Phillips v. Phillips

• Decision Date: 10 November 1986
• Docket Number: No. 0836,0836
• Citation: 290 S.C. 455,351 S.E.2d 178
• Parties: Tammy G. PHILLIPS, Appellant, v. Claude F. PHILLIPS, Respondent. . Heard
• Court: South Carolina Court of Appeals

Page 178

351 S.E.2d 178

290 S.C. 455

Tammy G. PHILLIPS, Appellant, v. Claude F. PHILLIPS, Respondent.

No. 0836.

Court of Appeals of South Carolina.

Heard Nov. 10, 1986.

Decided Dec. 15, 1986.

Thomas C. Brissey, of Law Offices of Thomas C. Brissey, Greenville, for appellant.

Randolph W. Hunter, of Stilwell and Hunter, Greenville, for respondent.

GOOLSBY, Judge:

In this action for a legal separation brought by Tammy G. Phillips against her husband Claude F. Phillips, the wife appeals the family court's division of the marital estate. We affirm as modified.

The parties were married in 1981. Two years later, the wife sustained personal injuries in an automobile accident. Thereafter, the wife and the husband executed a release and endorsed a settlement check made payable to them both.

In 1984, the parties filed joint state and federal income tax returns. The returns resulted in refund checks being issued in both parties' names after the parties separated in January, 1985. The refunds totalled $2,800. The wife received none of these refunds.

The family court held that part of the settlement proceeds represented settlement of the husband's loss of consortium claim but that, in any case, all the settlement proceeds constituted a marital asset subject to equitable division. It awarded the wife 40 per cent of the marital estate. The family court neglected to mention the income tax refunds in identifying and dividing the marital property.

The wife first argues that there is insufficient evidence to support the family court's finding that a part of the settlement proceeds was paid in satisfaction of the husband's loss of consortium claim. We disagree.

Although the Court of Appeals in a case of this kind has jurisdiction to find the facts in accordance with its own view of the preponderance of the evidence, the Court of Appeals is not required to disregard the findings of fact made by the family court. Cooper v. Cooper, 289 S.C. 377, 346 S.E.2d 326 (Ct.App.1986). Questions regarding equitable distribution rest within the sound discretion of the family court whose conclusion will not be disturbed on appeal absent a showing of abuse. Bannen v. Bannen, 286 S.C. 24, 331 S.E.2d 379 (Ct.App.1985).

Here, the evidence, outlined above, supports the family court's finding that a part of the settlement proceeds was to compensate the husband for his loss of consortium arising out of his wife's accident. Cf. Hughey v. Ausborn, 249 S.C. 470, 154 S.E.2d 839, 25 A.L.R.3d 406 (1967) (a husband has a cause of action in South Carolina for loss of consortium resulting from personal injuries to his wife).

The wife next contends that the proceeds received by her in settlement of her personal injury claim were not marital property and that the family court erred in including these proceeds in the marital estate.

Because the evidence shows that the settlement proceeds were unallocated and were paid over to both parties after they each executed a release releasing their respective claims, we cannot say that...