Brown v. Brown ( 2011 )

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

Louis A. Brown, Respondent,

v.

Elsie Francis Brown and Sharon A. Smith, Defendants,

Of Whom Elsie Francis Brown is the Appellant.

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Appeal From Anderson County
Joseph W. McGowan, III, Family Court Judge

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Unpublished Opinion No. 2011-UP-367  
Heard January 11, 2011 – Filed July 12, 2011

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AFFIRMED IN PART AND REVERSED IN PART

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William Norman Epps, III, of Anderson, for Appellant.

Druanne Dykes White, T. Harper Collins, and Sarah Ganss Drawdy, of Anderson, for Respondent.

PER CURIAM: Elsie Francis Brown (Wife) appeals the order of the family court holding pasture land (Pasture Property) purchased by Louis A. Brown (Husband) prior to the marriage had not been transmuted into marital property and Wife did not have a special equity in the Pasture Property.  Wife also argues the family court erred in failing to order the return to her of certain items of personal property.  We affirm as to the Pasture Property and reverse as to the personal property. 

FACTUAL/PROCEDURAL HISTORY

The parties were married on November 16, 1982.  They separated on December 28, 2006.  At the time of the separation, Wife was 80 years old and Husband was 87.[1] Wife has four living children, including Defendant Sharon Smith, from a previous marriage.  Husband also has four children from a previous marriage. They had no children together. 

Husband retired from Wellington Mills in 1984.  He had purchased the 122-acre Pasture Property in 1947 for $3,000.  He kept cattle on the Pasture Property until 1998, when he sold the cattle to his son Robert.  Wife worked for Bi-Lo until she had to retire due to health reasons in 2007.  During the marriage, the parties maintained separate bank accounts.  One of Wife's accounts was a joint account with Smith.  Wife paid for her car, insurance, her own medical expenses, and some groceries with her account.  Husband paid the taxes and insurance on the house and Pasture Property, phone, utilities, his medical expenses, and most of the groceries from his account.  While they were married, the parties lived in the house Husband inherited in 1978.  Wife contributed to numerous improvements made to the house. 

Wife decided in early December to separate from Husband after he told her to leave.  In preparation for the separation, Wife purchased a mobile home, a freezer, a refrigerator, and a stove.  In January, Wife transferred most of the money from the joint account with Smith to an account solely in Smith's name and purchased a certificate of deposit (cd) in Smith's name with the remaining $10,000.  Wife acknowledged Smith had not contributed to the funds in the joint account.  When Wife left on December 28, she took a considerable amount of personal property. She returned on a later date to retrieve more items of personal property. 

Husband brought this action on January 11, 2007.  After a hearing, the family court held the marital residence, which had a value of $45,000, had been transmuted into marital property.  However, it held the Pasture Property was non-marital and Wife did not have a special equity in the property.  The court found the funds in the account in Smith's name, as well as the cd, were marital property and credited Wife with these funds.  The court held each party would keep ownership and possession of the household goods in his or her possession.  The court awarded Wife attorney's fees.  Wife filed a motion to alter or amend, which the family court denied.  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) (Shearouse Adv. Sh. No. 16 at 27, 29); see Lewis v. Lewis, Op. No. 26973 (S.C. Sup.Ct. filed May 9, 2011) (Shearouse Adv. Sh. No. 16 at 41, 44).  Although this court reviews the family court's findings de novo, we are not required to ignore the fact that the family court, which saw and heard the witnesses, was in a better position to evaluate their credibility and assign comparative weight to their testimony.  Lewis, at 46–48.  The burden is upon the appellant to convince this court that the family court erred in its findings.  Id. at 51.

LAW/ANALYSIS

1.  Pasture Property

Wife argues the family court erred in failing to find the Pasture Property had been transmuted into marital property or that she had a special equity interest in the property.  We disagree.

Property acquired prior to the marriage is generally considered nonmarital.  S.C. Code Ann. § 20-3-630(A)(2) (Supp. 2010).  In addition, marital property does not include "any increase in value in nonmarital property, except to the extent that the increase resulted directly or indirectly from efforts of the other spouse during marriage."  S.C. Code Ann. § 20-3-630(A)(5) (Supp. 2010).  A non-owner spouse has a special equity interest in any increase in value of nonmarital property resulting from that spouse's material contribution.  Murray v. Murray, 312 S.C. 154, 159, 439 S.E.2d 312, 316 (Ct. App. 1993).

In addition, even if property is nonmarital, it may be transmuted into marital property during the marriage.  Johnson v. Johnson, 296 S.C. 289, 295, 372 S.E.2d 107, 110 (Ct. App. 1988).  The spouse claiming nonmarital property has been transmuted must produce objective evidence showing the parties themselves regarded the property as the common property of the marriage during the marriage.  Id. at 295, 372 S.E.2d at 110-11. Evidence of transmutation includes jointly titling the property, using the property exclusively for marital purposes, commingling the property with marital property so that it becomes untraceable, or using marital funds to build equity in the property.  Id. at 295, 372 S.E.2d at 111.  "The mere use of separate property to support the marriage, without some additional evidence of intent to treat it as property of the marriage, is not sufficient to establish transmutation."  Id. at 295-96, 372 S.E.2d at 111. Whether property has been transmuted into marital property is a matter of intent to be determined from the facts of each case.  Simpson v. Simpson, 377 S.C. 527, 538, 660 S.E.2d 278, 284 (Ct. App. 2008). 

Husband purchased the Pasture Property in 1947 for $3,000.  An appraiser valued the property at $383,000 at the time of the hearing.  The Pasture Property was fenced and Husband kept cattle on it.  In 1998, Husband's son purchased the cattle from Husband for $10,000 and took over the duties of caring for the cattle and the property.  Husband never had any debt on the Pasture Property during the marriage.  In addition, he paid all of the taxes and insurance on the Pasture Property from his account.  The Pasture Property was titled solely in his name and Husband had devised the Pasture Property to his children in his will.  Wife acknowledged Husband never indicated he would transfer the Pasture Property into her name. She also acknowledged that for years, his will provided the Pasture Property would go to his children. 

Wife claimed she shared in the care of the cattle.  She testified she went with Husband at least twice a day to check on the cattle.  In addition she stated she accompanied Husband when taking the cows to market.  When Husband was in the hospital, Wife and Smith cared for the cattle.  Wife's son testified Husband and Wife always worked on the Property together.  Reverend Samuel Duncan testified that he frequently visited the parties' home during marriage.  He stated that often when he arrived at the house, they would not be home.  They would later apologize and explain they had been working at the farm.  However, he acknowledged he did not know what chores Wife did at the farm.  Dr. Andrew Singer, the veterinarian who treated the cattle, stated Wife was always with Husband when he brought cattle to the practice.  Wife helped load and unload the cattle and went inside to make the payments.  He stated during the later years, he dealt exclusively with her while Husband stood by the truck. 

In contrast, Husband testified Wife did not work with him on the Pasture Property.  He stated that when Wife accompanied him to the property, she simply watched him work. Husband's son Robert testified Husband did all of the work on the Pasture Property with Robert's occasional help.  Robert testified Wife often stayed in the truck when the parties drove to the Property.  Sheila Loftis, who lived near the Pasture Property, testified she only saw Husband and Robert working on the property.  She never saw Wife working there.  Similarly, another neighbor who lived near the Pasture Property stated in an affidavit that he had never seen Wife on the property. 

We find the record supports the family court's rulings that the Pasture Property had not been transmuted and Wife did not have a special equity in the property.  Husband manifested no intent to share the Pasture Property with Wife.  Wife made no financial contributions to the Pasture Property and Husband paid for all taxes and insurance on the Property from his separate account.  Although the property had significantly increased in value, the increase was due mainly to changes in the market conditions according to the appraiser.  While the good condition of the property also added to the value, the evidence of Wife's non-financial contributions to the property is contradictory.  As the family court was in a better position to judge the credibility of the witnesses, we find the court did not err in ruling Wife had no interest in the Pasture Property. 

2.  Personal Property

Wife argues the family court erred in failing to order the return of Wife's nonmarital property that is located at the marital residence.  We agree. 

As stated above, property acquired prior to the marriage is generally considered nonmarital.  § 20-3-630(A)(2).  In addition, property acquired by either party by gift from a party other than the spouse is considered to be nonmarital.  S.C. Code Ann. § 20-3-630(A)(1) (Supp. 2010).  

On a form entitled Marital and Non-Marital Property Subject to Equitable Distribution, Wife listed seven items as "Personal property not subject to equitable distribution left at marital residence": 

Large Set of Silverware (Gift from my Daughter)

Projector and Slides (Personally mine; taken on mission trips to various countries)

Pressure Cooker (Belongs to Grace Metz)

Cuckoo Clock (Gift from my son from Germany)

Little Lamp (My son made when he was in School)

Drinking Glasses (I brought them from Ohio)

Table and 2 Chairs (I brought them from Ohio)

The family court ordered each party was to maintain ownership and possession of the household goods in his or her possession.  Husband does not contend the above listed items were in fact marital property.  However, the record is not clear that Husband has possession of all of the items on the list.  For example, Husband testified Wife left him with no tables.  To the extent the family court allowed Husband to have ownership of any items Wife acquired before the marriage or that were gifted solely to her, we find error in its ruling.  Husband should return to Wife any of these items that he, in fact, does retain in his possession. 

CONCLUSION

We affirm the family court's ruling that Wife has no interest in the Pasture Property.  However, we find the family court erred in allowing Husband to retain items of personal property that Wife acquired before the marriage or that were gifted solely to her. Accordingly, the order of the family court is

AFFIRMED IN PART AND REVERSED IN PART.

HUFF and LOCKEMY, JJ., and CURETON, A.J., concur. 

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[1] Wife was born June 5, 1926.  Husband was born December 1, 1919.