Thompson v. Brunson, 0282

Citation283 S.C. 221,321 S.E.2d 622
Decision Date18 June 1984
Docket NumberNo. 0282,0282
CourtCourt of Appeals of South Carolina
PartiesErnestine THOMPSON, Appellant, v. Matthew BRUNSON, Respondent. . Heard

Kenneth M. Suggs, of Ken Suggs-Mike Kelly, Lawyers, PA., Columbia, for appellant.

Jens A. Feck, Georgetown, for respondent.

CURETON, Judge:

The appellant, Ernestine Thompson (mother), appeals from the order of the family court that awarded the respondent, Matthew Brunson (father), exclusive use of the parties' former marital residence and denied the mother's request for custody of the parties' two children in the father's custody. We affirm in part and remand in part.

The parties were divorced in 1978 at which time the mother was awarded custody of the parties' three children. In September, 1978, the father was awarded custody of the two youngest children and they have remained in his custody since that time. The divorce decree made no disposition of the marital home. The father has lived in the marital residence since the divorce.

In April, 1980, the mother sought custody of the two children. Her petition was dismissed with consent of the father, however, about a month later. In November, 1980, the mother filed her complaint in circuit court seeking partition of the marital home. Thereafter, in April, 1981, the father filed suit in the family court seeking "full and proper title" to the property. The mother demurred to the father's petition asserting that the family court had no jurisdiction because of the pending partition suit. The family court overruled the demurrer and concluded it had continuing jurisdiction flowing from the divorce decree.

The father was permitted, without objection, to amend his petition to pray for possession and use of the residence instead of title to it. The mother then counterclaimed requesting custody of the two children, reasonable support for them, an equitable division of the real and personal property of the marriage, attorney's fees and enforcement of a prior order of support for the minor child in the mother's custody.

The trial court permitted the father to retain custody of the children in his care and awarded him exclusive use of the marital residence until the youngest child reached age eighteen. The mother appeals and urges us to reverse the trial court because it (1) did not have subject-matter jurisdiction to award exclusive use of the marital residence; (2) abused its discretion in not awarding custody of the two children to her; and (3) should not have awarded the father the exclusive use of the marital home as an incident of child support since the pleadings do not request such relief.

I.

We discuss the jurisdiction question and the issue regarding the authority of the trial court to award the father the exclusive use of the marital home, concurrently. The validity of the mother's assertion that the trial court did not have subject-matter jurisdiction to award exclusive use of the marital home to the father necessarily revolves around a determination of whether the amended petition prays for the exclusive use of the residence as an incident of child support rather than as an incident of ownership.

The father's initial petition prays for "full title" to the residence. Clearly, the family court had no jurisdiction to award the father full title to the residence after the wife had filed her partition action in circuit court. 1 McDonald v. McDonald, 276 S.C. 573, 281 S.E.2d 109 (1981). The father's amended petition is captioned, "A Petition for Modification of Support Order." The petition alleges, inter alia, that the possession of the residence is needed for the proper support and maintenance of the minor children. Additionally, it alleges that circumstances have changed so as to entitle the father to possession and use of the property. We hold that the obvious intent of the amended petition was to seek the use and possession of the marital residence as an incident of child support.

The family court has continuing jurisdiction to enter orders relating to the support of the children. Section 20-3-160, Code of Laws of South Carolina, 1976; Porter v. Porter, 246 S.C. 332, 143 S.E.2d 619 (1965). A spouse may, under certain circumstances, be granted the exclusive use of the marital home as an incident of support. Section 20-7-420(15), Code of Laws of South Carolina, 1976 (Supp.1983); Whitfield v. Hanks, 278 S.C. 165, 293 S.E.2d 314 (1982); Taylor v. Taylor, 271 S.C. 488, 248 S.E.2d 315 (1978); Smith v. Smith, 280 S.C. 257, 312 S.E.2d 560 (S.C.App.1984); Jones v. Jones, 281 S.C. 96, 314 S.E.2d 33 (S.C.App.1984).

While the law is settled that a family court may award the exclusive use of the marital home as an incident of support, the question here presented is whether the court may make such an award after an action for partition has been commenced in the circuit court.

Ordinarily, partition is compellable among co-tenants as a matter of right [See, Section 15-61-10, Code of Laws of South Carolina, 1976; Atkinson v. Jackson, 24 S.C. 594 (1885) ], and is "not suspended by an interest in or a right to use the property." Hunt v. Meeker County Abstract & Loan Co., 128 Minn. 207, 150 N.W. 798 (1915), reh'g denied, 130 Minn. 530, 152 N.W. 866 (1915); 68 C.J.S. Partition Section 21 (1950). The family court could not therefore issue an order that would thwart the right of the circuit court to partition the residence. However, we need not dwell on that issue. A careful reading of the trial judge's order shows he simply awarded the father the use of the residence until an order in partition was entered. His order provided:

In ruling in this matter, the Court is not unmindful of the unique procedural posture of this case. There remains pending before the Circuit Court an action for partition of the very property at issue in this litigation. While this Court would not presume to dictate to a fellow member of the Judiciary how to rule on that matter, it remains the responsibility of this Court to issue an Order fashioning a remedy which protects the best interests of the children in this case. Rather than offend my judicial brethren by attempting to mandate any action in the Circuit Court, I instead find that should the Respondent be permitted to proceed in her partition action and receive any financial gain therefrom, she shall be and is required to deposit all value received therefrom with the Clerk of Court .... 2

Although we have determined that the Court had jurisdiction to award exclusive use of the home to the father as an incident of child support, the question remains whether the court abused its discretion in doing so. The legal principles upon which we review the trial court's actions are settled. First, the form and amount of a parent's support obligation is based upon the needs of the child and the ability of the parent to pay. Graham v. Graham, 253 S.C. 486, 171 S.E.2d 704 (1970). Second, the family court must consider the parent's necessities and living expenses in fixing the amount of support. Id. at 491, 171 S.E.2d 704.

Additionally, we have held in several recent decisions that the court should exercise caution in awarding one spouse exclusive use of the marital residence as an incident of support to insure that the other spouse is not unreasonably deprived of his interest in the jointly-owned property. Smith v. Smith, supra; Shealy v. Shealy, 280 S.C. 494, 313 S.E.2d 48 (S.C.App.1984); Jones v. Jones, supra; Tucker v. Tucker, 317 S.E.2d 764 (S.C.App.1984). A jointly-owned marital residence is spousal property to which both spouses are entitled upon disolution of the marriage. While the children of the marriage have an enforceable right to support, they have no legally protectible interest in the marital residence. For these reasons, unless compelling reasons dictate otherwise, the family court should order support in the form of a monetary award.

Our decisions establish several considerations which may be compelling reasons for an award of exclusive possession: (1) the awardee's ability to acquire other suitable shelter for the minor children is in question; (2) the occupying spouse has a special need for the house because of a handicap or other infirmity; (3) the non-occupying spouse's equity in the home is relatively small compared to the spouse's other assets or income; (4) the non-occupying spouse's equity will not be tied up for an unreasonable period; and (5) the other support awarded does not adequately provide for the needs of the dependent...

To continue reading

Request your trial
19 cases
  • Divine v. Robbins
    • United States
    • South Carolina Court of Appeals
    • July 28, 2009
    ...did not err in assessing the probative value of Dr. Saylor's testimony in its custody determination. See Thompson v. Brunson, 283 S.C. 221, 228, 321 S.E.2d 622, 626 (Ct.App.1984) (finding the family court was in the best position to assess the veracity of the testimony of III. Evidentiary R......
  • Nasser-Moghaddassi v. Moghaddassi
    • United States
    • South Carolina Supreme Court
    • January 31, 2005
    ...disposition to be made of the marital home." Id. (citing Tucker v. Tucker, 282 S.C. 261, 317 S.E.2d 764 (1984); Thompson v. Brunson, 283 S.C. 221, 321 S.E.2d 622 (Ct.App.1984); Shafer v. Shafer, 283 S.C. 205, 320 S.E.2d 730 (Ct.App.1984); Jones v. Jones, 281 S.C. 96, 314 S.E.2d 33 (Ct.App.1......
  • Fesmire v. Digh
    • United States
    • South Carolina Court of Appeals
    • May 20, 2009
    ...co-tenants as a matter of right ... and is not suspended by an interest in or a right to use the property." Thompson v. Brunson, 283 S.C. 221, 225, 321 S.E.2d 622, 624 (Ct.App.1984) (internal citations & quotations Here, the Fesmires did not clearly establish the specific terms of their all......
  • Gay v. Gay
    • United States
    • South Carolina Court of Appeals
    • January 23, 2019
    ...equitable share in the marital home that he is entitled to receive under the family court's order. See Thompson v. Brunson, 283 S.C. 221, 226, 321 S.E.2d 622, 625 (Ct. App. 1984) ("A jointly-owned marital residence is spousal property to which both spouses are entitled upon dissolution of t......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT