Wooten v. Wooten, No. 25977.

CourtUnited States State Supreme Court of South Carolina
Writing for the CourtBurnett
Citation615 S.E.2d 98
PartiesThomas Durrette WOOTEN, Jr., Plaintiff, v. Mona Rae WOOTEN, Defendant and Third Party Plaintiff, v. Pam Perry, Third Party Defendant, of whom Thomas Durrette Wooten, Jr., is Petitioner/Respondent and Mona Rae Wooten, is Respondent/Petitioner. and Thomas Durrette Wooten, Jr., Respondent, v. Mona Rae Howell Wooten, Petitioner.
Docket NumberNo. 25977.
Decision Date02 May 2005

Page 98

615 S.E.2d 98
Thomas Durrette WOOTEN, Jr., Plaintiff,
v.
Mona Rae WOOTEN, Defendant and Third Party Plaintiff,
v.
Pam Perry, Third Party Defendant,
of whom Thomas Durrette Wooten, Jr., is Petitioner/Respondent and
Mona Rae Wooten, is Respondent/Petitioner. and
Thomas Durrette Wooten, Jr., Respondent,
v.
Mona Rae Howell Wooten, Petitioner.
No. 25977.
Supreme Court of South Carolina.
Heard March 2, 2005.
Decided May 2, 2005.
Refiled June 6, 2005.

Page 99

COPYRIGHT MATERIAL OMITTED

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Robert N. Rosen of Rosen Law Firm, L.L.C., of Charleston, and Donald B. Clark, of Charleston, for Mona Rae Wooten (Respondent/Petitioner and Petitioner).

James T. McLaren and C. Dixon Lee, III, both of McLaren & Lee, of Columbia; and Lon H. Shull, III, of Andrews & Shull, P.C., of Mt. Pleasant, for Thomas Durrette Wooten, Jr. (Petitioner/Respondent and Respondent).

ORDER

Respondent/Petitioner (Wife) filed a petition for rehearing in which she asked the Court to clarify whether it intended to reverse the Court of Appeals' remand of the issue of the alimony award to then family court. Petitioner/Respondent (Husband) filed a return in opposition.

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We grant the petition for rehearing, withdraw the former opinion, and substitute the attached opinion.

IT IS SO ORDERED.

s/ Jean H. Toal, C.J.

s/ James E. Moore, J.

s/ John H. Waller, Jr., J.

s/ E.C. Burnett, III, J.

s/ Costa M. Pleicones, J.

Justice BURNETT:


This divorce case raises issues related to equitable distribution and alimony. We granted both parties' petitions for a writ of certiorari in one appeal and a certiorari petition in the second appeal to review issues addressed in two opinions issued by the Court of Appeals. Wooten v. Wooten, 356 S.C. 473, 589 S.E.2d 769 (Ct.App.2003); Wooten v. Wooten, 358 S.C. 54, 594 S.E.2d 854 (Ct.App.2003). We consolidate the two appeals for review and resolution. See Rule 214, SCACR. We affirm in part and reverse in part.

FACTUAL AND PROCEDURAL BACKGROUND

Thomas D. Wooten, Jr. (Husband) and Mona Rae Wooten (Wife) were married in 1976. The couple met in Columbia while Husband was in medical residency training and moved to Johns Island in 1981, where they lived until Husband moved out of the marital home in 1999. Both parties had adulterous affairs in the mid-1980s, but admitted the affairs to each other, attended counseling sessions, and reconciled. Wife testified Husband's decision to leave surprised her and she believed their marriage, while not perfect, was solid.

Husband, now age 56, is an anesthesiologist with a gross annual income of $217,000. Wife, a registered nurse by training, is a county deputy coroner with a gross annual income of $47,000. After moving to Johns Island, Wife stayed home for several years to care for the couple's three young children. The children were emancipated at the time of trial. Wife also managed the billing of Husband's patients to increase the family's income. Wife's business duties ended in 1987 when Husband hired a secretary to do the billing and then later merged his practice with other anesthesiologists.

The couple and their children lived an affluent lifestyle. They extensively renovated and expanded their home in the early 1980s and often entertained family and friends on weekends at the home and on their boat. Husband frequently went fishing and hunting. They belonged to a country club and regularly went out to dinner. Husband bought and sold several boats during the marriage, including at least one capable of deep-sea fishing trips, and kept two boats valued at $30,000 as part of his division of the couple's personal property.

Husband began a adulterous relationship before marital litigation commenced. Husband admitted his misconduct and has not appealed the family court's grant of a divorce to Wife on the ground of adultery.

The parties agreed on an equal division of the $1.3 million marital estate, which consisted primarily of the $675,000 marital home, which was subject to mortgages totaling $230,625; Husband's retirement and pension accounts of $844,026; the $41,000 valuation of Husband's interest in his medical practice; and Wife's retirement account of $11,077.

The family court, essentially adopting a proposal offered by Wife's accountant, divided the marital assets equally by awarding the marital home to Wife and the bulk of Husband's retirement accounts to him. Husband also was ordered to pay Wife $4,300 per month in alimony, with Wife receiving $2,867 per month after taxes. The family court denied Wife's request Husband secure the alimony award by maintaining a life insurance policy naming her as beneficiary. The family court ordered Husband to pay Wife's attorney's fees of $52,917.

ISSUES

I. Did the Court of Appeals err in reversing the family court's decision to award the marital home to Wife in equitably distributing the marital estate?

II. Did the Court of Appeals err in reversing the family court's decision to

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award a credit card debt, incurred by Wife after marital litigation began, to Husband in equitably distributing the marital estate?

III. Did the Court of Appeals err in affirming the family court's decision not to require Husband to secure an alimony award to Wife with a life insurance policy naming Wife as beneficiary?

IV. Did the Court of Appeals err in affirming the family court's decision to require Husband to pay Wife's attorney's fees and costs, where the Court of Appeals reversed the family court's decision in favor of Wife on the primary issues in dispute?

STANDARD OF REVIEW

In appeals from the family court, an appellate court has the authority to find the facts in accordance with its own view of the preponderance of the evidence. Rutherford v. Rutherford, 307 S.C. 199, 414 S.E.2d 157 (1992); Owens v. Owens, 320 S.C. 543, 466 S.E.2d 373 (Ct.App.1996). This broad scope of review does not, however, require the appellate court to disregard the findings of the family court. Stevenson v. Stevenson, 276 S.C. 475, 279 S.E.2d 616 (1981). Neither is the appellate court required to ignore the fact that the family court, 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).

LAW AND ANALYSIS

I. MARITAL HOME

Testimony during the five-day trial focused primarily on the equitable division of the two major marital assets — the marital home and the retirement accounts. Husband sought to have the assets divided equally by awarding half the retirement accounts to each, selling the house to take full advantage of the $500,000 capital gains tax exclusion for married spouses, and dividing the sale proceeds so that each party could purchase a smaller house with no mortgage.

Husband and his accountant testified that, if Wife were awarded the home, Husband would suffer tax and withdrawal penalties equaling fifty-one percent of any funds he withdrew if required to liquidate his retirement accounts to satisfy the equitable division award and make a substantial down-payment on a home for himself. Wife sought to keep the house as part of her division of the marital estate.

The family court divided the primary marital property and debts in a manner which gave each party a net total of $664,078. Husband received assets of $590,087 in IRA retirement funds, $116,543 in his medical practice's retirement pension, the $41,000 value of his medical practice, and debt of $71,230 (representing 75 percent of the home equity line) and a credit card debt of $12,322. Wife received assets of the $675,000 marital home, $137,395 from Husband's IRA account, her retirement fund of $11,077, and debts of $135,651 for the first mortgage on the marital home and $23,743 (representing 25 percent of the home equity line).1

The family court did not consider Husband's fault in awarding the home to Wife, but primarily considered the length of the marriage, Wife's needs, the parties' lifestyle during the marriage, and Husband's ability to pay. The family court did not award the home as an incident of support, but as an asset to be equitably divided, and did not consider the custody or interests of the children because they were emancipated. Further, the family court did not consider speculative tax ramifications related to either the potential sale of the home by Wife or potential early withdrawals from retirement accounts by Husband.

A divided Court of Appeals reversed, with the majority finding the family court abused its discretion by performing an inequitable "in-kind" distribution of dissimilar assets and by failing to consider the tax consequences of

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Husband's necessary liquidation of his retirement accounts. Wooten, 358 S.C. at 60-64, 594 S.E.2d at 858-60.

Wife argues the Court of Appeals' majority erred in reversing the family court's decision to award the marital home to her in equitably distributing the marital estate by incorrectly applying the standards for awarding a house as an incident of support. Furthermore, the Court of Appeals erred in concluding the division was inequitable or likely to result in tax consequences by forcing Husband to liquidate his retirement accounts to comply with the order. Husband contends the family court erred in failing to consider the tax consequences of its order.

The apportionment of marital property is within the discretion of the family court and will not be disturbed on appeal absent an abuse of discretion. Morris v. Morris, 295 S.C. 37, 39, 367 S.E.2d 24, 24 (1988). In order to effect an equitable apportionment, the family court may require the sale of marital property and a division of the proceeds. Donahue v. Donahue, 299 S.C. 353, 360, 384 S.E.2d 741, 745 (1989). However, the court should first try to make an "in-kind" distribution of the marital assets, i.e., award a share of each type of asset to each spouse. Id.

The family court may grant a spouse title...

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118 practice notes
  • Lafrance v. Lafrance, No. 4158.
    • United States
    • Court of Appeals of South Carolina
    • October 2, 2006
    ...the equitable distribution of marital assets is largely within the discretion of the family court. Wooten v. Wooten, 364 S.C. 532, 542, 615 S.E.2d 98, 103 (2005); Nasser-Moghaddassi v. Moghaddassi, 364 S.C. 182, 202, 612 S.E.2d 707, 718 (Ct.App. 2005). In order to effect an equitable apport......
  • Lewis v. Lewis, No. 26973.
    • United States
    • United States State Supreme Court of South Carolina
    • May 9, 2011
    ...the Court could find facts in accordance with its own view of the preponderance of the evidence); Wooten v. Wooten, 364 S.C. 532, 540, 615 S.E.2d 98, 102 (2005) (stating on writ of certiorari in a domestic relations case, “an appellate court has the authority to find the facts in accordance......
  • Braun v. Braun, No. 04-P-1639.
    • United States
    • Appeals Court of Massachusetts
    • May 4, 2007
    ...of the order upon the obligor. See Stalnaker v. Stalnaker, 892 So.2d 561, 563 (Fla.App.2005); Wooten v. Wooten, 364 S.C. 532, 550-554, 615 S.E.2d 98 (2005) (discussing statutory 23. The husband's argument is inapposite to stock options received by him after the entry of the divorce judgment......
  • Nicholson v. Nicholson, No. 4404.
    • United States
    • Court of Appeals of South Carolina
    • June 6, 2008
    ...the Family Court's findings." Bowers v. Bowers, 349 S.C. 85, 91, 561 S.E.2d 610, 613 (Ct.App.2002); Wooten v. Wooten, 364 S.C. 532, 540, 615 S.E.2d 98, 102 (2005); Badeaux v. Davis, 337 S.C. 195, 202, 522 S.E.2d 835, 838 (Ct.App.1999). "Nor must we ignore the fact that the trial judge, who ......
  • Request a trial to view additional results
118 cases
  • Lafrance v. Lafrance, No. 4158.
    • United States
    • Court of Appeals of South Carolina
    • October 2, 2006
    ...the equitable distribution of marital assets is largely within the discretion of the family court. Wooten v. Wooten, 364 S.C. 532, 542, 615 S.E.2d 98, 103 (2005); Nasser-Moghaddassi v. Moghaddassi, 364 S.C. 182, 202, 612 S.E.2d 707, 718 (Ct.App. 2005). In order to effect an equitable apport......
  • Lewis v. Lewis, No. 26973.
    • United States
    • United States State Supreme Court of South Carolina
    • May 9, 2011
    ...the Court could find facts in accordance with its own view of the preponderance of the evidence); Wooten v. Wooten, 364 S.C. 532, 540, 615 S.E.2d 98, 102 (2005) (stating on writ of certiorari in a domestic relations case, “an appellate court has the authority to find the facts in accordance......
  • Braun v. Braun, No. 04-P-1639.
    • United States
    • Appeals Court of Massachusetts
    • May 4, 2007
    ...of the order upon the obligor. See Stalnaker v. Stalnaker, 892 So.2d 561, 563 (Fla.App.2005); Wooten v. Wooten, 364 S.C. 532, 550-554, 615 S.E.2d 98 (2005) (discussing statutory 23. The husband's argument is inapposite to stock options received by him after the entry of the divorce judgment......
  • Nicholson v. Nicholson, No. 4404.
    • United States
    • Court of Appeals of South Carolina
    • June 6, 2008
    ...the Family Court's findings." Bowers v. Bowers, 349 S.C. 85, 91, 561 S.E.2d 610, 613 (Ct.App.2002); Wooten v. Wooten, 364 S.C. 532, 540, 615 S.E.2d 98, 102 (2005); Badeaux v. Davis, 337 S.C. 195, 202, 522 S.E.2d 835, 838 (Ct.App.1999). "Nor must we ignore the fact that the trial judge, who ......
  • Request a trial to view additional results

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