THIS OPINION HAS NO
PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN
ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.
THE STATE OF SOUTH CAROLINA
In The Court of Appeals
Karen Ann Lucas, Respondent,
v.
Grange S. Lucas and Mary
King Lucas, Appellants.
Appeal from Charleston County
Jocelyn B. Cate, Family Court Judge
Unpublished Opinion No. 2011-UP-374
Submitted April 1, 2011 Filed July 21, 2011
AFFIRMED IN PART AND REVERSED IN PART
Philip A. Middleton, of Charleston, for Appellants.
Deena Smith McRackan, of Charleston, for Respondent.
PER CURIAM: In this appeal from the family court, George Lucas
(Husband) argues the family court erred in awarding the parties' motor coach to
Karen Lucas (Wife). Husband also contends the family court abused its
discretion in awarding attorney's fees to Wife. We affirm in part and reverse
in part.
FACTS/PROCEDURAL HISTORY
Husband and Wife were married
in Hawaii on July 2, 1996, and no children were born of the marriage. On the
date of the final hearing, Husband and Wife were fifty-two years old. Prior to
the marriage, Husband obtained a degree in horticultural technology from
a technical college. However, Husband worked as freelance golf photographer
during their marriage and earned approximately $900 per month. Wife is a
registered nurse and worked in the nursing field for a majority of the parties'
marriage. During that time, Wife earned between $58,000 and $90,000 per year.
Due to numerous health issues, Wife stopped working as a nurse in 2000 and
began working as a freelance photographer with Husband. After two or three
years, she resumed working as a nurse, but due to complications caused by her
medical conditions, she was unemployed on the date of the final hearing.
The parties lived with
Husband's elderly mother (Mother) in her home in Charleston, South Carolina,
during the vast majority of their marriage. During that time, the parties did
not pay rent, but they paid the bills and helped to maintain the residence. When
the parties separated in September 2006, Wife moved in with her mother in
Woodruff, South Carolina. In September 2007, Wife filed for divorce based on
one year's continuous separation.
On the date of the final
hearing, the parties owned no real property. Their primary dispute centered around
two items of personal property, namely a 1994 Georgie Boy Signature Swinger
motor coach and a Ryder Cup collector's golf club.[1] After hearing testimony from both
parties, the family court issued a final divorce decree granting the parties a
divorce based on one year's continuous separation. In its decree, the family
court found Wife made greater direct and indirect contributions towards the
acquisition, preservation, and appreciation of the marital estate. As a
result, it awarded the Ryder Cup golf club to Husband and the motor
coach to Wife. The family court acknowledged Mother held title to the motor
coach and had paid off the lien on the motor coach with funds drawn from an
equity line on Mother's home. However, the family court determined Husband's
post-filing transfer of title to Mother was in bad faith. Further, the family court
held that any payment by Mother on the motor coach was either a gift or
repayment for monies expended mainly by Wife for improvement and upkeep of Mother's
home. The court also granted Wife's request for alimony in the amount of $500
per month and her request for attorney's fees and costs in the amount of
$7,536.08. This appeal followed.
STANDARD OF REVIEW
On appeal from the family
court, this court reviews factual and legal issues de novo. Simmons v.
Simmons, Op. No. 26970 (S.C. Sup. Ct. filed May 9, 2011) (Shearhouse Adv.
Sh. No. 16 at 29); Lewis v. Lewis, Op. No. 26973 (S.C. Sup. Ct. filed
May 9, 2011) (Shearhouse Adv. Sh. No. 16 at 44). Although this court reviews
the family court's findings de novo, we are not required to ignore the fact
that the trial court, who saw and heard the witnesses, was in a better position
to evaluate their credibility and assign comparative weight to their
testimony. Lewis, Op. 26973 at 46-48. The burden is upon the appellant
to convince this court that the family court erred in its findings. Id. at 49-51.
LAW/ANALYSIS
I. Motor Coach
Husband claims the family
court erred in certain findings of fact, specifically the court's finding that
Wife made a greater contribution to the acquisition, appreciation, and
preservation of the marital estate, which it erroneously relied upon in
determining Wife was entitled to the motor coach. We agree.
At the final hearing, the
parties testified they purchased the motor coach for approximately $30,000 in
2002, by using Mother's home as collateral on the initial loan. The motor
coach was subsequently paid off in 2005 through an equity line taken out on Mother's
home. Wife did not claim she ever made any payments on the equity line but
rather stated she had no involvement in the financing of the motor coach or in
the refinancing of Mother's home. On the other hand, Husband testified he,
along with Mother and Husband's sister, was responsible for paying the $605
monthly payment on the equity line. The foregoing evidence indicates Husband
made a greater contribution to the acquisition of the motor coach. Furthermore,
Wife's valuation for a motor coach of the same make and model reflected a
decrease in value by almost half since the date of purchase. Her valuation directly
contradicts the family court's finding that the motor coach appreciated during
the marriage. Therefore, this finding is not supported by the record.
Regarding Wife's contribution
to the preservation of the motor coach, Wife testified she and Husband made
substantial repairs to the motor coach. However, Wife never testified she paid
for these expenses directly out of her salary or that she was solely
responsible for the insurance that ultimately paid many of the repair costs.
While Wife may have contributed her time and energy in the upkeep and
maintenance of the motor coach, we find no evidence that her contribution was
greater than that of Husband. Further, the record demonstrates accounting for
the depreciation in the motor coach in conjunction with the remaining balance
on Mother's equity line[2] results in a windfall to Wife. Specifically, Wife's valuation on the date of
the final hearing for a motor coach of the same make and model ranged from
$12,485 to $15,075. The outstanding loan on the motor coach, which Mother paid
off in 2005, totaled $29,520. We recognize the motor coach is technically debt
free because Mother paid off the loan with equity taken out of her home, but we
find it inequitable to award Wife the motor coach free and clear when the
resulting indebtedness is greater than the asset's value.[3] Furthermore, we find it
inequitable to award this asset entirely to Wife without any affirmative proof
that she contributed to its acquisition or debt reduction, particularly when
Mother, not Wife, is responsible for repaying that debt.
Wife presented no testimony
she made any payments on the motor coach or on the equity line. Instead, Wife
testified Husband and Mother financed the motor coach. While her failure to
make payments on the motor coach does not render it nonmarital property, we
fail to see how an asset completely paid for by Mother and Husband, and for
which Mother is still indebted, should be awarded to Wife. Cf. Bowen
v. Bowen, 280 S.C. 602, 604, 313 S.E.2d 362, 364 (Ct. App. 1984) (finding
family court properly found house was not wife's sole property despite being
titled in wife's name when husband made all mortgage payments on the house and
wife's financial contributions were nominal). Further, we disagree with the
family court's finding that the payoff of the motor coach was either a gift or
repayment for monies Wife expended to improve the house. Neither Wife nor
Husband ever testified Mother paid off the motor coach as a gift, but instead
Wife stated Mother participated in financing the motor coach because the
parties did not have sufficient collateral to secure the purchase of the motor
coach on their own.[4] Additionally, Wife's own testimony indicates the improvements and repairs to Mother's
house were in lieu of paying rent. As a result, we find the family court erred
when it awarded the motor coach to Wife. We reverse this portion of the family
court's order.[5]
II. Attorney's Fees
Husband also avers the family
court erred in awarding attorney's fees to Wife. We disagree.
An award of attorney's fees
and costs is a discretionary matter not to be overturned absent an abuse of
discretion by the family court. Donahue v. Donahue, 299 S.C. 353, 365,
384 S.E.2d 741, 748 (1989). To award attorney's fees, the family court should
consider several factors, including: (1) ability of the party to pay the fees;
(2) beneficial results obtained; (3) financial conditions of the parties; and
(4) the effect a fee award will have on the party's standard of living. E.D.M.
v. T.A.M, 307 S.C. 471, 476-77, 415 S.E.2d 812, 816 (1992).
While Husband does not
contest the reasonableness of Wife's attorney's fees,[6] he claims the requisite factors
from E.D.M. do not support an award of fees to Wife. We disagree and
find the family court properly considered the appropriate factors in awarding
Wife attorney's fees. Specifically, the family court concluded Husband had "a
superior financial condition and ability to pay both his and Wife's fees by
reason of Wife's emotional and physical health." Additionally, the family
court found Wife obtained a beneficial result in the areas she requested relief
and because Husband had the ability to earn a living whereas Wife did not, the
imposition of fees against Husband would have a lesser effect on Husband's
standard of living than that of Wife.
Despite our decision to award
the motor coach to Husband, we find Wife is entitled to attorney's fees.
First, while both parties' financial declarations reveal that neither party has
a significant monthly income, Husband, despite being underemployed, was in a
better financial position on the date of the final hearing to pay Wife's fees.
We recognize Wife's degree in nursing has allowed her to maintain a greater
earning capacity in the past, which would otherwise increase her ability to pay
her fees. However, due to Wife's significant health issues, she is currently
unable to maintain even part-time employment. Further, even if Wife was
gainfully employed, we cannot say an award of fees would be an abuse of
discretion under the circumstances because each party's ability to pay is but
one factor to consider in awarding fees. See Harvley v. Harvley,
279 S.C. 572, 576, 310 S.E.2d 161, 163 (Ct. App. 1983) (finding the fact that
wife was gainfully employed and husband was unemployed did not deprive wife of
award of attorney's fees when facts and circumstances of case merited
imposition of fees against husband).
Although we alter Wife's
share of the marital estate, Wife has succeeded in part on other issues.
First, she requested a divorce based on one year's continuous separation and
resumption of her maiden name, both which the family court granted. Next, she
sought permanent periodic alimony in the amount of $1,500 per month, and while
the family court properly determined Husband could not afford to pay this
amount given his current earnings, Wife succeeded in securing a $500 monthly
alimony payment. Additionally, Wife is entitled to the car dolly and all other
personal property specifically granted to Wife in the final order.
Our decision to reverse the
family court on the motor coach issue does not completely negate Wife's
beneficial results. See Myers v. Myers, 391 S.C. 308, 322, 705
S.E.2d 86, 94 (Ct. App. 2011) (finding wife was still entitled to a portion of
her attorney's fees despite partial reversal because she succeeded on other
issues); Golden v. Gallardo, 295 S.C. 393, 395, 368 S.E.2d 684, 685 (Ct.
App. 1988) (finding the family court properly awarded the mother a portion of
her fees and costs in suit brought by father to enforce visitation rights when
both parties prevailed on some issues). Moreover, as stated earlier, a party's
success at trial is only one factor to be considered by the court in
determining whether a party is entitled to attorney's fees. See Upchurch
v. Upchurch, 367 S.C. 16, 28, 624 S.E.2d 643, 649 (2006) ("Beneficial
result alone is not dispositive of whether a party is entitled to attorney's
fees."); Roberson v. Roberson, 359 S.C. 384, 393, 597 S.E.2d 840,
844-45 (Ct. App. 2004) (finding wife was entitled to $8,000 in attorney's fees
because she needed assistance to pay her fees, she succeeded on some of the
contested issues in divorce, and the attorney's fees would have a greater
impact on wife than on husband given their financial conditions). Accordingly,
we find that under these circumstances, the family court properly exercised its
discretion in requiring Husband to pay Wife's attorney's fees.
CONCLUSION
Based on the foregoing, the
family court's order is
AFFIRMED IN PART AND REVERSED
IN PART.
WILLIAMS, GEATHERS, and
LOCKEMY, JJ., concur.
[1] The parties purchased the motor coach in 2002 for $29,800, but Wife
presented evidence that its value ranged between $12,485 and $15,075 at trial.
Wife estimated the golf club was worth approximately $2,500, which Husband did
not contest at trial or on appeal.
[2] Husband testified the equity
line, which is capped at $50,000, has ballooned to approximately $48,000
because he and Mother are taking monthly draws between $300 and $400 to pay
living expenses.
[3] Subtracting either the highest or lowest valuation submitted by Wife
for the motor coach from the original purchase price results in a negative
equity for the motor coach.
[4] Moreover, if Husband established the motor coach was a gift from Mother,
it would be logical to conclude based on Husband's and Wife's testimony that Mother
gifted the motor coach to Husband not to Wife. Because a gift from a third
party solely to one spouse should be treated as nonmarital property, this would
also require awarding Husband the motor coach. See Barr v. Barr,
287 S.C. 13, 17, 336 S.E.2d 481, 484 (Ct. App. 1985) (holding a gift from a
third party solely to one spouse should be treated as spouse's separate,
nonmarital property).
[5] We decline to address Husband's remaining contention regarding whether
his transfer of the title of the motor coach to Mother was in bad faith. See Futch v. McAllister Towing of Georgetown, Inc., 335 S.C. 598, 613, 518
S.E.2d 591, 598 (1999) (finding appellate court need not review remaining
issues when determination of a prior issue is dispositive).
[6] See Glasscock v. Glasscock, 304 S.C. 158, 403 S.E.2d 313
(1991).