Tucker v. Tucker
| Decision Date | 24 April 1984 |
| Docket Number | No. 0203,0203 |
| Court | South Carolina Court of Appeals |
| Parties | Betty A. TUCKER, Appellant, v. David E. TUCKER, Respondent. . Heard |
Ronald C. Dodson, of Kirkland, Aaron & Alley, of Columbia, for appellant.
Robert F. Buggel, of Columbia, for respondent.
This is an appeal from an order of the family court that granted appellant Betty A. Tucker a divorce on the ground of adultery, denied her alimony, divided the marital property, and awarded her attorney fees. The questions on appeal concern: (1) the failure by the trial court to divide the parties' personal property; (2) the trial court's failure to award the wife alimony; (3) the failure to award the wife exclusive use and possession of the marital home for a period in excess of three years; (4) the trial court's failure to consider the business assets of respondent David E. Tucker in equitably distributing the marital property; and (5) the award of $750 in attorney fees to the wife. We affirm the trial court's failure to award the wife alimony and the failure to grant the wife the exclusive possession of the marital home for more than three years; we reverse the trial court's equitable distribution of the marital home because of its failure to consider the business assets in making an equitable distribution of the marital property and remand the issue of equitable distribution as it relates to the business and marital home for redetermination; and we reverse the award of attorney fees as to their amount and remand the issue concerning their amount for redetermination.
The issue regarding the division of personal property (exclusive of husband's stock in National Security Company, Inc.), although raised, is no longer before us upon agreement of the parties. We, therefore, do not consider it.
The trial court found that the wife was not entitled to receive alimony "at the present time." The wife argues on appeal that the trial court, in denying her alimony, failed to give proper consideration to the duration of the marriage, the wife's contribution to the accumulation of their joint wealth, and the husband's marital misconduct.
While an award of alimony rests in the sound discretion of the trial court [ Lide v. Lide, 277 S.C. 155, 283 S.E.2d 832 (1981); Nienow v. Nienow, 268 S.C. 161, 232 S.E.2d 504 (1977) ], several different factors should be considered by the trial court in determining whether to award alimony. See, e.g., Burgess v. Burgess, 277 S.C. 283, 286 S.E.2d 142 (1982); Atkinson v. Atkinson, 279 S.C. 454, 309 S.E.2d 14 (S.C.App.1983). "No one factor should be considered dispositive" [ Lide v. Lide, 283 S.E.2d at 833]; and in no event, should alimony be used either to penalize or to reward a spouse. Beasley v. Beasley, 264 S.C. 611, 216 S.E.2d 535 (1975).
In denying the wife alimony, the trial court noted the parties' marriage was one of long duration, discussed the husband's misconduct, and acknowledged the importance of the wife's financial contributions to the acquisition of property. The trial court referred to other factors as well but placed the most emphasis upon the incomes of the parties.
Since 1956, the wife, who is in good health, has worked for Southern Bell where she earned, at the time of trial, in excess of $1200 monthly. In addition to her salary, the telephone company provided her with full medical and dental insurance coverage as well as various savings, pension, and retirement plans.
On the other hand, the husband, a former truck driver, earned a salary of $200 weekly as President of National Security Company, Inc., a corporation in which he owns 85% of the stock. As part of his employment, the company furnished him with an expense-free automobile and with a house. The husband also received a veteran's disability check of $51 monthly.
We cannot say that, in this instance, the trial court abused its discretion in failing to award the wife any alimony "at the present time," particularly since the trial court awarded the wife the exclusive use and possession of the marital home for a three-year period from the date of the divorce decree and the decree expressly preserved the wife's right to seek alimony in the future.
The trial court awarded the wife an undivided one-half equitable interest in the marital home and, as we noted, gave her the exclusive use and possession of the marital home for three years. The home is completely paid for and legal title is in the husband's name. During the period she is to have exclusive use and possession of the home, the wife is required to maintain the home in good repair and to pay the expenses of insurance and taxes. At the end of the three-year period, the home is to be appraised and its fair market value established. Each party will then have the opportunity to purchase the other's one-half interest.
The wife alone appeals the portion of the order that limits her exclusive possession to only three years. She maintains that she is entitled to the exclusive use and possession of the home either for the remainder of her life or until she remarries. In addition, the wife argues that to limit her possession to a three-year period during which she is required to maintain the home and to pay all taxes and insurance premiums due upon the house is unfair.
An award of possession of the marital home is an incident of support and not a division of property. Whitfield v. Hanks, 278 S.C. 165, 293 S.E.2d 314 (1982); Smith v. Smith, 312 S.E.2d 560 (S.C.App.1984). A court should not give a spouse exclusive possession of a residence as an incident of support unless the evidence reflects some special circumstance warrants such an award. Id.; Shealy v. Shealy, 313 S.E.2d 48 (S.C.App.1984). Here, the record does not disclose any circumstance justifying the exclusive use and possession of the marital home by the wife beyond the three-year period.
Regarding the wife's complaint about having to keep the home in good repair and to pay real estate taxes and house insurance premiums while she retains exclusive possession of the marital home, we discern no inequity. The wife ignores the fact that, during this period, the husband is deprived of the beneficial use of his interest in the marital home, an asset valued by the trial court at $42,000.
We affirm, then, that portion of the order allowing the wife the exclusive possession of the marital home for a period of three years and requiring her to maintain the house in good repair, to pay the taxes due upon the property, and to bear the cost of insuring it.
When it equitably divided the marital...
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