Pool v. Pool, 2451

• Citation: 321 S.C. 84,467 S.E.2d 753
• Decision Date: 23 January 1997
• Docket Number: No. 2451,2451
• Court: South Carolina Court of Appeals
• Parties: Deborah Ann POOL, Appellant, v. William R. POOL, Respondent.

Page 753

467 S.E.2d 753

321 S.C. 84

Deborah Ann POOL, Appellant, v. William R. POOL, Respondent.

No. 2451.

Court of Appeals of South Carolina.

Submitted Dec. 5, 1995.

Decided Jan. 22, 1996.

Rehearing Denied March 21, 1996.

Certiorari Granted Jan. 23, 1997.

Maggi Fields Bailey and Richard H. Warder, Greenville, for appellant.

Kathleen P. Jennings, Greenville, for respondent.

PER CURIAM:

In this domestic case, the family court granted William R. Pool (the husband) a divorce from Deborah Ann Pool (the wife) based upon the wife's adultery, awarded custody of the minor child as well as child support to the husband, equitably divided the marital property, and awarded attorneys fees and costs to the husband. ¹ The issues on appeal concern the distribution of marital property, and the award of attorney's fees and costs to the husband. We affirm as modified. ²

The Pools were married on April 8, 1988. It was the third marriage for the wife and second marriage for the husband. The wife has two children from a previous marriage, and the Pools have a daughter, Kayla, born in 1989. They separated in November of 1991. At the time of the divorce hearing, the court found the wife was thirty-five years of age, in good health, with a monthly income of $1306. The husband was thirty-two years of age, in good health, with a monthly income of $2166.

In its equitable distribution order, the family court awarded forty percent (40%) of the marital property to the wife and sixty percent (60%) to the husband. The primary marital asset was the marital home in which the equity was valued at $33,475.51. The husband was allowed to purchase the wife's interest in the house. The court concluded the Fitness Connection, a health club operated by the husband, was nonmarital property and had not been transmuted into marital property. The court also awarded the husband attorney's fees of $6000 and investigator fees of $1500. These fees are to be deducted from the wife's share of the equity in the marital home. Based upon these figures, the wife received approximately $5890 as her share of the equity in the marital home. ³

I.

On appeal, the wife asserts the court erred in failing to award her fifty percent of the marital estate based upon her direct and indirect contributions to the marriage. She also contends the court erred in not including the Fitness Connection and an IRA titled in the husband's name as marital property.

According to her exhibit, the wife made approximately twenty percent of the direct financial contributions to the accumulation of the marital estate. She testified she performed all the homemaker services and was the primary caretaker of their child. Conversely, the husband testified he made approximately sixty percent of the indirect contributions to the marriage such as cooking, cleaning, and taking care of their daughter. He also introduced an exhibit showing he made approximately seventy-one percent of the direct financial contributions to the marriage.

With respect to the disputed property, the husband owned the Fitness Connection before the marriage. The wife testified she contributed to the business by suggesting new advertising, cleaning the gym, working with female clients, and managing it when her husband was not there. The husband, on the other hand, testified his wife had almost no involvement with the business and did not perform the services she claimed. Both parties offered expert witnesses on the value of the Fitness Connection. The husband had experience in bodybuilding and fitness and testified the Fitness Connection had no real worth as a business without him because of its service oriented nature. He admitted he purchased approximately $10,000 worth of equipment for the business during the marriage and testified the equipment had a fair market value of $3300 at the date of filing. Additionally, the husband made contributions of $6000 to an IRA during the term of the marriage.

Marital property is generally defined as all real and personal property acquired by the parties during the marriage and which is owned as of the date of filing or commencement of marital litigation, regardless of how legal title is held. See S.C.Code Ann. § 20-7-473 (Supp.1994). Upon dissolution of the marriage, property acquired during the marriage should be divided and distributed in a manner which fairly reflects each spouse's contribution to its acquisition, regardless of which spouse holds legal title. Johnson v. Johnson, 296 S.C. 289, 372 S.E.2d 107 (Ct.App.1988), cert. denied, 298 S.C. 117, 378 S.E.2d 445 (1989). Property acquired by either party before the marriage is considered nonmarital property. In certain circumstances, nonmarital property may be transmuted into marital property if: (1) it becomes so commingled with marital property as to be untraceable; (2) it is jointly titled; or (3) it is utilized by the parties in support of the marriage or in some other manner so as to evidence an intent by the parties to make it marital property. Id. Transmutation is a matter of intent to be gleaned from the facts of each case. 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. Id. The mere use of separate property to support the marriage, without some additional evidence of intent to treat it as property of the marriage, is not sufficient to establish transmutation. Murray v. Murray, 312 S.C. 154, 439 S.E.2d 312 (Ct.App.1993).

With respect to the apportionment of the marital property, we find no abuse of discretion in the award of sixty percent of the marital property to the husband and forty percent to the wife. Obviously, the husband made the greater direct contributions. Additionally, the court considered other factors set forth in S.C.Code Ann. § 20-7-472 (Supp.1994). The court assessed the credibility of the parties in weighing their testimony concerning their indirect contributions to the marriage and concluded the parties contributed equally in terms of indirect contributions. Although our broad scope of review allows this court to find the facts in accordance with our own view of the preponderance of the evidence, we are not required to disregard the findings of the trial judge who saw and heard the witnesses and was in a better position to evaluate their credibility. Cherry v. Thomasson, 276 S.C. 524, 280 S.E.2d 541 (1981). On review, this court looks to the fairness of the overall apportionment. Johnson, 296 S.C. 289, 372 S.E.2d 107. We find no error in the apportionment.

As to the identification and valuation of the marital property, the court found the Fitness Connection was owned by the husband before the marriage. The business operated at a leased location and the property consisted primarily of exercise equipment. While the husband used income from the business to support the family during the marriage, there is no additional evidence of intent to treat the business as marital property. However, the husband testified he purchased approximately $10,000 worth of exercise equipment for the business during the marriage which he valued at $3300 as of the date of filing. The parties' joint 1990 tax return shows they reported rental income from the Fitness Connection for leased equipment. We conclude the husband utilized marital funds to purchase $10,000 worth of equipment during the marriage and, he failed to establish the equipment was separate property. Therefore, the equipment purchased during the marriage was marital property. See Berry v. Berry, 290 S.C. 351, 350 S.E.2d 398 (Ct.App.1986) (marital property is all property accumulated during the marriage which does not fall within some...