Thornton v. Thornton, Appellate Case No. 2016-001177

CourtCourt of Appeals of South Carolina
Writing for the CourtWILLIAMS, J.
Citation836 S.E.2d 351,428 S.C. 460
Parties Michael P. THORNTON, Respondent, v. Anita L. THORNTON, Appellant.
Docket NumberOpinion No. 5688,Appellate Case No. 2016-001177
Decision Date23 October 2019

428 S.C. 460
836 S.E.2d 351

Michael P. THORNTON, Respondent,
v.
Anita L. THORNTON, Appellant.

Appellate Case No. 2016-001177
Opinion No. 5688

Court of Appeals of South Carolina.

Heard October 1, 2018
Filed October 23, 2019


Megan Catherine Hunt Dell, of Dell Family Law, P.C., of Charleston; and Theresa Marie Wozniak Jenkins, of Theresa Wozniak Jenkins, Attorney at Law, LLC, of Charleston, both for Appellant.

Michael P. Thornton, of Ridgeville, pro se.

WILLIAMS, J.:

836 S.E.2d 355
428 S.C. 467

In this domestic relations matter, Anita L. Thornton (Wife) appeals the family court's final divorce decree, arguing the family court erred in (1) identifying, valuing, and apportioning marital assets and debts; (2) miscalculating Wife's child support obligation; (3) awarding primary custody of the parties' two children to Michael P. Thornton (Husband); (4) failing to find Wife prejudiced by a "structural" error related to a hearing on her petition to enforce visitation; (5) relying too heavily on the guardian ad litem's (GAL) conclusions; (6) relying on the forensic consultant, Dr. Marc Harari's conclusions, which were based on information provided by the GAL; (7) granting Husband a divorce on the ground of adultery; (8) failing to find a conflict of interest regarding a personal relationship between Husband and an employee of the Dorchester County Clerk of Court; and (9) requiring the parties to pay their own attorney's fees, requiring Wife to pay a greater percentage of the GAL's fees and Dr. Harari's fees, and requiring Wife to pay the private investigator's fees. We affirm as modified.1

FACTS/PROCEDURAL HISTORY

Husband and Wife married on November 16, 1996. The parties have two emancipated children. In 2011, Husband introduced Wife to his co-worker, Charles Stringfellow (Stringfellow). Stringfellow and his son spent significant time with Husband, Wife, and the parties' children. Wife indicated Husband encouraged her relationship with Stringfellow. Wife

428 S.C. 468

and Stringfellow began to spend time alone together, and Wife talked with Stringfellow about the problems she and Husband had in their relationship. In April or May 2012, Husband became suspicious of Wife's activities after he witnessed Wife consistently coming home late at night and discovered phone calls and text messages between Wife and Stringfellow. When Husband confronted Wife, she denied engaging in an extramarital affair. Husband hired Steven Russell, a private investigator, to follow Wife and document her activities because Husband believed Stringfellow was Wife's paramour. Russell observed Wife and Stringfellow at Stringfellow's apartment on a number of occasions.

In August 2012, Husband filed for divorce on the ground of adultery. That action was administratively dismissed, and Husband filed a new complaint on January 9, 2014, again seeking a fault-based divorce on the ground of adultery. Wife answered and counterclaimed against Husband, seeking a divorce on the ground of one year's continuous separation.

The family court held an eight-day final merits hearing over the course of three months and subsequently issued a final order and decree of divorce (the Final Order), granting Husband a divorce on the ground of Wife's adultery. The Final Order awarded joint custody of the minor children to the parties with Husband as the primary legal and physical custodian. The Final Order required Wife to pay sixty-seven percent of the GAL's fees2 and sixty-seven percent of Dr. Harari's fees.3 Wife was also required to reimburse Husband $3,770 for his private investigator's fees. Each party was responsible for his or her own attorney's fees.

As to equitable distribution, the Final Order found Wife was entitled to one-half of the value of Husband's 401K Account (the 401K Account) as of May 12, 2014 ($56,040.69), which amounted to $28,020.35. The Final Order also required each party to pay one-half of a $27,100 debt owed to the 401K Account (the Loan), so the family court reduced Wife's portion of the 401K Account and awarded Wife $14,470 from the 401K

428 S.C. 469

Account. The Final Order subsequently required Wife to pay one-half of the $12,254.95 remaining balance of the Loan (the Remaining Loan Balance). Each party was ordered to pay one-half of the outstanding debt owed to Verizon Wireless (the Verizon Debt). Wife was awarded one-half of Husband's pension

836 S.E.2d 356

plan (the Pension Plan) upon its vesting on June 8, 2016 ($72,034.08), which amounted to $36,017.04. The Final Order required Husband to pay Wife $6,623.95 for her equity in a Jayco Hornet Camper (the Camper). With regards to the former marital home (the Home), both parties requested and the family court ordered Husband to remove Wife's name from the mortgage, refinance the Home within ninety days, and pay Wife one-half of the equity. Wife filed a Rule 59(e), SCRCP, motion seeking reconsideration, which the family court denied. This appeal followed.

ISSUES ON APPEAL

I. Did the family court err in identifying, valuing, and apportioning marital assets and debts?

II. Did the family court err in granting a divorce to Husband on the ground of adultery?

III. Did the family court err in requiring the parties to pay their own attorney's fees, requiring Wife to bear a greater portion of the fees incurred by the GAL and Dr. Harari, and requiring Wife to reimburse Husband for the private investigator's fees?

STANDARD OF REVIEW

The appellate court reviews decisions of the family court de novo. Stoney v. Stoney , 422 S.C. 593, 596, 813 S.E.2d 486, 487 (2018) (per curiam). In a de novo review, the appellate court is free to make its own findings of fact but must remember the family court was in a better position to make credibility determinations. Lewis v. Lewis , 392 S.C. 381, 385, 709 S.E.2d 650, 651–52 (2011). "Consistent with this de novo review, the appellant retains the burden to show that the family court's findings are not supported by a preponderance of the evidence; otherwise, the findings will be affirmed." Ashburn v. Rogers , 420 S.C. 411, 416, 803 S.E.2d 469, 471 (Ct. App. 2017). On the other hand, evidentiary and procedural

428 S.C. 470

rulings of the family court are reviewed for an abuse of discretion. Stoney , 422 S.C. at 594 n.2, 813 S.E.2d at 486 n.2.

LAW/ANALYSIS

I. Equitable Distribution

Wife argues the family court erred in the equitable division of the Loan, the 401K Account, the Camper, the Pension Plan, the Verizon Debt, and the Home.

"In reviewing a division of marital property, an appellate court looks to the overall fairness of the apportionment." Brown v. Brown , 412 S.C. 225, 235, 771 S.E.2d 649, 655 (Ct. App. 2015). "Even if the family court commits error in distributing marital property, that error will be deemed harmless if the overall distribution is fair." Doe v. Doe , 370 S.C. 206, 213–14, 634 S.E.2d 51, 55 (Ct. App. 2006).

A. The Loan

Wife argues the family court erred in (1) finding the Loan was a marital debt and (2) equitably apportioning the Loan. We affirm the family court's finding that the Loan was a marital debt and the apportionment of the 401K Account, but we modify the family court's apportionment of the Loan.

1. The Loan as Marital Property

"For purposes of equitable distribution, a ‘marital debt’ is a debt incurred for the joint benefit of the parties regardless of whether the parties are legally liable or whether one party is individually liable." Wooten v. Wooten , 364 S.C. 532, 546, 615 S.E.2d 98, 105 (2005). Subsection 20-3-620(B)(13) of the South Carolina Code (2014) requires the family court to consider "existing debts incurred by the parties or either of them during the course of the marriage" when equitably apportioning the parties' marital property. Subsection 20-3-620(B)(13) "creates a rebuttable presumption that a debt of either spouse incurred prior to the beginning of marital litigation is a marital debt and must be factored in the totality of equitable apportionment." Pruitt v. Pruitt , 389 S.C. 250, 264, 697 S.E.2d 702, 710 (Ct. App. 2010). "Therefore, when a debt is proven to have accrued before the commencement of marital litigation, the burden 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 did not tell Wife about the Loan. Husband presented undisputed testimony that he used the Loan funds to pay various marital bills and to repay loans from his parents that were...

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3 practice notes
  • Funderburk v. Funderburk, 2018-001173
    • United States
    • Court of Appeals of South Carolina
    • December 8, 2021
    ...reviewing a division of marital property, an appellate court looks to the overall fairness of the apportionment." Thornton v. Thornton, 428 S.C. 460, 470, 836 S.E.2d 351, 356 (Ct. App. 2019) (quoting Brown v. Brown, 412 S.C. 225, 235, 771 S.E.2d 649, 655 (Ct. App. 2015)). "Fault is a factor......
  • Askins-Weaver v. Weaver, 2020-UP-124
    • United States
    • Court of Appeals of South Carolina
    • May 6, 2020
    ...unnecessary fees and costs, including fees and costs to hire an expert in military retirement and benefits. Cf. Thornton v. Thornton, 428 S.C. 460, 481, 836 S.E.2d 351, 362 (Ct. App. 2019) (affirming the family court's award for reasonable expert fees that were necessary to obtain a benefic......
  • Askins-Weaver v. Weaver, Appellate Case No. 2017-002511
    • United States
    • Court of Appeals of South Carolina
    • May 6, 2020
    ...unnecessary fees and costs, including fees and costs to hire an expert in military retirement and benefits. Cf. Thornton v. Thornton, 428 S.C. 460, 481, 836 S.E.2d 351, 362 (Ct. App. 2019) (affirming the family court's award for reasonable expert fees that were necessary to obtain a benefic......
3 cases
  • Funderburk v. Funderburk, 2018-001173
    • United States
    • Court of Appeals of South Carolina
    • December 8, 2021
    ...reviewing a division of marital property, an appellate court looks to the overall fairness of the apportionment." Thornton v. Thornton, 428 S.C. 460, 470, 836 S.E.2d 351, 356 (Ct. App. 2019) (quoting Brown v. Brown, 412 S.C. 225, 235, 771 S.E.2d 649, 655 (Ct. App. 2015)). "Fault is a factor......
  • Askins-Weaver v. Weaver, 2020-UP-124
    • United States
    • Court of Appeals of South Carolina
    • May 6, 2020
    ...unnecessary fees and costs, including fees and costs to hire an expert in military retirement and benefits. Cf. Thornton v. Thornton, 428 S.C. 460, 481, 836 S.E.2d 351, 362 (Ct. App. 2019) (affirming the family court's award for reasonable expert fees that were necessary to obtain a benefic......
  • Askins-Weaver v. Weaver, Appellate Case No. 2017-002511
    • United States
    • Court of Appeals of South Carolina
    • May 6, 2020
    ...unnecessary fees and costs, including fees and costs to hire an expert in military retirement and benefits. Cf. Thornton v. Thornton, 428 S.C. 460, 481, 836 S.E.2d 351, 362 (Ct. App. 2019) (affirming the family court's award for reasonable expert fees that were necessary to obtain a benefic......

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