Smith v. Smith

• Decision Date: 09 December 2009
• Docket Number: No. 4638.,4638.
• Citation: 386 S.C. 251,687 S.E.2d 720
• Parties: Emily B. SMITH, Appellant/Respondent, v. Jeffrey O. SMITH, Respondent/Appellant.
• Court: South Carolina Court of Appeals

687 S.E.2d 720

386 S.C. 251

Emily B. SMITH, Appellant/Respondent, v. Jeffrey O. SMITH, Respondent/Appellant.

No. 4638.

Court of Appeals of South Carolina.

Heard September 1, 2009.

Decided December 9, 2009.

Jan L. Warner and Matthew E. Steinmetz, both of Columbia, for Appellant/Respondent.

Thomas M. Neal III, Yulee E. Harrison, both of Columbia, and G. Murrell Smith, Jr., of Sumter, for Respondent/Appellant.

HEARN, C.J.

In this cross-appeal, Emily Smith (Mother) contends the family court erred by refusing to: (i) deviate from the child support guidelines and include the cost of the parties' daughter's private school tuition in calculating child support; (ii) require Jeffrey Smith (Father) to obtain life insurance as security for his alimony and child support obligations; (iii) consider the cost of Mother's medical insurance in awarding alimony; (iv) find the tobacco bonds and Sumter residence titled in Father's name were subject to equitable division; and (v) award her attorney's fees and costs. In his appeal, Father asserts the family court erred in failing to impute income to Mother and in setting the visitation schedule. We affirm in part, reverse in part, and remand.

FACTS

Mother and Father met and began dating when Father was stationed at Shaw Air Force Base in Sumter and married in 1990. During the next year, they moved into a house in Sumter, and Father, after completing his service obligation to the Air Force, accepted employment as a pilot with Delta Airlines. Meanwhile, Mother continued working as a schoolteacher in the Sumter County School System.

In 2001, Mother and Father adopted a daughter, Kate, who was fourteen-months-old at the time. After bringing Kate home in March 2001, they completed an application for Kate to attend a local private school, Wilson Hall, once she reached the appropriate age. In addition, the parties decided Mother would no longer teach in the public school system following the current school year. Instead, they agreed Mother would apply for a teaching position at Wilson Hall so she could spend more time at home with Kate. Mother was hired as a teacher at Wilson Hall for the following year.

During this time, Father's mother, Janie Carraway (Grandmother), lived in Royal Palm Beach, Florida with her husband. After her husband's death, Grandmother sought to purchase a home closer to her part-time job and the residence of her oldest daughter in Palm Beach Gardens, Florida. As she looked to purchase a new home, Father solicited the services of Darrell Lowder, an accountant and financial planner, for advice on how to protect Grandmother's assets from relatives and future nursing home expenses. Lowder advised Father that any new assets purchased by Grandmother should be titled in Father's name. Father followed Lowder's advice, and when Grandmother purchased a home in Palm Beach Gardens (Florida residence), it was titled in Father's name. Although Grandmother paid the down payment on the residence and $300 a month towards the mortgage payment, the remainder of the $721.40 monthly mortgage payment was paid from the parties' joint bank account. For the two years in which Grandmother lived in the Florida residence, Mother and Father paid a total of $9,635 in mortgage payments and an additional $5,500 for repairs on the Florida residence.

In October 2002, Grandmother's daughter suffered a stroke. With no family members able to watch over her in Florida, Grandmother and Father decided it was in her best interests to sell the Florida residence and purchase a home in Sumter. In November 2002, the Florida residence was sold for $138,500.¹ The proceeds from the sale were transferred to the parties' joint bank account. The following month, Grandmother purchased a home in Sumter for $110,000, titled in Father's name. Mother and Father paid $7,396 from their joint account for closing costs and other expenses associated with the Sumter residence. After these transactions were complete, Grandmother reimbursed Mother and Father for all expenses they had paid on her behalf: the mortgage payments on the Florida residence, repairs on the Florida residence, and closing costs and other expenses associated with the Sumter residence. Father accomplished this by deducting the unreimbursed expenses from the proceeds of the sale of the Florida residence, which remained in Mother and Father's joint account. Then, Father transferred the remaining proceeds from the sale of the Florida residence to a separate savings account for Grandmother. Thereafter, Father transferred $65,000 from Grandmother's savings account to the joint marital account so he could purchase tobacco bonds from Legg Mason for Grandmother. Ultimately, Father purchased $40,646 worth of tobacco bonds in his name for Grandmother and transferred the remaining $24,354 into Grandmother's savings account.

Although Mother and Father experienced some marital problems throughout the course of their marriage, they managed to resolve these issues, and their marriage remained intact. However, in September 2003, Father went to Hawaii on vacation without Mother and Kate to celebrate his brother-in-law's retirement from the fire department. Upon returning home to Sumter, the parties' marital troubles escalated, and they began attending counseling sessions. Unable to resolve their differences, Father moved in with Grandmother later that month. Ultimately, Mother discovered Father was having an extramarital affair with a flight attendant, Victoria Eckles. In addition, Mother learned Father had taken Victoria with him to Hawaii, and on a previous occasion, he had taken Kate to see a movie with Victoria.

In October 2003, Mother commenced this divorce action against Father on the grounds of adultery. Additionally, Mother sought custody of Kate, child support, alimony, equitable division of the marital estate, and attorney's fees. In his answer, Father admitted the adultery and agreed Mother should have primary physical custody of Kate. In February 2004, the Honorable George M. McFaddin, Jr. issued a Pendente Lite Order, granting Mother physical custody of Kate and ordering Father pay $1,338 per month in child support, $2,500 per month in temporary maintenance, and $12,500 in attorney's fees. Thereafter, a three-day trial ensued with the focal point of the litigation dedicated to discerning whether the tobacco bonds and Sumter residence, titled in Father's name, were marital property subject to equitable division. On January 28, 2005, the family court issued a decree of divorce to Mother on the grounds of adultery and reserved all other issues. On May 31, 2005, the family court issued a supplemental final order, resolving all issues except for attorney's fees. In its supplemental order, the court awarded Mother custody of Kate and granted Father weekend visitation, including one non-overnight visitation from 6:00-7:30 p.m. when he did not have weekend visitation the following weekend. Additionally, the court ordered Father to pay Mother $821 per month in child support and $1,650 per month in alimony. The court also found the tobacco bonds and Sumter residence were not marital property and not subject to equitable division. Both parties filed motions to reconsider, which were denied. The family court ultimately issued an order denying both parties' requests for attorney's fees. Both parties appeal.

STANDARD OF REVIEW

In an appeal from the family court, this court may correct errors of law and find facts in accordance with its own view of the preponderance of the evidence. Semken v. Semken, 379 S.C. 71, 75, 664 S.E.2d 493, 496 (Ct.App.2008). We are not, however, 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. Marquez v. Caudill, 376 S.C. 229, 239, 656 S.E.2d 737, 742 (2008).

LAW/ANALYSIS

I. MOTHER'S APPEAL

A. Private School Tuition

Mother contends the family court erred in refusing to deviate from the child support guidelines and include the cost of Kate's private school tuition in calculating child support. In its order, the family court refused to deviate from the child support guidelines, finding such relief was not requested in Mother's pleadings or at trial. On appeal, Mother argues the family court erred in failing to liberally construe her pleadings. She asserts her request for "such other relief as the court may deem fit and proper" in her complaint and her testimony about the cost of Kate's private school tuition was sufficient to place the issue before the family court. We agree.

Rule 12 of the Rules of Practice for the Family Courts of South Carolina governed the construction of pleadings in family court until it was repealed with the enactment of the South Carolina Rules of Family Court on September 1, 1988. See Ward v. Marturano, 302 S.C. 112, 115, 394 S.E.2d 16, 18 (Ct.App.1990) (stating former Rule 12 required pleadings to be liberally construed); Rule 2(d), SCRFC ("All Rules of Practice for the Courts of this State heretofore adopted are repealed as of the effective date of the South Carolina Rules of Family Court."). Currently, no family court rule governs the construction of pleadings. As a result, Rule 8(f), SCRCP applies. See Rule 81, SCRCP (stating The South Carolina Rules of Civil Procedure apply in family court when no family court rule provides otherwise). Rule 8(f) requires courts to construe pleadings so "as to do substantial justice to all parties." "To ensure substantial justice to the parties, the pleadings must be liberally construed." Gaskins v. S. Farm Bureau Cas. Ins. Co., 343 S.C. 666, 671, 541 S.E.2d 269, 271 (Ct. App.2000), aff'd as modified on other grounds, 354 S.C. 416, 581 S.E.2d 169 (2003).

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