Wilson v. Wilson, 20609

• Decision Date: 15 February 1978
• Docket Number: No. 20609,20609
• Citation: 270 S.C. 216,241 S.E.2d 566
• Court: South Carolina Supreme Court
• Parties: Frances C. WILSON, Respondent-Appellant, v. Jack William WILSON, Appellant-Respondent.

Page 566

241 S.E.2d 566

270 S.C. 216

Frances C. WILSON, Respondent-Appellant, v. Jack William WILSON, Appellant-Respondent.

No. 20609.

Supreme Court of South Carolina.

Feb. 15, 1978.

Thomas W. Greene, Greenville, for appellant-respondent.

Sol E. Abrams and D. Michael Parham, Greenville, for respondent-appellant.

GREGORY, Justice:

Mrs. Wilson was granted a divorce and appeals the lower court's denial of her request for alimony. Mr. Wilson appeals the lower court's finding that he held a one half interest in certain properties on a resulting trust for Mrs. Wilson; and further appeals the lower court's order that he convey his remaining one half interest in the same properties to Mrs. Wilson as an equitable division of property in lieu of alimony. We hold that the evidence fails to establish a resulting trust as to one half the properties; reverse the lower court's order that Mr. Wilson convey his own one half interest in the properties to Mrs. Wilson; and remand for a determination of the extent of Mrs. Wilson's equitable interest in Mr. Wilson's properties and for an award of alimony.

Mr. and Mrs. Wilson were married on April 2, 1951 and have four children. At the time of these proceedings two of the four were emancipated and two were still living at home.

Mrs. Wilson sued her husband for a divorce a vinculo matrimonii on the ground of adultery in September 1975. The circuit court referred the matter to a special referee who heard testimony and received exhibits. In his report the special referee recommended that Mrs. Wilson be granted a divorce; that she be given the Anderson residence (the family home), one half on a resulting trust and one half as an equitable division of property in lieu of alimony; that she be given the lake property as an equitable division of property in lieu of alimony; and that she receive all furnishings and maintenance implements located in the Anderson residence. Both parties took exception to the referee's report and the case was heard by the Honorable Frank Eppes who issued his order in June 1976.

Judge Eppes concurred in the findings and recommendations of the referee on all points except one. Judge Eppes found that Mrs. Wilson was entitled to one half of the lake property on a resulting trust and ordered Mr. Wilson to convey the remaining one half of the lake property as an equitable division of property in lieu of alimony. This appeal followed.

In an action in equity, tried first by a special referee and concurred in by the trial judge, the findings of fact will not be disturbed on appeal unless found to be without evidentiary support or against the clear preponderance of the evidence. To the extent the special referee and trial judge are in disagreement on a factual finding, this Court will make findings in accordance with its own view of the preponderance or greater weight of the evidence. Townes Associates, Ltd. v. City of Greenville, 266 S.C. 81, 221 S.E.2d 773 (1976).

Shortly after their marriage the parties purchased their first home, the Easley residence, using five hundred dollars from a joint savings account as the down payment. The combined wages of both parties were used to make the house payments and to operate the Easley residence.

In 1960, while the parties were residing in the Easley residence, Mr. Wilson purchased five acres of land located in Anderson. This land was titled in Mr. Wilson's name alone, and Mrs. Wilson offered no evidence that either her funds or joint funds were used in its purchase.

Approximately three years later the Easley residence was sold and the proceeds from the sale were used to begin and complete construction of a residence on the Anderson property. Both the lower court and the special referee concluded Mr. Wilson held one half of the Easley residence on a resulting trust for Mrs. Wilson and tracing the proceeds thereof into the Anderson residence on the authority of Green v. Green, 237 S.C. 424, 117 S.E.2d 583 (1960), concluded Mrs. Wilson was entitled to one half of that residence.

In Moore v. McKelvey, 266 S.C. 95, 221 S.E.2d 780 (1976), we stated:

It is well settled that the evidence to establish a resulting trust must be definite, clear, unequivocal and convincing. Green v. Green, 237 S.C. 424, 117 S.E.2d 583; Hodges v. Hodges, supra, 243 S.C. 299, 133 S.E.2d 816.

In Hodges the principles were stated that "in order for a resulting trust to arise, such must arise, if at all, at the time the purchase is made. The funds must then, or prior thereto, be advanced and invested. A trust will not result from funds subsequently furnished." 221 S.E.2d at 781.

In Green v. Green, supra, we held that a resulting trust could be established by tracing the proceeds from the sale of one house into the purchase of a second house. In Green the lot on which the second house was built was purchased with joint funds, and when the first house was sold the proceeds from that sale were used to construct a house on the second lot. Mr. Green was found to hold a portion of the first residence on a resulting trust for Mrs. Green, and we held the trust could be traced into the second residence.

Although Mrs. Wilson's share of the proceeds from the sale of the Easley residence was used to begin and complete construction of the Anderson residence, she can trace a resulting trust into the Anderson residence on the authority of Green, supra, only if her funds or joint funds...