Schultze v. Schultze, No. 5115.

CourtCourt of Appeals of South Carolina
Writing for the CourtFEW
Citation403 S.C. 1,741 S.E.2d 593
PartiesCynthia Heather SCHULTZE, Appellant, v. John Robert SCHULTZE, Respondent. Appellate Case No. 2011–197293.
Decision Date17 April 2013
Docket NumberNo. 5115.

403 S.C. 1
741 S.E.2d 593

Cynthia Heather SCHULTZE, Appellant,
v.
John Robert SCHULTZE, Respondent.

Appellate Case No. 2011–197293.

No. 5115.

Court of Appeals of South Carolina.

Heard March 6, 2013.
Decided April 17, 2013.


[741 S.E.2d 595]


Thomas F. McDow and Erin K. Urquhart, Law Office of Thomas F. McDow, of Rock Hill, for Appellant.

Tony M. Jones and Barrett W. Martin, Jones & Martin, of Rock Hill, for Respondent.


FEW, C.J.

[403 S.C. 4]Heather Schultze appeals the family court's decree of divorce that (1) equitably divided a portion of her retirement account to John Schultze, (2) equitably divided the parties' debts, and (3) awarded Heather $3,750 in attorney's fees. She argues the family court erred in apportioning both her retirement account and the parties' debts because those issues were not properly before the court. She also contends John presented insufficient evidence regarding both the amount and purpose of the debts. Finally, she argues if this court alters the decree of divorce in her favor, she is entitled to additional attorney's fees. We reverse the court's finding regarding Heather's retirement account, affirm the finding regarding marital debts, and remand the award of attorney's fees.

I. Facts and Procedural History

Heather commenced this action for divorce in 2008, seeking custody of the parties' children, child support, alimony, equitable apportionment of property, and attorney's fees. The family court held a temporary hearing, and both parties submitted affidavits. In his affidavit, John stated, “To the best of my knowledge, my wife and I have already divided all of our personal property, as we have been separated for over three years.”

The family court also held a pretrial conference and contemporaneously issued a form order that contained a list of issues to be addressed at trial. The issues listed on the pretrial order contained corresponding boxes for the court to check. Presumably, if the box next to an issue was checked, that issue was to be resolved at trial. According to the list, the issues for trial were limited to “divorce,” “custody uncontested,” “visitation uncontested,” “child support guidelines,” “equitable apportionment of real property,” and “other retroactive child support/alimony.” The order did not contain checks in the [403 S.C. 5]corresponding boxes for “equitable apportionment of personal property” or “marital debt.” Below that list within the same order, paragraph four was checked, which read, “The parties stipulate that all marital personal property has been divided to their mutual satisfaction.” However, paragraph five was checked, which provided,

Each party shall prepare a list of marital debts reflecting the balance as of, or as near to, the date of trial. These lists shall be exchanged between counsel. Upon the trial of the case, counsel should be prepared to present the Court with a stipulated balance of the marital debts.

In compliance with the court's pretrial order, both parties submitted pretrial briefs. Heather addressed the issue of personal property in her brief, stating,


The pretrial order checks paragraph four (a) stating that “the parties stipulate that all marital personal property has been divided to their mutual satisfaction.” This is consistent with [John's] affidavit.... The pretrial order specifically does not check paragraph four (b) stating “Within ____ days of this Order the parties shall exchange personal property lists reflecting a per-item value or auction date of all personal property, including retirement accounts.... This strongly suggests that

[741 S.E.2d 596]

the division of personal property included the retirement accounts of the parties.

(emphasis in original). In his pretrial brief, John represented, “The personal property has been agreed upon and divided between the parties.”


At trial, John introduced evidence of both parties' retirement accounts and debts. However, neither party specifically asked the court to consider the retirement accounts in the equitable apportionment of the marital property. As to the marital debts, Heather agreed on cross-examination that a “fifty/fifty division of [the marital debts] would be fair in this case.” 1

The family court's decree of divorce divided both Heather's retirement account and the marital debts. The court ordered [403 S.C. 6]Heather to pay John fifty percent of her retirement account—$21,463 plus any passive gains or losses—and twenty-five percent of the marital debts—$8,234. Finally, the court awarded Heather $3,750 in attorney's fees.

II. Personal Property

The first issue before this court is whether it was error to include Heather's retirement account in the equitable division of the marital estate. In her complaint, Heather sought equitable division of the marital property. Thus, the issue of equitable apportionment of personal property, which includes retirement accounts, was initially before the family court. SeeS.C.Code Ann. § 20–3–620(A) (Supp.2012) (providing the family court has the authority to equitably divide marital property “upon request by either party in the pleadings”); see also Jenkins v. Jenkins, 357 S.C. 354, 361, 592 S.E.2d 637, 641 (Ct.App.2004) (holding Wife's retirement account was marital property).

The parties agreed before trial, however, that the division of personal property was no longer an issue for the court to...

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18 practice notes
  • Jackson v. Jackson, Appellate Case No. 2016-001208
    • United States
    • Court of Appeals of South Carolina
    • December 9, 2020
    ...of the parties regardless of whether the parties are legally liable or whether one party is individually liable." Schultze v. Schultze , 403 S.C. 1, 8, 741 S.E.2d 593, 597 (Ct. App. 2013) (quoting Wooten v. Wooten , 364 S.C. 532, 546, 615 S.E.2d 98, 105 (2005) ). "There is a rebuttable pres......
  • Thornton v. Thornton, Appellate Case No. 2016-001177
    • United States
    • Court of Appeals of South Carolina
    • October 23, 2019
    ...of proving the debt is non-marital rests 428 S.C. 471 on the party who makes such an assertion." 836 S.E.2d 357 Schultze v. Schultze , 403 S.C. 1, 8, 741 S.E.2d 593, 597 (Ct. App. 2013).Husband testified that in May 2012 he obtained the Loan for $27,100 for marital purposes. He admitted he ......
  • State v. Bruce, Appellate Case No. 2013–001208.
    • United States
    • United States State Supreme Court of South Carolina
    • May 27, 2015
    ...it did not err in admitting the evidence, or the error was harmless, Bruce's conviction must be affirmed.Bruce, 402 S.C. at 627, 741 S.E.2d at 593. Both the State and Bruce petitioned for certiorari and the Court granted both petitions.1 412 S.C. 509ISSUE PRESENTEDDid the court of appeals e......
  • State v. Bruce, No. 5110.
    • United States
    • Court of Appeals of South Carolina
    • May 6, 2013
    ...doctrine, which is an exception to the exclusionary rule. State v. Jenkins, 398 S.C. 215, 227, 727 S.E.2d 761, 767 (Ct.App.2012). [741 S.E.2d 593]However, a trial court has no need to consider whether the exclusionary rule applies until it has first determined the police violated the defend......
  • Request a trial to view additional results
18 cases
  • Jackson v. Jackson, Appellate Case No. 2016-001208
    • United States
    • Court of Appeals of South Carolina
    • December 9, 2020
    ...of the parties regardless of whether the parties are legally liable or whether one party is individually liable." Schultze v. Schultze , 403 S.C. 1, 8, 741 S.E.2d 593, 597 (Ct. App. 2013) (quoting Wooten v. Wooten , 364 S.C. 532, 546, 615 S.E.2d 98, 105 (2005) ). "There is a rebuttable pres......
  • Thornton v. Thornton, Appellate Case No. 2016-001177
    • United States
    • Court of Appeals of South Carolina
    • October 23, 2019
    ...of proving the debt is non-marital rests 428 S.C. 471 on the party who makes such an assertion." 836 S.E.2d 357 Schultze v. Schultze , 403 S.C. 1, 8, 741 S.E.2d 593, 597 (Ct. App. 2013).Husband testified that in May 2012 he obtained the Loan for $27,100 for marital purposes. He admitted he ......
  • State v. Bruce, Appellate Case No. 2013–001208.
    • United States
    • United States State Supreme Court of South Carolina
    • May 27, 2015
    ...it did not err in admitting the evidence, or the error was harmless, Bruce's conviction must be affirmed.Bruce, 402 S.C. at 627, 741 S.E.2d at 593. Both the State and Bruce petitioned for certiorari and the Court granted both petitions.1 412 S.C. 509ISSUE PRESENTEDDid the court of appeals e......
  • State v. Bruce, No. 5110.
    • United States
    • Court of Appeals of South Carolina
    • May 6, 2013
    ...doctrine, which is an exception to the exclusionary rule. State v. Jenkins, 398 S.C. 215, 227, 727 S.E.2d 761, 767 (Ct.App.2012). [741 S.E.2d 593]However, a trial court has no need to consider whether the exclusionary rule applies until it has first determined the police violated the defend......
  • Request a trial to view additional results

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