Johnson v. Johnson ( 2014 )

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
Allison J. Johnson, Respondent,
v.
Russell E. Johnson, Appellant.
Appellate Case No. 2013-000025
Appeal From Richland County
Anne Gue Jones, Family Court Judge
Unpublished Opinion No. 2014-UP-183
Heard March 6, 2014 – Filed April 30, 2014
AFFIRMED
Linda Zeigler Jackson and Robert L. Jackson, both of
Jackson & Jackson, of Columbia, for Appellant.
James Grant Long, III, Tanya Amber Gee, and Jennifer
Joan Hollingsworth, all of Nexsen Pruet, LLC, of
Columbia, for Respondent.
PER CURIAM: Russell E. Johnson (Husband) appeals a divorce decree, arguing
the family court erred in: (1) finding the goodwill of his business was subject to
equitable division; (2) awarding Respondent Allison J. Johnson (Wife) a share in
the value of the business based on her direct and indirect contributions; (3)
rejecting Husband's claim that he had a fifty percent interest in the business before
the parties' marriage; and (4) awarding Wife $36,500.00 in attorney's fees,
$3,661.00 in costs, and $7,502.22 in expert fees. After hearing oral argument in
the matter,1 we affirm pursuant to Rule 220(b)(1), SCACR, and the following
authorities:
1. As to the inclusion of the goodwill of Beltone Hearing Care Group, LLC, in
the marital estate: Lewis v. Lewis, 392 S.C. 381, 389, 709 S.E.2d 650, 654 (2011)
("[D]e novo review [in appeals from the family court] neither relieves an appellant
of demonstrating error nor requires us to ignore the findings of the family court.");
Pinckney v. Warren, 344 S.C. 382, 387-88, 544 S.E.2d 620, 623 (2001) (stating the
broad scope of review in an appeal from an action in equity does not relieve the
appellant of the burden of convincing the appellate court that the trial court erred in
its findings); RGM v. DEM, 306 S.C. 145, 152, 410 S.E.2d 564, 568 (1991)
("Marital businesses are to be valued at fair market value as ongoing businesses.");
id. (holding the family court erred in finding an expert witness properly excluded
goodwill in computing the value of a business); Casey v. Casey, 293 S.C. 503, 504,
362 S.E.2d 6, 7 (1987) ("When the goodwill in a business is dependent upon the
owner's future earnings, it is too speculative for inclusion in the marital estate."
(emphasis added)); id. (noting the future earnings of a supporting spouse "are
accounted for in an award of alimony"); Weinberg v. Wallace, 314 S.C. 183, 187,
442 S.E.2d 211, 213 (Ct. App. 1994) (noting goodwill can adhere to a variety of
assets besides the professional skill of a business owner, including the trade name
of a business, its physical location, and tangible assets such as fixtures and
inventory).
2. As to the award of thirty percent of the value of Beltone Hearing Care
Group, LLC, to Wife based on her direct and indirect contributions: Epperly v.
1
During the hearing, counsel for Husband moved to bar opposing counsel from
presenting oral argument pursuant to Rule 217, SCACR, noting that Wife's brief
included a suggestion that this court overrule Casey v. Casey. After receiving
assurances from Wife's attorney that he did not intend to present oral argument
against precedent, we denied the motion and allowed counsel to proceed. See Rule
217, SCACR (requiring a formal motion only for "[o]ral argument against
precedent" and expressly providing that "[p]ermission of the appellate court shall
not be required to argue against precedent in the brief").
Epperly, 312 S.C. 411, 414, 440 S.E.2d 884, 885-86 (1994) (adopting the family
court's findings of fact on an issue in which divergent testimony was presented
because "the sitting judge was in the best position to determine the credibility of
the witnesses").
3. As to Husband's argument that he had acquired a fifty percent interest in
Beltone Hearing Care Group, LLC, prior to the parties' marriage: Wilburn v.
Wilburn, 403 S.C. 372, 382, 743 S.E.2d 734, 740 (2013) ("If [a spouse] presents
evidence to show the property is marital, the burden shifts to the other spouse to
present evidence to establish the property's nonmarital character.").
4. As to the award of attorney's fees, costs, and expert witness fees: Patel v.
Patel, 359 S.C. 515, 533, 599 S.E.2d 114, 123 (2004) (noting assessment of
attorney's fees against a party in a family court action is authorized by statute); id.("An award of attorney's fees rests within the sound discretion of the trial judge
and should not be disturbed on appeal unless there is an abuse of discretion.");
Susan R. v. Donald R., 389 S.C. 107, 117, 697 S.E.2d 634, 639 (Ct. App. 2010)
(affirming a partial award of attorney's fees even though the opposing party
prevailed on some of the issues).
AFFIRMED.
HUFF, THOMAS, and PIEPER, JJ., concur.