Wooten v. Wooten, 3610.

• Court: Court of Appeals of South Carolina
• Citation: 354 S.C. 242,580 S.E.2d 765
• Decision Date: 10 March 2003
• Docket Number: No. 3610.,3610.
• Parties: Thomas Durrette WOOTEN, Jr., Plaintiff, v. Mona Rae Howell WOOTEN, Defendant and Third-Party Plaintiff, v. Pam Perry, Third-Party Defendant, of whom Thomas Durrette Wooten, Jr., is the Appellant, and Mona Rae Howell Wooten is the Respondent.

354 S.C. 242
580 S.E.2d 765

Thomas Durrette WOOTEN, Jr., Plaintiff,
v.
Mona Rae Howell WOOTEN, Defendant and Third-Party Plaintiff,
v.
Pam Perry, Third-Party Defendant, of whom Thomas Durrette Wooten, Jr., is the Appellant, and
Mona Rae Howell Wooten is the Respondent

No. 3610.

Court of Appeals of South Carolina.

Heard January 13, 2003.

Decided March 10, 2003.

Rehearing Denied June 5, 2003.

354 S.C. 246

C. Dixon Lee, II, and James T. McLaren, of Columbia; Lon H. Shull, of Mt. Pleasant, for Appellant

Robert N. Rosen, of Charleston, for Respondent.

HEARN, C.J.:

Thomas Durrette Wooten, Jr., (Husband) appeals several aspects of a divorce decree, including the award of the marital home to Wife, the identification of certain credit card charges incurred after the parties' separation as marital debt, the decision to grant Wife permanent alimony of $4,300 per month, and the award to Wife of $52,917.21 in attorney's fees and costs. We affirm as modified in part and reverse and remand in part.

Husband and Mona Rae Wooten (Wife) were married in 1976. They have three children, all of whom are past the age of majority.

The parties married while Husband was completing medical school and Wife was employed as a nursing instructor at The Medical University of South Carolina. Husband finished his residency in 1980 and the couple moved to Columbia for him to pursue open-heart surgery anesthetics. A year later they moved back to the Charleston area and purchased a riverfront home on Johns Island. The couple transformed the house, which was described as "barely livable," into a five-bedroom home containing nearly 5,000 square feet and valued at $675,000.00 at the time of the divorce hearing.

During the marriage, the parties enjoyed a comfortable, if not extravagant lifestyle, which was largely centered on outdoor activities such as boating, hunting, and fishing. Husband and the parties' older daughter and son were actively involved in hunting and fishing. Wife described fishing as Husband's "main love."

Wife stayed home with the children while they were small and worked in Husband's practice as a bookkeeper. In 1995, Wife went to work in the Charleston County Coroner's office. At the time of trial, Wife was employed as the deputy coroner

354 S.C. 247

for Charleston County earning a salary of approximately $47,000 per year. Husband was earning approximately $217,000 per year

At some point during the marriage, Husband admitted to Wife that he had been unfaithful to her with the wife of another anesthesiologist while away at a medical meeting. Wife testified that Husband also admitted to her that he had been sexually intimate with the wife of a fishing buddy. Husband, however, testified that he had only engaged in a one-night stand with the wife of someone he fished with while at a fishing tournament in Kiawah.

In 1986 or 1987, approximately twelve years before the parties separated, Wife began a year-long affair with a family friend. The affair continued even after Husband confronted Wife, and subsequently the parties entered counseling. The parties saw four or five different counselors during this troubled time in their marriage.

In February of 1999, Husband left the marital home and subsequently underwent a vasectomy. Although Wife sought a reconciliation, Husband informed the parties' marriage counselor that he no longer loved Wife and only wanted to discuss a division of their marital assets.

Husband commenced this action in June of 1999 for an order of separate maintenance and support and an equitable division of the parties' assets and debts. Wife answered and counterclaimed seeking a divorce on the ground of adultery, possession and ownership of the marital home, equitable division of marital property, alimony, and attorney's fees.

At trial, the parties announced they had reached an agreement regarding the division of their personal property. Husband also conceded that Wife was entitled to alimony and to an equal division of the marital estate. The remaining issues were tried over a five-day period after which the family court judge issued a final order granting Wife a divorce on the ground of adultery.

Although Husband conceded at trial that Wife was entitled to a fifty-fifty division of the marital estate, he requested that the only asset of the parties that can be readily liquidated, the marital home, be sold to accomplish this division. The court

354 S.C. 248

valued the marital estate at $1,571,103.¹ To accomplish the fifty-fifty division of the marital estate, the family court judge awarded the marital home to Wife, together with its mortgage debt, her retirement account, and $137,395.50 from Husband's retirement account. Husband was awarded his interest in his medical practice valued at $41,000, the remainder of his retirement account, and indebtedness totaling $83,552. The family court also awarded Wife $4,300 per month in permanent, periodic alimony, and $52,917.21 in attorney's fees and costs

STANDARD OF REVIEW

On appeal from the family court, this court has jurisdiction to find the facts in accordance with our own view of the preponderance of the evidence. Murdock v. Murdock, 338 S.C. 322, 526 S.E.2d 241 (Ct.App.1999). However, we are mindful of the fact that the family court judge, who had an opportunity to observe the witnesses, was in a better position to evaluate their testimony. Smith v. Smith, 327 S.C. 448, 486 S.E.2d 516 (Ct.App.1997).

DISCUSSION

I. Credit Card Debt

Husband asserts the family court judge erred in identifying $12,332 in credit card charges incurred by Wife after the parties' separation as marital debt and in allocating that debt to him. We agree.

Wife testified that although Husband initially paid all household bills when he left the marital home, sometime in June of 1999 he told her that she should start paying some of the bills. After that time, and up until the time of the temporary hearing, Husband paid the mortgage payments on the marital home while Wife used her credit card for other expenses such as food and veterinary bills. Wife testified that she had a credit card bill of $12,322. The family court judge treated this debt as a marital debt subject to equitable apportionment. We find that this was error.

354 S.C. 249

"Marital property" for purposes of the South Carolina Apportionment of Marital Property Act is defined in S.C.Code Ann. § 20-7-473 (Supp.2002) as "all real and personal property which has been acquired by the parties during the marriage and which is owned as of the date of filing or commencement of marital litigation...." (emphasis supplied). Moreover, in making an equitable apportionment, the family court should consider "... any other existing debts incurred by the parties or either of them during the course of the marriage[.]" S.C.Code Ann. § 20-7-472(13) (Supp.2002). "[S]ection 20-7-472 creates a [rebuttable] presumption that a debt of either spouse incurred prior to marital litigation is a marital debt and must be factored in the totality of equitable apportionment." Hardy v. Hardy, 311 S.C. 433, 436, 429 S.E.2d 811, 813 (Ct.App.1993) (emphasis supplied).

Because it is undisputed Wife incurred these credit card charges subsequent to the filing of marital litigation, it was error for the family court judge to have considered them as a marital debt subject to equitable apportionment.² Accordingly, we reverse this portion of the family court's order allocating the credit card debt to Husband.

II. Marital Home

Husband next contends the family court judge erred in awarding Wife ownership of the marital home as part of her share of the marital estate, arguing it was inequitable to award Wife the only asset of the parties that readily lends itself to liquidation. We agree.

Husband's position throughout trial was that although Wife was entitled to share equally in the marital estate, the marital home should be sold to enable the parties to capture its substantial equity. At the time of trial, the marital home, which was titled in Wife's name, had equity of at least $539,349. Husband proposed that the home be jointly titled in both parties' names and sold so that the parties could combine their $250,000 exclusions for capital gains taxes. Gerald Feinberg, a CPA, testified for Husband concerning the tax consequences

354 S.C. 250

to the parties of the various methods of equitable distribution. Feinberg testified that if the parties sold the marital home together, they could take advantage of the joint capital gains exclusion of $500,000. He further testified that if Wife was awarded the home and Husband had to liquidate his retirement account in order to satisfy the remaining equitable division award and to make a down payment on a residence for himself, he would suffer substantial tax and withdrawal penalties. Feinberg testified these penalties would result in Husband losing fifty-one percent of the value of any retirement funds he withdrew. Wife, on the other hand, testified that she wanted to be awarded the marital home in partial satisfaction of her equitable share because "[I]t's my home. It's where my life is centered....It's where I have my kids and enjoyment. It's where I have my friends and enjoyment."

In awarding the marital home to Wife as part of her equitable share, the family court judge specifically stated that she had not given Husband's fault any weight. She likewise held that in awarding the home to Wife, she did not consider the children's use of the home, as they were all emancipated and Husband had no obligation to support them other than their college education. These findings were not appealed from and are therefore the law of this case. See Buckner v. Preferred Mut. Ins. Co., 255 S.C. 159, 177 S.E.2d 544 (1970) (stating that an issue which is not challenged on appeal, whether right or wrong, becomes the law of the case).

Additionally, the family court judge specifically noted that she had not considered the tax...