; (9) failing to equitably divide the parties' personal property; and (10) requiring Husband to contribute to Wife's attorney's fees. In her cross-appeal, Wife argues the family court erred in (1) finding excusable neglect existed to grant Husband's Rule 60(b) motion; (2) causing her unfair prejudice by granting Husband's Rule 60(b) motion; and (3) failing to find Husband was estopped from seeking relief under Rule 60(b) due to his own bad conduct. We affirm.

FACTS/PROCEDURAL HISTORY

Husband filed this action for divorce in May 2015 after eighteen years of marriage with Wife. The parties reached a settlement agreement regarding the custody and visitation of their two daughters in June 2016, and tried the remaining issues of equitable apportionment and attorney's fees in September 2016.

At the outset of the trial on the financial and property issues, Husband and Wife stipulated each party would retain the ownership interests and liabilities to their respective businesses, as well as the ownership interests in their business property, and agreed the approximate values of those assets were equal for the purposes of equitable apportionment. The remainder of the marital estate consisted predominately of the marital home, numerous real estate investments, tax debts, and personal property. The parties agreed the family court should apportion the total marital estate on an equal 50/50 basis, but disputed the values of certain assets and how the assets and liabilities should be distributed.

I. Property at 6 Judith Street

In 2007, Husband and his cousins, Hill Carter Redd and Samuel Cornelius Range Redd (collectively, the Redds), purchased an investment property at 6 Judith Street in Charleston for $920,000. Although only the Redds were listed on the deed to the property, Husband admitted in his financial declarations and at trial he used his commission from the sale of 6 Judith Street, $50,000, to purchase an interest in the property. In his initial financial declaration, Husband claimed he had a 50% interest in the property. However, in his subsequent financial declarations, he claimed he only had a "contingent interest." At trial, Husband claimed he was not sure what this interest was worth and did not know the terms of his agreement with his partners; however, he acknowledged the Redds invested approximately $450,000 in the property.

Wife testified Husband informed her of the $50,000 investment in 6 Judith Street shortly after he made the decision to invest in the property. According to Wife, Husband stated he would have "50 percent ownership in [the] property." Additionally, Wife recalled Husband stated he would receive $800 per month to manage the property.

Husband initially filed a sworn financial declaration indicating there was a $1.1 million mortgage on the property; however, in his subsequent declarations, he listed the mortgage owed as "UNKNOWN." At trial, Husband testified he believed the property was mortgaged, his partners handled the mortgage, and he "had nothing to do with the mortgage." He also testified the $1.1 million mortgage listed in his initial financial declaration was not correct. Husband admitted he failed to produce any documentation of any mortgage on the property despite Wife's attorney's request for these documents. Other than his testimony and his initial claim of a $1.1 million mortgage, Husband did not produce evidence of a mortgage on the property until after trial.

During Husband's cross-examination, Wife introduced the following documents she obtained from the Charleston County Register of Mesne Conveyances's office: a copy of the deed to the property in the name of Husband's partners, a copy of the original mortgage, and a document showing the satisfaction of the original mortgage. Husband objected to the introduction of these documents, arguing there was no foundation for their introduction because he previously testified he had never seen them before. Wife argued Husband testified he had an ownership interest in the property and the property was mortgaged; therefore, she sought to impeach his testimony using public records. Husband stated, "I would withdraw [the objection] if the purpose of their being put in, your [h]onor, is for impeachment of my client's financial declaration, I withdraw the objection." However, when each document was subsequently introduced, Husband stated he had no objection. After Wife introduced these documents, Husband testified he was not aware the mortgage had been satisfied but acknowledged there was currently not a mortgage on the property.

In his first two financial declarations, Husband claimed the property had a value of $1 million. In his third financial declaration, Husband listed the value of the property as "UNKNOWN." At trial, Husband acknowledged he listed the property for sale for $1.2 million, but he did not receive any offers. However, he stated he never listed the property for a lower price. He also admitted the property generated roughly $87,000 of rental income per year. Husband claimed the property was in poor condition due to lack of maintenance and testified he believed the property was not worth more than the $920,000 he and his partners paid for it. However, he also claimed he spent large sums of money to make repairs and improvements to the property. Wife testified she had "no idea how much money [was] in [6 Judith Street]" but, according to an estimate she found on the internet, she believed the property was worth roughly $1.2 million.

The family court found Husband's testimony regarding 6 Judith Street was not credible because he offered conflicting information in his financial declarations and gave conflicting testimony regarding the value of the property, his ownership interest, and the mortgage. The family court determined the property was worth $1 million and it was not mortgaged. Further, the family court found Husband and his cousins entered into a partnership to purchase and manage 6 Judith Street as a rental property because the evidence presented at trial reflected Husband and his partners agreed they would receive their initial investment and split the remaining profit in half when they sold the property. Accordingly, the family court found the marital value of Husband's investment in the property was $300,000.

II. Property at 109 North Shelmore Boulevard (Marital Home)

Wife purchased the marital home at 109 North Shelmore Boulevard in the I'On neighborhood of Mount Pleasant in 2004. In his initial financial declaration, Husband claimed the property was worth $900,000; however, in his subsequent declarations, he claimed the property was worth at least $1.13 million. Husband's expert witness, a real estate appraiser, testified he believed the property was worth $1.13 million. However, on cross-examination, Husband's expert acknowledged three of the five properties he used to value 109 North Shelmore sold for prices ranging from $938,000 to $995,000, and the other two properties had significantly more square footage than the marital home. He also admitted that out of the seventy recent sales in the I'On neighborhood, no houses with similar square footage sold for over $1 million.

Husband's expert acknowledged he did not use sales of multiple properties similar in size to 109 North Shelmore, including a home within a block of the marital home that sold for $899,000 four months before trial.

In her financial declaration, Wife stated she believed the property was worth $975,000. Wife also presented an expert witness, a realtor, who testified the property had a value of between $925,000 and $955,000. Wife's expert stated the home was "incredibly dated" compared to other homes in the area. Furthermore, Wife's expert testified all of the comparable homes she used sold within four months of trial and all of them sold for less than $1 million, including two properties with nearly the same square footage as the marital home, which each sold for less than $900,000. However, on cross-examination, Wife's expert admitted that when she initially valued the home at $875,000, she believed the home measured 2,800 square feet and valued the property at $312.50 per square foot. She acknowledged the property's tax records indicated the marital home was actually 3,313 square feet and that at her previous price per square foot, it would have a value of just over $1.03 million.

The family court found that although both experts presented credible testimony, Husband's expert did not rely upon many recent sales of comparable homes on the same street. The family court noted...