Tinsley v. Tinsley

• Decision Date: 11 September 1996
• Docket Number: No. 2637,No. 96-UP-437,2637,96-UP-437
• Citation: 483 S.E.2d 198,326 S.C. 374
• Court: South Carolina Court of Appeals
• Parties: Judith Belle C. TINSLEY, Respondent-Appellant, v. Joe Ray TINSLEY, Appellant-Respondent. . Formerly Unpublished OpinionHeard

Page 198

483 S.E.2d 198

326 S.C. 374

Judith Belle C. TINSLEY, Respondent-Appellant, v. Joe Ray TINSLEY, Appellant-Respondent.

No. 2637.

Court of Appeals of South Carolina.

Formerly Unpublished Opinion No. 96-UP-437.

Heard Sept. 11, 1996.

Decided Feb. 21, 1997.

Richard H. Rhodes, Spartanburg, for appellant-respondent.

James C. Cothran and Ginger D. Goforth, Spartanburg, for respondent-appellant.

STILWELL, Judge:

In this domestic case, the family court granted Joe Ray Tinsley ("Husband") a divorce based upon one year's separation, awarded custody of the minor child to Judith Belle C. Tinsley ("Wife"), established child support and visitation, and equitably divided the marital property and debts. Upon Wife's motion to reconsider, the court substantially modified the equitable distribution order. Both parties appeal. We affirm in part, reverse in part, and remand.

FACTS

The parties were married in September of 1970 and separated in August of 1993. They have one child, a son, born in 1982. At the time of the hearing in 1995, Wife was fifty-three years old and in good health. She was employed at the Village Partnership as a family facilitator with an annual salary of $20,100. She testified she had been employed full time during the marriage except for six months. She asserted she was the primary caretaker for the child and did all the housework and yardwork.

Wife testified her husband was physically abusive to her during the marriage. Specifically, she testified he would lock her in the bedroom and beat her, once even breaking her nose. She introduced pictures taken in December of 1992 to show bruises allegedly inflicted by her husband. She also introduced a calendar on which she had noted the dates on which her husband slapped or beat her. On the night she left, her husband would not let her in the house and she felt threatened. When she returned the next day to get clothes for herself and the child, her husband was belligerent and ripped the windshield wiper off her car. She stayed with her husband as long as she did because she was a social worker and felt she should try to save her marriage. In August of 1993, however, she left her husband, she testified, as a result of his abuse.

Husband was forty-eight years old at the time of the hearing. He had been declared disabled in 1990 due to clinical depression. He takes medication for depression, blood pressure, and diabetes. Husband's monthly income as shown on his financial declaration filed with the court and utilized for purposes of determining the appropriate level of child support is $1505.45, consisting of $810.10 in Social Security Disability and $695.35 in State Employee Disability. ¹ Husband testified the parties had money problems in the marriage for which he primarily blamed his wife. With respect to the abuse allegations, Husband stated the problems began after their child was born and his wife would demand money from him. Their arguments would escalate and she would initiate the physical violence. On one occasion, Husband stated his wife threatened him with a kitchen knife. Wife denied these allegations.

At the end of the hearing, the family court questioned whether the parties were correctly categorizing Husband's "state disability retirement benefits" as income, as opposed to a marital asset with an assigned present value subject to equitable distribution. The court asked the parties to research the issue. In response, there was submitted, post-trial, an economist's evaluation of what the economist termed "[Husband's] disability annuity with the State...." The economist's evaluation stated it was based on the assumption the state plan was subject to equitable distribution. The parties apparently did not submit to the court any legal research concerning whether the item in question was correctly treated as income or an asset subject to equitable distribution.

In the final order, the court granted Husband a divorce from Wife based upon one year's separation. The court concluded Wife remained in the marriage for a long period of time despite the abuse, and on the night she left there were no acts of physical cruelty. Wife was awarded custody of the child by consent with specified visitation. Due to his father's disability, the child receives $416 per month, a sum larger than the father would owe in child support according to child support guidelines. Based upon the parties' agreement, the court ordered $98 per month to be placed in a savings account in both parties' names for the child's future educational expenses. This amount represents the difference between payments the child receives directly and Husband's obligation pursuant to the guidelines.

With respect to equitable distribution of marital property, the court concluded Husband's state disability retirement benefit was not income, but rather a marital asset subject to equitable distribution. The court stated, "[I]t is certainly not excluded under the statute, and further it is rather difficult for the Court to understand or imagine that a marital asset worth thousands of dollars could suddenly be converted to just income by the owner declaring retirement status." However, the court awarded this item in its entirety to Husband in its equitable distribution plan. In addition to the disability plan, the court awarded Husband property consisting of the equity in the marital home, cemetery lots, jewelry, and personal property valued at $59,376, for a total of $212,376. ² Husband was also allocated marital debt of $10,419 and ordered to assume the two mortgages on the house.

Wife was awarded marital property valued at $122,639. This property included various retirement and 401(k) plans from her employment as well as jewelry and personal property. Marital debt of $12,703 was also allocated to her. On Wife's motion to reconsider, the court awarded her twenty-five percent of Husband's disability retirement and ordered her attorney to prepare a Qualified Domestic Relations Order. No adjustment was made in the award of child support.

No alimony or attorney fees were awarded to either party although Husband filed a motion after the final hearing but prior to the written order seeking to amend his answer to seek alimony. He argued that if the court concluded his state disability retirement was a marital asset instead of income, then his monthly income would be reduced by $695.35. Although the court in its written order held the disability retirement was a marital asset, the order did not address Husband's motion to amend his answer. At the reconsideration hearing, the court ruled it could not address the motion to amend because "it was incumbent on [Husband] when [he] got the [written] order that [he] had to bring a Rule 59(e) or 60-something motion to get me to make that ruling; that wasn't done."

SCOPE OF REVIEW

In appeals from the family court, we have jurisdiction to find the facts in accordance with our own view of the preponderance of the evidence. This broad scope of review, however, does not require us to disregard the findings of the lower 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).

WIFE'S APPEAL

Wife argues the family court erred in granting Husband a divorce on the ground of one year's separation rather than granting Wife a divorce on the ground of physical cruelty. She also argues the family court erred in denying her an award of attorney fees...