Roof v. Roof, 22947
| Decision Date | 14 November 1988 |
| Docket Number | No. 22947,22947 |
| Citation | 298 S.C. 58,378 S.E.2d 251 |
| Court | South Carolina Supreme Court |
| Parties | Barbara Denise ROOF, Respondent, v. William Christopher ROOF, Jr., Appellant. . Heard |
Kellum W. Allen, of Kirkland, Taylor, Wilson, Moore, Allen & Deneen, P.A., West Columbia, for appellant.
Jean P. Derrick, of Rogers, Duncan, Fullwood & Derrick, Lexington, for respondent.
Barbara Denise Roof petitioned the Family Court for child custody, a legal separation and an award of separate support and maintenance from her husband, William Christopher Roof. Both parties sought equitable distribution of the marital estate. In addition, the wife sought support and insurance coverage for the minor child, a restraining order and attorney's fees. The husband also requested liberal visitation rights. The court granted the wife a legal separation, custody of the minor child, child support in the amount of $450.00 and exclusive possession of the marital residence during the minority of the parties' child. The husband was granted restricted visitation rights and the marital estate was distributed. Although separate maintenance and support was not awarded, the husband was ordered to pay one-half of the insurance, taxes and repair costs in excess of $50.00 for the marital residence. The husband appeals the grant of exclusive possession of the marital home to the wife, the restricted visitation rights and the equitable distribution.
The parties were married on June 30, 1983. They separated in February of 1987. One child, William Garrett Roof, was born of the marriage. At the time of the final decree, the child was nine months old. The child was born with a congenital condition known as Hirschsprung's disease. The child has undergone surgery in the past and will probably require surgery in the future. He has extraordinary medical expenses and will continue to be in need of special care in the future because of this condition.
The wife also has a child by a previous marriage. She receives child support from her former husband.
The husband is employed with the United Parcel Service. He earns approximately $33,000.00 a year.
The wife is employed with the Lexington County Hospital. She earns approximately $12,000 a year. In addition to working outside of the home off and on during the marriage, she also worked as a homemaker, performing almost all of the cooking and cleaning functions in the household throughout the marriage.
The lower court found that the husband subjected the wife to a pattern of repeated and brutal physical abuse. There was also a great amount of testimony concerning the husband's alcohol and/or drug use.
The husband argues that the trial court erred in awarding the wife exclusive possession of the marital home and requiring the husband to pay a portion of the insurance, taxes and repairs to maintain the home.
The trial court granted exclusive possession of the marital home to the wife "until the minor child graduates from high school or if, the child attends college and lives at home, then until the child completed his college education." At that time, the house would be sold. The husband would receive 60% and the wife would receive 40% of the sale proceeds.
In an action in equity, tried by the judge alone, without a reference, on appeal this court has jurisdiction to find facts in accordance with its views of the preponderance of the evidence. Townes Assoc. Ltd. v. City of Greenville, 266 S.C. 81, 221 S.E.2d 773 (1976). After reviewing the record, we conclude that the facts of this case support the award of sole possession of the marital residence to the wife rather than just exclusive possession until the child completes his education. The facts that support this award include the de minimis amount of equity in the house, the abusive conduct of the husband during the marriage and the inability of the wife to find comparable housing for herself and the minor child of the marriage.
The residence was purchased in 1985 for $65,925.00. The balance of the mortgage is $61,172.58. While the husband now claims that the value of the house is $70,000, he testified that the value was approximately $66,000 to $67,000. Based on the husband's testimony, the equity would be approximately $4,827.42 to $5,827.42 before real estate commissions and costs are deducted. Once these costs are deducted, the husband's portion of the equity would be at the most $500.00 to $1,000.00.
Marital misconduct may also be included as a factor in determining a proper award. Here, the record reveals and the trial judge found that the husband subjected the wife to a pattern of repeated and brutal physical abuse.
Finally, the Roof's baby requires special care because of his medical condition. The wife testified that the house is closely...
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Ingold v. Ingold, 1598
...addressed to the broad discretion of the trial court. Nash v. Byrd, 298 S.C. 530, 381 S.E.2d 913 (Ct.App.1989); cf. Roof v. Roof, 298 S.C. 58, 378 S.E.2d 251 (1989) (trial court did not abuse its discretion in placing limitations on father's visitation rights). In the absence of a clear abu......