Reiss v. Reiss, 4797.

• Decision Date: 23 February 2011
• Docket Number: No. 4797.,4797.
• Citation: 708 S.E.2d 799,392 S.C. 198
• Parties: Margaret M. REISS, Respondent,v.Paul W. REISS and Pamela Buck a/k/a Pamela Evans, Defendants,of whom Paul W. Reiss is the Appellant.
• Court: South Carolina Court of Appeals

392 S.C. 198

708 S.E.2d 799

Margaret M. REISS, Respondent,

v.Paul W. REISS and Pamela Buck a/k/a Pamela Evans, Defendants,of whom Paul W. Reiss is the Appellant.

No. 4797.

Court of Appeals of South Carolina.

Heard Nov. 3, 2010.Decided Feb. 23, 2011.

Anthony P. LaMantia, III, of Charleston, for Appellant.Stephanie P. McDonald, of Charleston, for Respondent.LOCKEMY, J.

In this domestic action, Paul W. Reiss (Husband) appeals the family court's final decree of divorce alleging error in the family court's (1) valuation of marital property, (2) equitable apportionment, (3) award of alimony to Margaret M. Reiss (Wife), (4) calculation of his support arrearage, and (5) award of attorney's fees in favor of Wife. We affirm.

FACTS

Husband and Wife were married in June 1990, and no children were born as a result of the marriage. During the marriage, the parties maintained a marital home on Kiawah Island (Kiawah Property). Husband was employed as a commercial fisherman and participated in the wreckfish fishery off the coast of South Carolina. In 1991, the parties formed Pamar Holdings to administer the fishing business as equal shareholders. Wife worked in the parties' fishing business for most of the marriage. In 2002 Wife was diagnosed with breast cancer.

In spring 2004, Husband began an adulterous relationship with Pamela Buck. Unbeknownst to Wife, Husband sold an investment property the parties owned on Seabrook Island (Seabrook Property) netting approximately $437,000. Husband used a portion of the proceeds personally and transferred approximately $362,000 to Buck, who used the funds to aid in the purchase of a property in Florida (Florida Property). Buck subsequently transferred the Florida Property to PBR Holdings, LLC owned by Husband and Buck. A month after this action was filed in family court, PBR Holdings transferred the Florida Property back to Buck. Buck later sold the Florida Property for approximately $750,000.

In January 2004, Husband left the Kiawah Property to fish in the Gulf of Mexico region. A few months later, Wife moved in with her parents in Florida to undergo medical treatment for cancer. During her treatment, Wife visited the Kiawah Property and discovered numerous items missing. Later, Wife learned Husband was having an affair with Buck. In March 2005, Wife initiated this action for divorce on grounds of adultery. After a trial, the family court issued a final decree of divorce declaring the parties divorced, awarding Wife alimony, and equitably dividing the parties' marital estate. This appeal followed.

STANDARD OF REVIEW

In appeals from the family court, this court has the authority to find facts in accordance with its own view of the preponderance of the evidence. Wooten v. Wooten, 364 S.C. 532, 540, 615 S.E.2d 98, 102 (2005). Despite this broad scope of review, this court is not required to disregard the findings of the family court. Id. We are mindful that the family court, who saw and heard the witnesses, was in a better position to evaluate their credibility and assign comparative weight to their testimony. Id.

LAW/ANALYSIS

I. Valuation of Marital Property

Husband argues the family court erred in valuing several pieces of the parties' marital property. The family court has broad discretion in valuing marital property. Roe v. Roe, 311 S.C. 471, 478, 429 S.E.2d 830, 835 (Ct.App.1993). The family court's determination of the value of marital property will not be disturbed absent an abuse of discretion. See id.

A. Cost of Repairs to the Kiawah Property

Husband contends no evidence supports the family court's finding the cost of repairs to the Kiawah Island Property totaled $269,000. We disagree.

The family court issued a temporary order awarding Wife exclusive use and possession of the Kiawah Property and ordered Husband to pay the insurance on the property. However, in August or September 2005, Husband allowed the insurance to lapse and when Wife subsequently visited the Kiawah Property, she discovered water damage. Wife testified an engineering report revealed the air conditioning system malfunctioned causing extensive water damage to the floors, walls, and ceiling. At trial, Wife estimated the cost of repairs at $221,000; however, her financial declaration listed an estimated repair cost of $269,000. According to Husband, he hired a contractor to repair the Kiawah Property for $8,000. The family court was free to accept Wife's valuation over Husband's, and its finding is within the range of the evidence presented. See Pirri v. Pirri, 369 S.C. 258, 264, 631 S.E.2d 279, 283 (Ct.App.2006) (finding 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”). Accordingly, we find the family court did not abuse its discretion in valuing the cost of repairs to the Kiawah Island property.

Additionally, Husband maintains the family court erred in making him solely responsible for the cost of repairs because the water damage was present when the insurance policy was in effect. Husband points to inconsistencies in Wife's testimony and concludes they indicate she discovered the water damage while the insurance was in effect and failed to file an insurance claim. Although Wife's testimony is vague on the issue of exactly when she discovered the damage in relation to when the insurance policy lapsed, she was consistent in her testimony that she did not file an insurance claim because no insurance was in effect. Because this is an issue of credibility, and the family court was in a better position than this court to judge the witness's credibility, we defer to the family court's findings. See Avery v. Avery, 370 S.C. 304, 315, 634 S.E.2d 668, 674 (Ct.App.2006) (deferring to the family court's equitable distribution when issue was one of witness credibility).

B. Kiawah Property Equity

Husband argues the family court erred in determining the equity in the Kiawah Island property was $485,000. Husband contends the family court improperly reduced the amount of equity in the Kiawah Property by $400,000 to account for the mortgage Wife unilaterally secured on the property and should have determined the amount of equity to be $735,000. We disagree.

Husband's argument misconstrues the family court's order. The family court valued the equity in the Kiawah Property at $885,000 based upon two appraisals. The family court then subtracted $400,000 from the equity to account for the loan Wife unilaterally secured on the property during litigation and awarded her $485,000 in credit towards the equitable apportionment. Husband did not receive any credit for the equity in the Kiawah Property. It appears the family court counterbalanced the Kiawah Property equity in Wife's favor with Husband's fishing vessel, the Bold Venture, valued at $450,000 in his favor. Further, the family court ordered that Wife assume sole responsibility for the mortgage. In sum, the family court reduced the amount of credit awarded to Wife for the equity in the Kiawah Property. This reduction was to Husband's benefit. We find no abuse of discretion in the family court's calculation of the equity in the Kiawah Property.

C. Bold Venture

Husband argues the family court erred in valuing the fishing vessel Bold Venture at $450,000 when the overwhelming evidence presented at trial demonstrated its value was $100,000. At trial, Husband asserted the value of the Bold Venture was $100,000.¹ However, in a salvage action filed in the United States District Court for the District of South Carolina six months before Wife initiated this divorce action, Husband asserted the value of the Bold Venture was $450,000. Relying on Hayne Federal Credit Union v. Bailey, the family court found Husband was judicially estopped from asserting a value different than $450,000. 327 S.C. 242, 251, 489 S.E.2d 472, 477(1997) (adopting the doctrine of judicial estoppel as it relates to matters of fact). Husband has not appealed the family court's judicial estoppel ruling; therefore, it is law of the case. In re Morrison, 321 S.C. 370, 372 n. 2, 468 S.E.2d 651, 652 n. 2 (1996) (noting an unappealed ruling becomes law of the case and precludes further consideration of the issue on appeal). Accordingly, we are precluded from considering Husband's argument.

II. Husband's Income

Husband argues the family court erred in determining his yearly income and should have imputed a $65,000 per year income to Wife. We disagree.

In domestic actions, this court reviews alimony awards and the family court's equitable apportionment of marital property for an abuse of discretion. Dearybury v. Dearybury, 351 S.C. 278, 282, 569 S.E.2d 367, 369 (2002) (finding the decision to grant or deny alimony rests within the sound discretion of the family court and will not be disturbed absent an abuse of discretion); Greene v. Greene, 351 S.C. 329, 340, 569 S.E.2d 393, 399 (Ct.App.2002) (“The apportionment of marital property will not be disturbed on appeal absent an abuse of discretion.”). Pursuant to section 20–3–130(C)(6) of the South Carolina Code (Supp.2010), the family court must determine the current and reasonably anticipated earnings of both spouses in making an award of alimony. Likewise, in equitably apportioning the parties' marital property the family court must consider the income and earning potential of each spouse. S.C.Code Ann. § 20–3–620(B)(4) (Supp.2010).

Husband's financial declaration fails to expressly specify his income and merely states “See Tax Returns.” Husbands 2006 individual tax return states a taxable income of $0.00. Husband's fishing business, Stone Bass Fisheries, LLC, reported a net profit of $61,667 for 2006. However, PBR Holdings, also owned by Husband, reported a net loss of $61,667 for 2006. In contrast, Husband's 2004 individual tax return states a taxable income of $323,096. In an affidavit filed in conjunction with the...