Shufelt v. Shufelt, 2018-UP-260

• Court: Court of Appeals of South Carolina
• Writing for the Court: PER CURIAM:
• Parties: Kenneth M. Shufelt, Appellant, v. Janet R. Shufelt, Respondent. Appellate Case No. 2015-002426
• Docket Number: 2018-UP-260
• Decision Date: 13 June 2018

Kenneth M. Shufelt, Appellant,
v.
Janet R. Shufelt, Respondent.

Appellate Case No. 2015-002426

No. 2018-UP-260

Court of Appeals of South Carolina

June 13, 2018

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

Submitted March 1, 2018

Appeal From Lexington County Peter R. Nuessle, Family Court Judge

John E. Cheatham, of Law Offices of John E. Cheatham, of Lexington, for Appellant.

Katherine Carruth Goode, of Winnsboro, for Respondent.

PER CURIAM:

In 2013, Kenneth Shufelt (Husband) filed for divorce from Janet Shufelt (Wife) after eight years of marriage. The family court granted Husband a divorce on the ground of one year continuous separation and divided the marital estate equally between the parties. The family court also awarded Wife $500 per month in permanent periodic alimony and attorney's fees. Husband appeals, arguing the family court erred by (1) failing to state in the Final Order and Decree of Divorce (Decree) that reconciliation was attempted but unavailing; (2) failing to make findings of fact and conclusions of law as required by Rule 26(A), SCRFC; (3) including nonmarital property in and improperly dividing the marital estate; (4) awarding alimony without making sufficient findings of fact and conclusions of law; and (5) awarding attorney's fees to Wife. We reverse and remand.

I.

We review family court matters de novo and may find our own facts based on our view of the greater weight of the evidence. Stoney v. Stoney, Op. No. 27758 (S.C. Sup. Ct. refiled Apr. 18, 2018) (Shearouse Adv. Sh. No. 16 at 11). However, we recognize the family court was in a superior position to assess witness credibility, and appellant must still prove error. Id.

II.

Husband first argues the family court erred by finding all three of his retirement accounts were marital property. We agree.

"[T]he family court is tasked with identifying, valuing, and apportioning the marital estate." Moore v. Moore, 414 S.C. 490, 508, 779 S.E.2d 533, 542 (2015). Marital property includes "all real and personal property which has been acquired by the parties during the marriage and which is owned as of the date of filing or commencement of marital litigation as provided in Section 20-3-620 regardless of how legal title is held . . . ." S.C. Code Ann. § 20-3-630(A) (2014). "Property acquired prior to the marriage is generally nonmarital property and not subject to equitable division." McMillan v. McMillan, 417 S.C. 583, 591, 790 S.E.2d 216, 220 (Ct. App. 2016). "A party claiming an equitable interest in property upon divorce bears the burden of proving the property is marital." Wilburn v. Wilburn, 403 S.C. 372, 382, 743 S.E.2d 734, 740 (2013). "If the party presents evidence to show the property is marital, the burden shifts to the other spouse to present evidence to establish the property's nonmarital character." Id.

Husband had retirement funds held by Franklin Templeton, as well as a 401K held by T. Rowe Price. He testified without contradiction that the premarital value of one of the Franklin Templeton accounts was $61, 000, and introduced without objection a December 31, 2005 account statement corroborating this approximate premarital balance. We therefore reverse the order of the family court finding this portion marital property. See McMillan, 417 S.C. at 591, 790 S.E.2d at 220.

As to the T. Rowe Price 401K, Husband testified-again without contradiction- that a portion of these funds was nonmartial. He could not, however, provide a precise amount. The sole evidence as to the history of the account was Husband's testimony he had owned the account for eighteen years, and for eight of those years the parties were married. The value of the account as of the February 2013 filing date was unclear, but Husband submitted a March 31, 2014 account summary reflecting a $270, 915.38 balance, and testified to a $304, 000.00 balance at...