Pelletier v. Pelletier, 2014-UP-030

• Decision Date: 22 January 2014
• Docket Number: 2014-UP-030
• Court: South Carolina Court of Appeals
• Parties: Michele M. Pelletier, Respondent, v. Mark G. Pelletier, Appellant. Appellate Case No. 2011-197826

Michele M. Pelletier, Respondent, v. Mark G. Pelletier, Appellant.

Appellate Case No. 2011-197826

No. 2014-UP-030

Court of Appeals of South Carolina

January 22, 2014

UNPUBLISHED OPINION

Heard November 13, 2013.

Appeal From Richland County Anne Gué Jones, Family Court Judge

Howard S. Sheftman, of Finkel Law Firm, and Emma I. Bryson, of Bryson Law Office, LLC, both of Columbia, for Appellant.

Thomas M. Neal, III, of Law Offices of Thomas M. Neal, III, and Yulee E. Harrelson, both of Columbia, for Respondent.

PER CURIAM

This appeal arises from the family court's final order of divorce. On appeal, Appellant Mark Pelletier (Husband) argues the family court erred by: (1)transmuting Husband's nonmarital assets; (2) valuing Husband's dental office building; (3) equitably dividing marital property; and (4) awarding attorney's fees. We affirm in part, reverse in part, and remand.

1. We find the family court did not abuse its discretion in determining the dental practice, dental office building, and lake lot were transmuted into marital property. The evidence in the record supports a finding that during the marriage the parties intended to treat the disputed property as marital property. See Myers v. Myers, 391 S.C. 308 313, 705 S.E.2d 86, 89 (Ct. App. 2011) ("In appeals from the family court, this court may find facts in accordance with its own view of the preponderance of the evidence."); S.C. Code Ann. § 20-3-630(A) (Supp 2012) (defining "marital property" as "all real and personal property which has been acquired by the parties during the marriage and which is owned as of the date of filing or commencement of marital litigation"); Fitzwater v. Fitzwater, 396 S.C. 361, 367, 721 S.E.2d 7, 10 (Ct. App. 2011) (providing nonmarital property "can be . . . transmuted into marital property and become subject to equitable division if the property: (1) becomes so commingled with marital property as to be untraceable; (2) is utilized by the parties in support of the marriage; or (3) is titled jointly or otherwise utilized in such a manner as to evidence an intent by the parties to make the property marital property"); Johnson v Johnson, 296 S.C. 289, 295, 372 S.E.2d 107, 110 (Ct App. 1988) ("[T]ransmutation is a matter of intent to be gleaned from the facts of each case."); id. at 295, 372 S.E.2d at 110-11 ("The spouse claiming transmutation must produce objective evidence showing that, during the marriage, the parties themselves regarded the property as the common property of the marriage."); Pittman v. Pittman, Op. No. 27352 (S.C. Sup. Ct. filed Jan. 15, 2014) (Shearouse Adv. Sh. No. 2 at 93) (holding the husband's land survey business was transmuted, relying in part on the husband paying the wife a high salary and contributing to the wife's retirement account with the expectation that it would benefit both parties during their retirement).

2. As to whether the family court erred by valuing the dental office building at $1, 363, 455 based upon the testimony of court-appointed appraiser Calhoun Kennedy, we find no abuse of discretion because the family court's valuation of the dental office building was within the range of values testified to at trial. See Skipper v. Skipper, 290 S.C. 412, 414, 351 S.E.2d 153, 154 (1986) (holding absent an agreement between the parties to the contrary, the family court should divide property according to value); Pirri v. Pirri, 369 S.C. 258, 264, 631 S.E.2d 279, 283 (Ct. App. 2006) (noting when valuing marital assets, the "family court may accept the valuation of one party over another, and the court's valuation of marital property will be affirmed if it is within the range of evidence presented"); Fuller v. Fuller, 370 S.C. 538, 546-47, 636 S.E.2d 636, 641 (Ct. App. 2006) (providing "the family court has broad discretion in valuing marital property"); Smith v. Smith, 294 S.C. 194, 198, 363 S.E.2d 404, 407 (Ct. App. 1987) ("The weight that the trial court affords the testimony of witnesses, including parties, is discretionary with the trial court.").

3. As to whether the family court erred in equitably dividing marital property, we find no abuse of discretion because the family court properly considered the relevant statutory factors and the apportionment was both fair and equitable. See Pruitt v. Pruitt, 389 S.C. 250, 269, 697 S.E.2d 702, 713 (Ct. App. 2010) ("The apportionment of marital property is within the discretion of the family court and will not be disturbed on appeal absent an abuse of discretion."); S.C. Code Ann. § 20-3-620(B) (Supp 2012) (providing fifteen factors the family court is to consider in apportioning the marital estate, but also affording the family court discretion to give such weight to each factor as it finds appropriate); Doe v. Doe, 370 S.C. 206, 213-14, 634 S.E.2d 51, 55 (Ct. App. 2006) ("On appeal, this court looks to the overall fairness of the apportionment, and it is irrelevant that this court might have weighed specific factors differently than the family court."). Additionally, the family court did not err by making findings concerning Husband's character, conduct, and testimony at trial. The family court was entitled to make credibility findings, and the findings are supported by the record. See Lewis v. Lewis, 392 S.C. 381, 392, 709 S.E.2d 650, 655 (2011) ("[W]hile retaining the authority to make our own findings of fact, we recognize the superior position of the family court judge in making credibility determinations." (footnote omitted)); Gandy v. Gandy, 297 S.C. 411, 414, 377 S.E.2d 312, 313-14 (1989) ("Custody is based on a determination of the character, fitness, attitude and inclinations on the part of each parent."). Further, regarding whether the family court erred by...