Smith v. Smith

• Decision Date: 03 June 1997
• Docket Number: No. 2686,2686
• Citation: 486 S.E.2d 516,327 S.C. 448
• Parties: Janette T. SMITH, Respondent/Appellant, v. James Ray SMITH, Appellant/Respondent. . Heard
• Court: South Carolina Court of Appeals

Page 516

486 S.E.2d 516

327 S.C. 448

Janette T. SMITH, Respondent/Appellant, v. James Ray SMITH, Appellant/Respondent.

No. 2686.

Court of Appeals of South Carolina.

Heard June 3, 1997.

Decided June 16, 1997.

Rehearing Denied Aug. 28, 1997.

William N. Epps, Jr., of Epps, Nicholson & Stathakis, Anderson, for Appellant/Respondent.

M. Scott McElhannon, Anderson, Guardian ad Litem for Appellant/Respondent.

Adam Fisher, Jr., and Gwendolynn W. Barrett, The Fisher Law Firm, Greenville, for Respondent/Appellant.

ANDERSON, Judge.

The family court granted Janette T. Smith (Wife) a divorce from James Ray Smith (Husband) on the ground of adultery. Both parties appeal the provisions of the family court order which equitably distributed the marital property and awarded Wife alimony and attorney's fees. We affirm in part, reverse in part, and remand.

FACTS/PROCEDURAL BACKGROUND

The Smiths were married on December 22, 1962. They have three children, all of whom are over the age of 18. Wife has a G.E.D. and Husband graduated from high school. Wife is under medication for hypertension and takes estrogen for a hormonal imbalance. Husband has suffered from heart problems for several years. He was declared disabled by the Social Security Administration in 1994 due to his heart condition.

Wife cooked, cleaned, and took care of the children during the marriage; she also did much of the yard work. Husband initially worked for a construction business. Several years after they were married, Husband established a side business, Suzuki of Anderson, which eventually became his full-time occupation. After staying home to raise the parties' three children for approximately eight years, Wife worked part-time for Suzuki for fourteen years beginning in 1975. However, she never earned more than minimum wage. Husband paid most of the bills and earned approximately eight times Wife's salary during this period.

Wife observed a close relationship between Husband and his former employee, Linda Roach, throughout almost the entire marriage. Husband left Wife in 1989, and several weeks later Wife gave up her part-time position at Suzuki. Wife eventually found employment with the Anderson Area Medical Center, where she earned $7.46 an hour.

Wife filed this action for divorce on the ground of adultery in 1990. A pendente lite order issued in 1990 ordered Husband to pay Wife a lump sum of $2,000.00 in temporary financial assistance and $500.00 for attorney's fees. In 1992, the family court ordered Husband to pay Wife $5,000.00 "as an advance against the share of equitable distribution to which [Wife] would otherwise be entitled as a result of the final hearing." The judge stated he was making this award because, although several final hearings had been scheduled, they had been cancelled due to Husband's poor health. In 1993, another pendente lite order directed Husband to utilize several joint accounts, which contained a total of $4,367.00, to pay Wife $1,000.00 per month in temporary support and $500.00 in temporary attorney's fees.

A final hearing was held in June of 1995. At that time, Wife was 55 and Husband was 62. Husband was unable to attend due to his heart condition, but he was represented by legal counsel and a guardian ad litem. In a bifurcated proceeding, the family court judge issued Wife a decree of divorce on the ground of adultery by order dated July 26, 1995. Further, "due to the inordinate period of time which has passed from the commencement date of this marital litigation," the judge ordered Husband to make an immediate cash payment of $10,000.00 to Wife as a partial distribution of the marital assets. The judge stated he would "specifically take into account, and give appropriate credit for, this distribution of funds in any subsequent allocation of marital assets."

In a final order dated November 2, 1995, the family court judge awarded Husband 68% and Wife 32% of the marital assets in the equitable distribution of the parties' property. The judge found the marital estate was worth $772,393.00. The judge noted he was deducting the $10,000.00 advance from Wife's share of the distribution. Further, the judge ordered Husband to pay Wife permanent, periodic alimony of $550.00 per month; $17,000.00 in attorney's fees; and $4,505.00 in expert witness fees, as well as several other costs related to the proceeding. Husband was ordered to pay the costs for his guardian ad litem and his physician.

Upon motions for reconsideration filed by both parties, the judge revised one paragraph of the order to reflect that Husband had not attended the final hearing due to his medical condition. In addition, the judge amended the order to give Husband a credit of $500.00 towards attorney's fees that he had paid to Wife pursuant to a prior order. The judge denied reconsideration on all other matters. Husband and Wife have both appealed, challenging numerous issues related to the equitable distribution and to Wife's award of alimony and attorney's fees.

STANDARD OF REVIEW

In appeals from the family court, the Court of Appeals has the authority to find the facts in accordance with its own view of the preponderance of the evidence. Rutherford v. Rutherford, 307 S.C. 199, 414 S.E.2d 157 (1992); Owens v. Owens, 320 S.C. 543, 466 S.E.2d 373 (Ct.App.1996). This broad scope of review does not, however, require this court to disregard the findings of the family court. Stevenson v. Stevenson, 276 S.C. 475, 279 S.E.2d 616 (1981). Neither are we required to ignore the fact that the trial judge, who saw and heard the witnesses, was in a better position to evaluate their credibility and assign comparative weight to their testimony. Cherry v. Thomasson, 276 S.C. 524, 280 S.E.2d 541 (1981).

LAW/ANALYSIS

I. EQUITABLE APPORTIONMENT

Husband and Wife raise numerous issues regarding the judge's equitable distribution of the marital property as follows.

A. Valuation of Marital Home and Country Squire Apartments

Husband first contends the family court judge erred in valuing the marital home at $70,000.00. He states a 1991 appraisal by Ken Walker valued the residence at $90,000.00, and there is no evidence in the record to support the judge's finding that the home is worth only $70,000.00. Wife states she did not agree with Walker's appraisal because the home needed several repairs. Wife valued the marital home at $70,000.00 on her marital assets addendum, and she states this figure is very close to the tax value of $70,670.00 shown on the tax records submitted to the family court.

The judge noted in his order that he was valuing the home at $70,000.00 per Wife's evaluation. We find there was evidence in the record to support the judge's valuation of the marital home based on Wife's estimate, and we affirm the judge's finding. See South Carolina State Highway Dep't v. Wilson, 254 S.C. 360, 175 S.E.2d 391 (1970) (a landowner, who is familiar with the property and its value, is allowed to give his or her estimate as to the value of the land); Woodward v. Woodward, 294 S.C. 210, 363 S.E.2d 413 (Ct.App.1987) (the family court's valuation of property will be affirmed if it is within the range of the evidence); Smith v. Smith, 294 S.C. 194, 363 S.E.2d 404 (Ct.App.1987) (the family court may accept one party's valuations of marital property over those of the other party).

Secondly, Husband contends the family court judge erred in failing to use Walker's appraised value of $139,500.00 for the Country Squire Apartments, an investment property. Husband asserts he owns a one-third interest in the complex, which would be worth $46,500.00. Wife argues, as she testified at trial, that the apartments were worth $272,250.00 according to the tax records, less a lien which left the equity at $237,420.00; she further testified that Husband owned a one-third interest in the complex when this action was filed, but now owns a one-half interest, making his share worth over $118,000.00. The judge found the apartments were worth $209,623.00 according to a tax assessment, and Husband's one-third interest was worth $69,874.00.

Marital property consists of all property owned by the parties as of the date of filing of marital litigation. S.C.Code Ann. § 20-7-473 (Supp.1996); Panhorst v. Panhorst, 301 S.C. 100, 390 S.E.2d 376 (Ct.App.1990). We find no abuse of discretion in the judge's use of the tax value for the property, and the determination of Husband's value based on the one-third interest he had at the time this action was filed. See Roe v. Roe, 311 S.C. 471, 429 S.E.2d 830 (Ct.App.1993) (the family court is given broad discretion in valuing the marital property, and this court will affirm a finding as to value which is supported by the evidence).

B. Vehicles

In the final order, the family court judge found that Husband had personal possession of four vehicles (and determined their corresponding values) as follows: a 1989 Toyota Cressida ($25,000.00), a 1987 Ford F-350 ($7,900.00), a 1979 Chevrolet van ($1,000.00), and a GMC truck ($5,000.00), for a total value of $38,900.00.

Husband alleges the judge erred in finding these vehicles were Husband's personal property because the vehicles are owned by his corporation, Suzuki of Anderson, and they were included in the evaluation of the business. He asserts that Dr. Charles Alford, a financial expert who valued the Suzuki corporation, included the value of the vehicles in his valuation of the business and that they are shown on the corporation's depreciation schedule. Husband contends the judge essentially credited the vehicles to him twice, which was an abuse of discretion.

Wife notes her marital assets addendum shows four other vehicles that she included in the value of the Suzuki of Anderson business: a Nissan 380ZX, a van, a beige Dodge Dakota, and a 1992 white Dodge Dakota with a grey stripe. She states that she did not list a value for these vehicles and that she testified at the final hearing that these vehicles...