Roberts v. Roberts, 1107

• Citation: 296 S.C. 93,370 S.E.2d 881
• Decision Date: 19 January 1988
• Docket Number: No. 1107,1107
• Court: Court of Appeals of South Carolina
• Parties: Regan S. ROBERTS, Appellant-Respondent, v. Richard B. ROBERTS, Respondent-Appellant. . Heard

Page 881

370 S.E.2d 881

296 S.C. 93

Regan S. ROBERTS, Appellant-Respondent, v. Richard B. ROBERTS, Respondent-Appellant.

No. 1107.

Court of Appeals of South Carolina.

Heard Jan. 19, 1988.

Decided March 14, 1988.

Robert L. Hallman, Columbia, for appellant-respondent.

G. Robin Alley, Columbia, for respondent-appellant.

GARDNER, Judge:

Regan S. Roberts (the wife) brought this divorce action against Richard B. Roberts (the husband) seeking, inter alia (1) child support and custody of the children, and (2) equitable distribution of the marital estate. The appealed order, inter alia, (1) required the husband to pay one-half of all medical expenses not paid by the wife's insurance, (2) found 43.45 acres adjacent to the marital home to be non-marital property and (3) provided that if neither the wife nor husband purchased the marital home on the basis evaluated, that the home and 5 acres surrounding it (this was originally part of a 48.45 acre tract) be sold at public auction and the proceeds be divided equally between the parties. Both parties appeal. We affirm in part, modify in part, reverse in part and remand.

The parties married on August 3, 1974, and three children, ages 10, 6 and 3 at the time of the hearing, were born of the marriage. The wife is a teacher and makes about $24,000.00 per year. The husband owns a construction business; in 1985 his business grossed in excess of $345,000.00; his financial declaration (dated June 30, 1986) shows a present net income of $14,772.00 per year; however, in 1985 he apparently had personal expenses of over $30,000.00 paid from his business account. A summary from the corporate checking account statements shows his business is obviously in a growing state.

The issues of merit are whether the trial judge erred by (1) requiring the husband to pay only one-half of the medical expenses of the children not covered by the wife's insurance and (2) excluding 43.45 acres of land from the marital estate.

The wife pays for the medical insurance for the children. We modify the appealed order's holding that the husband pay one-half of the excess medical bills for the children. We hold that the husband must pay the medical bills of the children in excess of the insurance the wife provides. And we so order.

Next, in addressing the issue of equitable distribution, the wife alleged that she had contributed to the acquisition of real property in the name of the husband; the husband denied this allegation.

Section 20-7-473, Code of Laws of South Carolina (Supp.1987), in essence, provides that all property acquired by the parties during the marriage is marital property and then sets forth certain exceptions among which is property acquired by gift. We hold that under Section 20-7-473, the burden of proving that property acquired during the marriage was a gift to one of the parties is upon the party asserting a gift of property; that party has the burden of proving the exception, i.e., a gift of property.

In the case on hand, the wife offensively, during her case in chief, offered evidence, including extensive documentary evidence, to prove that the property claimed by the husband to be a gift was in fact purchased by the parties; this placed upon the husband not only the burden of proof, but also the burden of persuasion. Martin v. Southern Railway Co., 240 S.C. 460, 126 S.E.2d 365 (1962); Fleming, Burdens of Proof, 47 Va.L.Rev. 275 (1961); Randall, Evidence, 16 S.C.L.R. 197, 203 et seq. (1963); Whaley, Handbook on South Carolina Evidence, 9 S.C.L.Q. Supp. (1957) at 155; 9 Wigmore, Evidence Sections 2485-2487 (Chadbourn rev. 1981); 29 Am.Jur.2d Evidence Section 123 (1967).

The husband acquired a deed from his mother conveying to him 48.45 acres. The parties built a house on the property. The appealed order held that the home and five acres of land on which it sits was part of the marital estate; the appealed order also held that the remaining 43.45 acres were not part of the marital estate by reason of their having been acquired by the husband by gift from his mother. Whether this 43.45 acre tract of land was, in fact, purchased by the parties is a major inquiry of this case.

It is undisputed that until about a year before the institution of this divorce, the wife gave her income to the husband or deposited her check in their joint banking account. The wife testified that she and the husband also had savings accounts.

The husband is an only child; the parties lived with the husband's mother for several years. The husband managed the affairs of his mother and at the time of the divorce, was paying from his personal funds $400 per month to a nursing home for her benefit. For 1980, 1981, 1982, and 1983 the joint tax returns of the parties reflect that the husband and wife furnished more than one-half of the support of the husband's mother; they claimed her as a double exemption on the tax returns.

The wife testified that before the parties were married, the husband took her to view the 48.45-acre tract of land; the husband then told the wife that his mother owned an interest in the land as a cotenant and that he planned to purchase the tract.

The wife then testified that she and her husband planned to purchase the 48.45-acre tract, which was to be sold at a judicial auction and that in order to purchase the tract, the proceeds of the sale belonging to the husband's mother would be made available to the parties; the plan, according to the wife's testimony, was to repay the husband's mother by monthly payments and by giving her the income tax refunds of the parties.

After describing the parties' plan, the wife introduced a judicial deed to the husband's mother of the 48.45 acres; this deed reflects that the property was struck down to the husband's mother at a judicial sale on January 5, 1976; the Master's deed to the husband's mother was dated March 2, 1976.

From the record we conclude that the actual sales price of the property, after credit for a forfeited bid, was $24,500.00 and that the husband's mother's interest in the sales proceeds was $11,745.68; there remained owing on the bid $12,754.32.

The wife then introduced checks payable to the husband totaling $12,621.07. Two of these checks dated January 27, 1976, amounting to $2,571.00, were from the South Carolina Teacher's Credit Union and, according to the wife's testimony, were loans made by the Credit Union to her. Three of the checks, dated ...