Nelson v. Nelson

THE STATE OF SOUTH CAROLINA
In The Court of Appeals
Harrison Shelby Nelson, Appellant/Respondent,
v.
Melissa Starr Nelson, Respondent/Appellant.
Appellate Case No. 2017-000291
Appeal From Charleston County
Daniel E. Martin, Jr., Family Court Judge
Opinion No. 5678
Heard May 16, 2019 – Filed August 21, 2019
AFFIRMED
Joseph P. Cerato, of Joseph P. Cerato, P.A., of
Charleston, for Appellant/Respondent.
Alexander Blair Cash, of Rosen Rosen & Hagood, LLC,
of Charleston, for Respondent/Appellant.
THOMAS, J.: In this cross-appeal arising from an action for divorce, Harrison
Shelby Nelson (Husband) appeals the family court's final order and final amended
order. Melissa Star Nelson (Wife) appeals the family court's order granting
Husband's motion pursuant to Rule 60(b) of the South Carolina Rules of Civil
Procedure. On appeal, Husband argues the family court erred in (1) finding the
parties' property at 6 Judith Street had no mortgage; (2) valuing the property at 6
Judith Street; (3) finding Husband had a 50% ownership interest in 6 Judith Street;
(4) valuing the parties' property at 109 North Shelmore Boulevard; (5) failing to
equitably divide the parties' debt; (6) including a vehicle owned by Wife's father as
a marital asset and the loan to finance that vehicle as a marital debt; (7) making
numerous findings not supported by the record; (8) failing to credit Husband for
using the sale of proceeds from an investment property at 18 Reid Street for
marital purposes; (9) failing to equitably divide the parties' personal property; and
(10) requiring Husband to contribute to Wife's attorney's fees. In her cross-appeal,
Wife argues the family court erred in (1) finding excusable neglect existed to grant
Husband's Rule 60(b) motion; (2) causing her unfair prejudice by granting
Husband's Rule 60(b) motion; and (3) failing to find Husband was estopped from
seeking relief under Rule 60(b) due to his own bad conduct. We affirm.
FACTS/PROCEDURAL HISTORY
Husband filed this action for divorce in May 2015 after eighteen years of marriage
with Wife. The parties reached a settlement agreement regarding the custody and
visitation of their two daughters in June 2016, and tried the remaining issues of
equitable apportionment and attorney's fees in September 2016.
At the outset of the trial on the financial and property issues, Husband and Wife
stipulated each party would retain the ownership interests and liabilities to their
respective businesses, as well as the ownership interests in their business property,
and agreed the approximate values of those assets were equal for the purposes of
equitable apportionment. The remainder of the marital estate consisted
predominately of the marital home, numerous real estate investments, tax debts,
and personal property. The parties agreed the family court should apportion the
total marital estate on an equal 50/50 basis, but disputed the values of certain assets
and how the assets and liabilities should be distributed.
I. Property at 6 Judith Street
In 2007, Husband and his cousins, Hill Carter Redd and Samuel Cornelius Range
Redd (collectively, the Redds), purchased an investment property at 6 Judith Street
in Charleston for $920,000. Although only the Redds were listed on the deed to
the property, Husband admitted in his financial declarations and at trial he used his
commission from the sale of 6 Judith Street, $50,000, to purchase an interest in the
property. In his initial financial declaration, Husband claimed he had a 50%
interest in the property. However, in his subsequent financial declarations, he
claimed he only had a "contingent interest." At trial, Husband claimed he was not
sure what this interest was worth and did not know the terms of his agreement with
his partners; however, he acknowledged the Redds invested approximately
$450,000 in the property.
Wife testified Husband informed her of the $50,000 investment in 6 Judith Street
shortly after he made the decision to invest in the property. According to Wife,
Husband stated he would have "50 percent ownership in [the] property."
Additionally, Wife recalled Husband stated he would receive $800 per month to
manage the property.
Husband initially filed a sworn financial declaration indicating there was a $1.1
million mortgage on the property; however, in his subsequent declarations, he
listed the mortgage owed as "UNKNOWN." At trial, Husband testified he
believed the property was mortgaged, his partners handled the mortgage, and he
"had nothing to do with the mortgage." He also testified the $1.1 million mortgage
listed in his initial financial declaration was not correct. Husband admitted he
failed to produce any documentation of any mortgage on the property despite
Wife's attorney's request for these documents. Other than his testimony and his
initial claim of a $1.1 million mortgage, Husband did not produce evidence of a
mortgage on the property until after trial.
During Husband's cross-examination, Wife introduced the following documents
she obtained from the Charleston County Register of Mesne Conveyances's office:
a copy of the deed to the property in the name of Husband's partners, a copy of the
original mortgage, and a document showing the satisfaction of the original
mortgage. Husband objected to the introduction of these documents, arguing there
was no foundation for their introduction because he previously testified he had
never seen them before. Wife argued Husband testified he had an ownership
interest in the property and the property was mortgaged; therefore, she sought to
impeach his testimony using public records. Husband stated, "I would withdraw
[the objection] if the purpose of their being put in, your [h]onor, is for
impeachment of my client's financial declaration, I withdraw the objection."
However, when each document was subsequently introduced, Husband stated he
had no objection. After Wife introduced these documents, Husband testified he
was not aware the mortgage had been satisfied but acknowledged there was
currently not a mortgage on the property.
In his first two financial declarations, Husband claimed the property had a value of
$1 million. In his third financial declaration, Husband listed the value of the
property as "UNKNOWN." At trial, Husband acknowledged he listed the property
for sale for $1.2 million, but he did not receive any offers. However, he stated he
never listed the property for a lower price. He also admitted the property generated
roughly $87,000 of rental income per year. Husband claimed the property was in
poor condition due to lack of maintenance and testified he believed the property
was not worth more than the $920,000 he and his partners paid for it. However, he
also claimed he spent large sums of money to make repairs and improvements to
the property. Wife testified she had "no idea how much money [was] in [6 Judith
Street]" but, according to an estimate she found on the internet, she believed the
property was worth roughly $1.2 million.
The family court found Husband's testimony regarding 6 Judith Street was not
credible because he offered conflicting information in his financial declarations
and gave conflicting testimony regarding the value of the property, his ownership
interest, and the mortgage. The family court determined the property was worth $1
million and it was not mortgaged. Further, the family court found Husband and his
cousins entered into a partnership to purchase and manage 6 Judith Street as a
rental property because the evidence presented at trial reflected Husband and his
partners agreed they would receive their initial investment and split the remaining
profit in half when they sold the property. Accordingly, the family court found the
marital value of Husband's investment in the property was $300,000.
II. Property at 109 North Shelmore Boulevard (Marital Home)
Wife purchased the marital home at 109 North Shelmore Boulevard in the I'On
neighborhood of Mount Pleasant in 2004. In his initial financial declaration,
Husband claimed the property was worth $900,000; however, in his subsequent
declarations, he claimed the property was worth at least $1.13 million. Husband's
expert witness, a real estate appraiser, testified he believed the property was worth
$1.13 million. However, on cross-examination, Husband's expert acknowledged
three of the five properties he used to value 109 North Shelmore sold for prices
ranging from $938,000 to $995,000, and the other two properties had significantly
more square footage than the marital home. He also admitted that out of the
seventy recent sales in the I'On neighborhood, no houses with similar square
footage sold for over $1 million. Husband's expert acknowledged he did not use
sales of multiple properties similar in size to 109 North Shelmore, including a
home within a block of the marital home that sold for $899,000 four months before
trial.
In her financial declaration, Wife stated she believed the property was worth
$975,000. Wife also presented an expert witness, a realtor, who testified the
property had a value of between $925,000 and $955,000. Wife's expert stated the
home was "incredibly dated" compared to other homes in the area. Furthermore,
Wife's expert testified all of the comparable homes she used sold within four
months of trial and all of them sold for less than $1 million, including two
properties with nearly the same square footage as the marital home, which each
sold for less than $900,000. However, on cross-examination, Wife's expert
admitted that when she initially valued the home at $875,000, she believed the
home measured 2,800 square feet and valued the property at $312.50 per square
foot. She acknowledged the property's tax records indicated the marital home was
actually 3,313 square feet and that at her previous price per square foot, it would
have a value of just over $1.03 million.
The family court found that although both experts presented credible testimony,
Husband's expert did not rely upon many recent sales of comparable homes on the
same street. The family court noted Husband's expert acknowledged most of the
comparable home sales were for less than $1 million. Accordingly, the family
court found 109 North Shelmore had a value of $975,000.
III. Teton Ranch, LLC and Tetonas, LLC
In his financial declarations, Husband claimed he had a 25% interest in Teton
Ranch, LLC, which owned two properties in Idaho. In his first two financial
declarations, Husband claimed a net loss of $38,500 and $53,750, respectively.
However, in his final financial declaration and at trial, Husband indicated both of
the properties had been foreclosed on, there were no deficiencies, and one of the
properties had no 1099 tax liability and any 1099 liability for the other property
was unknown. Husband admitted the mortgages on the Teton Ranch, LLC's
properties were nonrecourse loans and he had no exposure to any deficiency
judgment.
In addition to Teton Ranch, LLC, Husband also claimed he had a 25% interest in
Tetonas, LLC, which owned two other properties in Idaho. Husband's initial
financial declarations indicated the properties had large negative net values.
However, his final financial declaration indicated a negative net value in Tetonas,
LLC of approximately $5,000 from the properties. Husband also claimed he owed
$13,705 in unpaid capital calls. At trial, Husband acknowledged the mortgages on
these properties were nonrecourse debts and he had no personal exposure unless he
incurred any 1099 tax liability. He also maintained he owed money for unpaid
capital calls but acknowledged he did not provide any documentation regarding
previous capital calls, expenses, and rents for Tetonas, LLC. Husband claimed he
asked the managing partner of Tetonas, LLC for the documentation but the
managing partner refused to give him the information. He later admitted the
managing partner was a friend he had known for thirty to forty years but stated
they had a falling out recently due to failed business ventures. Husband also
admitted he and the managing partner shared an office and saw each other nearly
every day.
The family court found the Teton Ranch, LLC's properties were foreclosed on
without any deficiency judgment. The family court noted Husband could be liable
for some 1099 tax liability in the future; however, the family court determined
Husband failed to present any credible evidence on what that amount would be.
Additionally, the family court found Tetonas, LLC had a negative net value of
approximately $5,000; however, because the loans were nonrecourse, the value to
Husband was effectively zero. The family court also determined Husband's
testimony regarding the alleged capital call debt to Tetonas, LLC was not credible
because he failed to provide any documentation to support his claim. Accordingly,
the family court found the net value of these properties was zero.
IV. Investment Properties in Costa Rica
Husband and Wife owned a 50% interest in three rental homes in Costa Rica. At
trial, Husband stated the property was listed for $350,000 and believed a sale
would net $300,000. He testified he owed his mother $50,000 for a loan that was
to be paid upon the sale of the Costa Rica property. Husband also claimed he
owed his mother interest on this loan, bringing the total amount he claimed was
due to his mother to $74,432. In his first two financial declarations, Husband
stated he owed his mother $50,000; however, in his final financial declaration, he
claimed the amount was $74,432. Husband's mother appeared at trial. Although
she did not testify about the loan or the Costa Rica property, she acknowledged she
regularly gave Husband substantial monetary gifts of up to $15,000 each year.
Husband claimed he incurred $28,487 in net costs from the Costa Rica property
since the filing of the divorce action. However, the records Husband used to
support this claim did not include any information on the rental income for the
properties. Further, these records showed Husband's partners in the Costa Rica
property only contributed $10,000 to cover these costs. Husband claimed he did
not have any records of the property's rental income and could not get them
because they were in Costa Rica. Husband also submitted bank records showing
various transfers to a bank in Costa Rica totaling $21,760 since he filed the divorce
action. Husband testified he typically rented out the Costa Rica property three to
four times per year at a rate of $3,000 per week.
The family court determined the Costa Rica property was worth $300,000 and
Husband and Wife's 50% interest was worth $150,000. The family court also
determined Husband's records for the property were not reliable due to the lack of
rental income and the disparity between Husband's and his partners' contributions,
which the family court found was evidence Husband was sending payments on
behalf of all of his partners. Instead, the family court relied on Husband's bank
records showing he transferred approximately $22,000 to Costa Rica to maintain
the property. The family court also relied on Husband's testimony to determine the
parties received approximately $12,000 in rental income to offset the $22,000 in
costs, leaving a balance of $10,000, $5,000 of which was Husband's responsibility
due to his 50% interest in the property.
The family court also determined Husband owed his mother $50,000 for the loan
which was to be paid from the sale proceeds of the Costa Rica property. However,
the family court did not find Husband's claim his mother would collect interest in
the loan credible and believed that even if she did, she would likely return that
money in the form of a gift.
V. Tax Debts and Other Debts
Although Husband and Wife filed joint tax returns in 2013, they filed separate
returns beginning in 2014. Just before trial, Husband produced copies of drafts for
his 2014 and 2015 tax returns. According to his draft returns, Husband owed
$7,470 in federal taxes for 2014 and $2,710 in penalties and interest for filing late.
Husband also owed $1,853 in South Carolina state taxes and $703 in interest and
penalties for filing late. Husband's draft 2015 tax returns claimed he owed $42,121
in federal taxes and $11,549 in penalties and interest for filing late. Of the $42,121
in federal taxes owed, he claimed $26,874 were from capital gains due to the sale
of properties at 51 and 18 Reid Street. However, Husband's Form 4797 ("Sales of
Business Property") from his draft 2015 return was not filled out with all of the
necessary information needed to determine his tax liability for the sale of
properties at 51 and 18 Reid Street. He also claimed to owe $6,443 in South
Carolina state taxes for 2015 and $1,918 in penalties and interest for filing late.
The family court found the late fees and interest Husband incurred were not part of
the parties' marital debt because they were incurred due to Husband's failure to file
his tax returns and pay taxes in a timely manner. The family court found the
remaining amount of Husband's 2014 taxes, $7,470, was marital debt and
apportioned to him. The family court's order did not address Husband's 2014 and
2015 South Carolina state taxes.
The family court found the capital gains tax from the sale of the Reid Street
properties in 2015 was marital debt. However, the family court took issue with
Husband's draft 2015 federal tax return because his Form 4797 was incomplete and
did not provide the details necessary to determine the taxable gain solely from the
sale of the Reid Street properties. The family court noted Husband did not call his
accountant to testify to why this form was incomplete. The family court
determined it would not use the $26,874 figure listed in Husband's Schedule D
because it was the total tax on all income, including his business income.
However, the family court noted line 29 of Husband's Schedule D was helpful for
determining the capital gains tax for the Reid Street properties. Relying on the best
evidence presented, the family court found the capital gains tax Husband incurred
from the sale of these properties was $14,783. The family court then apportioned
the 2015 capital gains tax debt to Husband.
Husband also claimed a debt of $23,671 for their children's private school tuition
and $4,400 in medical bills were marital debts and should be equitably
apportioned. The family court did not address these debts in its final order.
VI. Wife's Vehicle
Husband and Wife acknowledged Wife owned a 2012 Honda and Wife's father
took out a loan in his name to finance the purchase of the vehicle. The family
court admitted the loan document into evidence without objection. Wife testified
the car and loan were in her father's name due to her low credit score but she had
been making the payments. The family court found this vehicle and loan were part
of the marital estate and apportioned both to Wife.
VII. Personal Property
Husband and Wife owned multiple pieces of personal property at issue in this
divorce action. At trial, Husband introduced a list of seventy-five items he claimed
were in Wife's possession into evidence. He requested the family court equitably
divide the marital property and return all items of nonmarital property.
Wife introduced a proposal on how the property should be divided into evidence.
She also testified extensively about these items, stating some were already in
Husband's possession, some had been lost or destroyed, some were worth far less
than Husband believed, and others he was welcome to take. Wife testified the total
value of the personal items she wanted to keep was approximately $6,120 and the
total value of what Husband would receive or keep was approximately $10,475.
The family court determined Wife's proposed distribution gave more realistic
values to the personal property, Wife was more credible, and Wife had a better
recollection of what happened to various pieces of personal property. Accordingly,
the family court found each party would keep the personal property in their
possession, with the exception of eight items that Husband requested.
VIII. Attorney's Fees
Both Husband and Wife claimed they were entitled to attorney's fees and costs.
The family court initially determined whether attorney's fees and costs should be
awarded using the factors enumerated in E.D.M. v. T.A.M.1 First, the family court
found Husband was able to pay nearly all of his $60,000 in legal fees and costs, but
Wife had to borrow money from her father and owed approximately $52,000 in
legal fees and costs to her attorney. Second, the family court determined Wife was
the prevailing party with regards to many issues in the case, including primary
child custody, child support, and equitable apportionment of the marital estate.
The family court noted Husband made numerous false claims regarding the values
of various assets and liabilities, particularly with regard to his interest in 6 Judith
Street. Third, the family court found Wife made roughly $5,835 per month.
Husband claimed his monthly income was only $5,000; however, the family court
found his income was difficult to determine due to his lack of credibility and
inconsistent claims. The family court found Husband's income was much greater
than he claimed and determined his minimum average monthly income was
approximately $10,000. Accordingly, the family court found Husband had a
greater earning capacity than Wife. Fourth, the family court determined Wife
would not have the ability to pay her attorney's fees and maintain the marital home.
The family court reasoned it would be detrimental to Wife's and the children's
standard of living if it required her to pay attorney's fees and possibly have to sell
the marital home. Accordingly, the family court found it appropriate to award
Wife attorney's fees and costs.
Next, the family court determined the amount of attorney's fees Wife should be
awarded using the factors enumerated in Glasscock v. Glasscock.2 After a lengthy
analysis of these factors, the family court found Wife was entitled to an award of
$35,000 in attorney's fees.
1
307 S.C. 471, 476–77, 415 S.E.2d 812, 816 (1992).
2
304 S.C. 158, 161, 403 S.E.2d 313, 315 (1991).
IX. Posttrial Motions
At the conclusion of the testimony, the family court asked both parties to submit
proposed orders in lieu of closing arguments. The family court issued its final
order and decree of divorce on November 2, 2016. Husband appealed this order.
Husband filed a motion entitled "Motion to Reconsider (Rule 52(b) and Rule 59)"
on November 9, 2016; however, the motion did not contain any grounds for which
Husband sought relief. Instead, the motion referenced a memorandum in support
of the motion that would be drafted upon the receipt of the trial transcript and filed
at a later date. Husband filed and served Wife with a memorandum in support on
December 28, 2016, one day before the hearing on the motion. In response to
Husband's memorandum of support, Wife argued the family court should not
consider the memorandum because she was prejudiced by not having the grounds
for Husband's motion within ten days of the final order. Specifically, Wife
contended Husband's thirty-six page memorandum she received the day before the
hearing was untimely and prejudicial. Furthermore, she argued the motion filed on
November 9 failed to meet the requirements of Rule 7(b) of the South Carolina
Rules of Civil Procedure because the motion failed to state the grounds for which
he sought relief.
The family court agreed with Wife's position that Husband's memorandum was
untimely and prejudicial and declined to consider the memorandum in ruling on
Husband's motion to reconsider. Thus, the family court dismissed Husband's
motion to reconsider because it failed to state with particularity the grounds for his
motion to reconsider. Husband did not appeal this order.
In addition, after receiving the family court's final order, Husband discovered the
original mortgage on 6 Judith Street had been refinanced and there was still a
mortgage on the property. Husband filed a motion entitled "Motion for Relief
from Judgment or Order Pursuant to Rule 60(b)" on November 9, 2016, arguing he
was entitled to a modification of the final order based upon (1) mistake,
inadvertence, surprise, or excusable neglect; and (2) fraud, misrepresentation, or
other misconduct of an adverse party. Wife argued there was no evidence of fraud
or excusable neglect because Husband had ample opportunity to present evidence
of a mortgage on 6 Judith Street throughout the course of litigation yet failed to do
so. Accordingly, Wife asserted Husband's failure to present this information did
not amount to excusable neglect.
The family court found that although the mortgage information was knowable by
Husband and he had a duty to disclose accurate information about the property on
his financial declaration, there was excusable neglect on the part of both Husband
and Wife for presenting incomplete evidence regarding the existence of a mortgage
on 6 Judith Street. Accordingly, the family court granted Husband's 60(b) motion
and issued an amended final order including the newly discovered mortgage. After
amending the final order and accounting for the refinanced mortgage, the family
court found Husband's net equity in the property was only $62,516. Wife appealed
this order, and her appeal was consolidated with Husband's.
STANDARD OF REVIEW
"In appeals from the family court, [the appellate c]ourt reviews factual and legal
issues de novo." Simmons v. Simmons, 392 S.C. 412, 414, 709 S.E.2d 666, 667
(2011). Although an appellate court reviews the family court's findings de novo, it
is 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 v. Lewis, 392 S.C. 381, 385, 709
S.E.2d 650, 651–52 (2011).
[T]his standard does not abrogate two long-standing
principles still recognized by [South Carolina appellate]
courts during the de novo review process: (1) a trial
[court] is in a superior position to assess witness
credibility, and (2) an appellant has the burden of
showing the appellate court that the preponderance of the
evidence is against the finding of the trial [court].
Stoney v. Stoney, 422 S.C. 593, 595, 813 S.E.2d 486, 487 (2018). However, when
reviewing a family court's evidentiary or procedural rulings, the appellate court
reviews using an abuse of discretion standard. Id. at 594 n.2, 813 S.E.2d at 486
n.2; see also Ware v. Ware, 404 S.C. 1, 10, 743 S.E.2d 817, 822 (2013) ("The
decision to deny or grant a motion made pursuant to Rule 60(b), SCRCP[,] is
within the sound discretion of the trial [court].").
LAW/ANALYSIS
I. Excusable Neglect and Rule 60(b) Motion
Wife argues the family court erred in finding excusable neglect on Husband's part
and granting his Rule 60(b) motion because Husband acted in bad faith due to his
failure to produce the mortgage documents before or at trial. Additionally, Wife
argues she was unfairly prejudiced when the family court granted Husband's Rule
60(b) motion because if she knew there were still a mortgage on 6 Judith Street,
she would have requested more than a 50/50 division of the marital assets.
Furthermore, Wife contends the family court erred by failing to find Husband was
estopped by his own bad conduct from seeking relief under Rule 60(b). We
disagree.
"On motion and upon such terms as are just, the court may relieve a party or his
legal representative from a final judgment, order, or proceeding for the following
reasons: (1) mistake, inadvertence, surprise, or excusable neglect . . . [and] (3)
fraud, misrepresentation, or other misconduct of an adverse party . . . ." Rule
60(b), SCRCP. "The movant in a Rule 60(b) motion has the burden of presenting
evidence proving the facts essential to entitle him to relief." Bowers v. Bowers,
304 S.C. 65, 67, 403 S.E.2d 127, 129 (Ct. App. 1991). "In order to gain relief
under Rule 60(b)(1), SCRCP, a party must first show a good faith mistake of fact
has been made . . . ." Williams v. Watkins, 384 S.C. 319, 324, 681 S.E.2d 914, 917
(Ct. App. 2009). "In determining whether to grant relief under Rule 60(b)(1), the
court must consider the following factors: '(1) the promptness with which relief is
sought; (2) the reasons for the failure to act promptly; (3) the existence of a
meritorious defense; and (4) the prejudice to the other party.'" Rouvet v. Rouvet,
388 S.C. 301, 309, 696 S.E.2d 204, 208 (Ct. App. 2010) (quoting Mictronics, Inc.
v. S.C. Dep't of Revenue, 345 S.C. 506, 510–11, 548 S.E.2d 223, 226 (Ct. App.
2001)).
"An order or judgment pursuant to an adjudication in a domestic relations case
shall set forth the specific findings of fact and conclusions of law to support the
court's decision." Rule 26(a), SCRFC. "However, when an order from the family
court is issued in violation of Rule 26(a), SCRFC, the appellate court 'may remand
the matter to the trial court or, whe[n] the record is sufficient, make its own
findings of fact in accordance with the preponderance of the evidence.'" Griffith v.
Griffith, 332 S.C. 630, 646–47, 506 S.E.2d 526, 535 (Ct. App. 1998) (quoting
Holcombe v. Hardee, 304 S.C. 522, 524, 405 S.E.2d 821, 822 (1991)).
We find the family court did not err in granting Husband's Rule 60(b) motion
because there was excusable neglect due to a good faith mistake on Wife's part.
See Williams, 384 S.C. at 324, 681 S.E.2d at 917 ("In order to gain relief under
Rule 60(b)(1), SCRCP, a party must first show a good faith mistake of fact has
been made . . . ."). Initially, we note Husband had numerous opportunities to
retrieve the mortgage information, either by contacting to his partners or
conducting a record search, and disclose it to Wife and the family court, yet he
failed to do so. We also note the family court made numerous findings as to
Husband's lack of credibility throughout its final order and amended order,
including noting his "outright fabrications and attempt[s] to downplay his actual
net worth" in relation to the property. However, Wife introduced an incomplete
property records search at trial showing the satisfaction of the original mortgage on
the property but not showing the new mortgage that replaced the original mortgage
when the property was refinanced. We find Wife's mistake was in good faith
because the record contains no evidence this oversight was due to anything other
than the new mortgage not appearing in Wife's property records search.
Additionally, we agree with the family court that "[t]o find otherwise would result
in a windfall to [Wife] to which she may not otherwise be entitled."
Furthermore, we find an analysis of the factors for determining whether to grant a
motion made pursuant to Rule 60(b)(1) supports the family court's decision to
grant Husband's motion. See Rouvet, 388 S.C. at 309, 696 S.E.2d at 208 ("In
determining whether to grant relief under Rule 60(b)(1), the court must consider
the following factors: '(1) the promptness with which relief is sought; (2) the
reasons for the failure to act promptly; (3) the existence of a meritorious defense;
and (4) the prejudice to the other party.'" (quoting Mictronics, 345 S.C. at 510–11,
548 S.E.2d at 226)). We note the family court did not make specific findings with
regards to the Rouvet factors in its order granting Husband's Rule 60(b) motion.
See Rule 26(a), SCRFC ("An order or judgment pursuant to an adjudication in a
domestic relations case shall set forth the specific findings of fact and conclusions
of law to support the court's decision."). However, we find the record is sufficient
to make our own findings in accordance with the preponderance of the evidence.
See Griffith, 332 S.C. at 646–47, 506 S.E.2d at 535 ("[W]hen an order from the
family court is issued in violation of Rule 26(a), SCRFC, the appellate court 'may
remand the matter to the trial court or, where the record is sufficient, make its own
findings of fact in accordance with the preponderance of the evidence.'" (quoting
Holcombe, 304 S.C. at 524, 405 S.E.2d at 822)).
We find the first factor, the promptness with which relief is sought, is close;
although Husband could have discovered and disclosed the mortgage prior to or at
trial by contacting to his partners or conducting a property records search, he
timely moved for relief under Rule 60(b) when he discovered the existence of the
new mortgage. Next, we find Husband's failure to act promptly by obtaining and
disclosing the mortgage information prior to or at trial weighs in Wife's favor.
However, we find the existence of the refinanced mortgage is a meritorious
defense favoring Husband. Finally, although Wife would suffer some prejudice
due to Husband's failure to produce the mortgage information at an earlier stage of
litigation, we find not granting the Rule 60(b) motion would result in a windfall to
Wife to which she would not otherwise be entitled; therefore, we find this factor
weighs in favor of Husband. As a whole, we find these factors, particularly the
existence of a meritorious defense and limited prejudice to Wife, weigh in favor of
granting relief.
Additionally, we find Wife's argument that Husband should be estopped from
seeking relief due to his own bad faith conduct is not preserved for review. See
S.C. Dep't of Transp. v. First Carolina Corp. of S.C., 372 S.C. 295, 301, 641
S.E.2d 903, 907 (2007) ("[A]n issue cannot be raised for the first time on appeal,
but must have been raised to and ruled upon by the trial [court] to be preserved for
appellate review." (quoting Wilder Corp. v. Wilke, 330 S.C. 71, 76, 497 S.E.2d
731, 733 (1998))). Although Wife raised the issue of estoppel in her return to
Husband's Rule 60(b) motion, the family court did not address this argument in its
order granting Husband's motion for relief and Wife did not raise it again in a
motion to reconsider.
Based on the foregoing, we affirm the family court's order granting Husband's
motion for relief under Rule 60(b).3
II. Value of 6 Judith Street
Husband argues the family court erred in setting the value of 6 Judith Street
because no competent evidence was presented to support the property having a
value of $1 million. We disagree.
"The family court has broad discretion in valuing the marital property." Pirri v.
Pirri, 369 S.C. 258, 264, 631 S.E.2d 279, 283 (Ct. App. 2006). "A family court
may accept the valuation of one party over another, and the court's valuation of
3
Because we affirm the family court's order granting Husband's Rule 60(b)
motion, we find this issue of whether the family court erred in finding there was no
mortgage on 6 Judith Street in its original final order is moot. See Curtis v. State,
345 S.C. 557, 567, 549 S.E.2d 591, 596 (2001) ("An appellate court will not pass
on moot and academic questions or make an adjudication where there remains no
actual controversy.").
marital property will be affirmed if it is within the range of evidence presented."
Id. "[A] property owner is ordinarily competent to offer testimony as to value of
his property." Cooper v. Cooper, 289 S.C. 377, 379, 346 S.E.2d 326, 327 (Ct.
App. 1986). Although an appellate court reviews the family court's findings de
novo, it is 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, 392 S.C. at 385, 709 S.E.2d at 651–
52.
We find 6 Judith Street had a value of $1 million. First, we agree with the family
court's finding that Husband's testimony regarding the value of this property was
not credible. See Lewis, 392 S.C. at 385, 709 S.E.2d at 651–52. Husband gave
conflicting testimony at trial, claiming the property was in poor condition and had
not been well maintained, while also claiming to have spent large sums of money
in order to keep the property in good condition. Additionally, Husband's financial
declarations offered conflicting information regarding the value of this property;
his initial declarations stated the property was worth $1 million, while his final
declaration listed the value of the property as "UNKNOWN." Accordingly, we
find Husband's testimony regarding the value of this property was not credible.
Additionally, we find the valuation of $1 million falls within the range of evidence
presented. See Pirri, 369 S.C. at 264, 631 S.E.2d at 283 ("A family court may
accept the valuation of one party over another, and the court's valuation of marital
property will be affirmed if it is within the range of evidence presented.").
Husband testified he believed the property was worth $920,000 and Wife testified
she believed the property was worth over $1.2 million. Accordingly, after de novo
review, we find 6 Judith Street had a value of $1 million and that value falls within
the range of evidence presented at trial.
III. Husband's Interest in 6 Judith Street
Husband argues the family court erred in finding a 50% partnership interest in 6
Judith Street because it was not in either party's name; the titled owners, the Redds,
were not given an opportunity to be heard or made parties; and the ownership of
the property was not pled in the pleadings. He claims no credible testimony was
given that he and the Redds entered into a partnership.
Wife contends Husband's arguments that the family court erred by failing to
include his investment partners are not preserved for review. Additionally, Wife
argues the record contains sufficient evidence, including her testimony and
Husband's initial financial declaration, to support the family court's finding that
Husband entered into a partnership with the Redds to purchase the property.
First, we find Husband's argument that the family court erred by failing to include
his investment partners in the action is not preserved for review. See First
Carolina Corp. of S.C., 372 S.C. at 301, 641 S.E.2d at 907 ("[A]n issue cannot be
raised for the first time on appeal, but must have been raised to and ruled upon by
the trial [court] to be preserved for appellate review." (quoting Wilder Corp., 330
S.C. at 76, 497 S.E.2d at 733). Husband did not object to any of Wife's testimony
about the investment arrangement of 6 Judith Street. Although Husband raised the
issue in his proposed final order submitted in lieu of closing arguments, the family
court did not address this argument in its final order or amended final order.
Furthermore, Husband failed to raise the issue in a proper posttrial motion.4
Accordingly, we find Husband's arguments related to the inclusion of the Redds in
the equitable apportionment action are not preserved for our review.
To the extent Husband's argument regarding the ownership of 6 Judith Street is
preserved, we disagree with his assertion the record contained no credible evidence
to support the family court's finding. Wife testified Husband informed her of the
investment in 6 Judith Street and his $50,000 contribution to the purchase of the
property with his partners. According to Wife, Husband stated he would have a
"50 percent ownership in [the] property." Additionally, Wife recalled Husband
stated he would receive $800 per month to manage the property. Husband never
objected to this testimony. Husband merely claimed he had some sort of
"contingent interest" in the property, but he failed to provide any support or
documentation for this claim. Further, the family court found Husband's claim of a
"contingent interest" was not credible. See Lewis, 392 S.C. at 385, 709 S.E.2d at
651-52 (stating an appellate court reviews the family court's findings de novo, it is
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
4
Although Husband filed a motion to reconsider pursuant to Rules 52 and 59,
SCRCP, the family court dismissed the motion without considering the merits of
his claims due to Husband's late filing and service of his memorandum in support.
Because this motion was dismissed and the family court did not address his
arguments, we find this motion was insufficient to preserve many of his arguments
for appeal. See First Carolina Corp. of S.C., 372 S.C. at 301, 641 S.E.2d at 907
("[A]n issue cannot be raised for the first time on appeal, but must have been raised
to and ruled upon by the trial [court] to be preserved for appellate review."
(quoting Wilder Corp., 330 S.C. at 76, 497 S.E.2d at 733).
comparative weight to their testimony). We find the evidence supports the family
court's finding regarding Husband's ownership interest in 6 Judith Street.
Accordingly, we affirm the family court's order on this ground.
IV. Value of 109 North Shelmore Boulevard
Husband argues the family court erred in valuing 109 North Shelmore at $975,000
because Wife's expert improperly calculated the square footage of the home,
leading to an undervaluation of the home. He also contends the family court failed
to consider the home was on a larger lot and in a more desirable location than other
homes in the community. We disagree.
We find this property had a value of $975,000. Husband's expert witness testified
he believed the property was worth as much as $1.13 million and Wife's expert
testified she believed the property was worth approximately $950,000. We note
both parties' experts had flaws in their valuations of the property. Wife's expert
calculated the square footage of the home in her initial valuation to be significantly
smaller than the actual square footage. Although Wife's expert testified the
property was worth $950,000, the valuation of the home at her initial price per
square foot using the correct square footage would have been over $1.03 million.
However, Husband's expert admitted he did not use numerous other comparable
sales in the same neighborhood as 109 North Shelmore, including some sales of
less than $1 million.
Despite these issues with both expert witnesses' testimonies, we find the record
contains sufficient evidence to support a valuation of less than $1 million. Wife's
expert testified multiple comparable homes sold for less than $1 million, including
one home within a block of the property with nearly the same square footage as the
marital home that sold for $899,000. Although Husband argues 109 North
Shelmore was in a more desirable location and is on a larger lot than the rest of the
properties in the neighborhood, we find the family court's valuation takes these
factors into account. Accordingly, after de novo review, we find 109 North
Shelmore had a value of $950,000 and that value falls within the range of evidence
presented at trial. See Pirri, 369 S.C. at 264, 631 S.E.2d at 283 ("A family court
may accept the valuation of one party over another, and the court's valuation of
marital property will be affirmed if it is within the range of evidence presented.").
V. Equitable Division of Debt
Husband argues the family court erred by failing to equitably divide the debt of the
parties. Specifically, Husband contends the family court ignored a negative
balance of roughly $5,000 from his real estate investment in Tetonas, LLC and the
outstanding 1099 tax liability for one of the Teton Ranch, LLC's properties. He
also asserts the family court ignored evidence of outstanding capital call debt for
these investments. Additionally, Husband claims the family court erroneously
assigned him all tax debt from 2013, 2014, and 2015 because this tax debt was
marital debt and should have been divided equally. He also contends the family
court erred in finding the cost to maintain the Costa Rica properties was $5,000
when he presented evidence the cost to maintain the properties was over $28,000.
Husband also avers the family court ignored several other debts Husband incurred
in his Costa Rica investment. Finally, Husband generally asserts throughout his
argument the family court made numerous findings not supported by the evidence.
Initially, Wife contends many of Husband's arguments regarding specific debts are
not preserved for review because these debts were not mentioned in the final order
and Husband failed to properly raise them in his motion to reconsider. Wife argues
the family court did not err by failing to equitably divide the marital debt because
the family court noted on multiple occasions Husband's testimony lacked
credibility, specifically his claims regarding many marital assets and debts. Wife
also argues Husband received the valuable marital assets associated with the debts
the family court allocated to him.
"Marital debt, like marital property, must be specifically identified and apportioned
in equitable distribution." Wooten v. Wooten, 364 S.C. 532, 546, 615 S.E.2d 98,
105 (2005). "Marital debt should be divided in accord with the same principles
used in the division of marital property and must be factored into the totality of
equitable apportionment." Pirayesh v. Pirayesh, 359 S.C. 284, 300, 596 S.E.2d
505, 514 (Ct. App. 2004). "When a debt is incurred after the commencement of
litigation but before the final divorce decree, the family court may equitably
apportion it as a marital debt when it is shown the debt was incurred for marital
purposes, i.e., for the joint benefit of both parties during the marriage." Wooten,
364 S.C. at 547, 615 S.E.2d at 105.
In apportioning the marital estate, the family court "must give weight in such
proportion as it finds appropriate" to "liens and any other encumbrances upon the
marital property, which themselves must be equitably divided, or upon the separate
property of either of the parties, and any other existing debts incurred by the parties
or either of them during the course of the marriage." S.C. Code Ann. § 20-3-
620(B) (2014); Wooten, 364 S.C. at 546, 615 S.E.2d at 105. "[T]he words 'in such
proportion as it finds appropriate,' as used in [section 20-3-620], accord much
discretion to the [family court] in providing for the payment of marital debts as a
consideration in the equitable division of the marital estate." Hickum v. Hickum,
320 S.C. 97, 103, 463 S.E.2d 321, 324 (Ct. App. 1995). "On review, [the
appellate] court will look to the fairness of the overall apportionment." Id.5
Initially, we find some of Husband's arguments are not preserved because they
were not ruled upon by the family court in its final order or raised in a proper
posttrial motion. See First Carolina Corp. of S.C., 372 S.C. at 301, 641 S.E.2d at
907 ("[A]n issue cannot be raised for the first time on appeal, but must have been
raised to and ruled upon by the trial [court] to be preserved for appellate review."
(quoting Wilder Corp., 330 S.C. at 76, 497 S.E.2d at 733)). Specifically, we find
Husband's arguments relating to debts for tuition for private school, medical bills,
and Husband's 2014 and 2015 South Carolina state tax debts are not preserved.
However, we find his arguments related to Teton Ranch, LLC; Tetonas, LLC; the
Costa Rica property; and his federal tax debts are preserved for review and are
addressed below.
A. Teton Ranch, LLC and Tetonas, LLC
We agree with the family court's finding that Husband had no liabilities from Teton
Ranch, LLC. The purchase of both properties held by Teton Ranch, LLC were
financed with nonrecourse mortgages, and they were foreclosed on with no
deficiency judgments; therefore, Husband had no personal liability for these debts.
Although Husband testified he believed he could possibly incur 1099 tax liability
due to these foreclosures, he admitted no 1099 tax liability had been assessed and
he was unsure what amount could be assessed. Because Husband was not
personally liable for these debts due to the nonrecourse nature of the loans and any
potential 1099 tax liability was speculative, we find the family court correctly
determined Husband's interest in Teton Ranch, LLC had a net value of zero.
We also agree with the family court's finding that Husband had no liabilities from
Tetonas, LLC. Like with Teton Ranch, LLC, all of the mortgages on the properties
Tetonas, LLC held were nonrecourse, and Husband admitted at trial he would have
no personal exposure. Husband also claimed he owed over $13,705 in unpaid
capital calls for this property. However, other than images of a few checks
indicating payments for some past capital calls, Husband failed to provide any
5
We note that Hickum, decided prior to Stoney, was decided using an abuse of
discretion standard of review. See Hickum, 320 S.C. at 97, 463 S.E.2d at 324;
Stoney, 422 S.C. at 595, 813 S.E.2d at 487. In light of our supreme court's
direction in Stoney, we review the fairness of the overall apportionment de novo.
documentation of capital calls, expenses, and rental income for Tetonas, LLC.
Although Husband claimed this was because the managing partner refused to give
him the documents, he later admitted the managing partner was a longtime friend
he shared an office with and saw nearly every day. We agree with the family
court's finding that Husband's claims regarding this alleged capital call debt and his
inability to retrieve the documents supporting these claims were not credible. See
Lewis, 392 S.C. at 385, 709 S.E.2d at 651–52 (stating an appellate court reviews
the family court's findings de novo, it is 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).
Because Husband was not personally liable for these debts due to the nonrecourse
nature of the loans and he failed to produce any credible documentation for his
alleged capital call debt, we find the family court correctly determined Husband's
interest in Tetonas, LLC had a net value of zero.
B. Costa Rica Property
We agree with the family court's finding that Husband incurred a loss of $5,000 for
maintaining the Costa Rica property after the divorce action was filed.
Specifically, we agree with the family court's finding that Husband's records for
this property were not reliable. See Lewis, 392 S.C. at 385, 709 S.E.2d at 651–52.
These records lack any indication of rental income from this property and show a
large disparity between Husband's contributions of over $28,000 to maintain the
property compared to his equal partners' contributions of approximately $10,000.
We find this disparity supports the family court's finding that Husband appeared to
be sending many of the payments to maintain this property on behalf of all of the
partners. Accordingly, we find relying on Husband's bank account transfers was
the most reliable way to determine Husband's cost in maintaining the property in
this case. We further find Husband's testimony regarding the rental history and
rate supports the family court's finding that Husband received approximately
$12,000 of rental income to offset his approximately $22,000 in costs. Thus,
$10,000 in costs remained to be split evenly between the partners, meaning
Husband was responsible for $5,000. Accordingly, we affirm the family court's
finding as to these costs.
We also agree with the family court's finding that Husband would not have to pay
interest to his mother on the $50,000 she loaned him. Husband produced a loan
document, which listed the interest rates and total due as of June 2016. However,
given Husband's mother's testimony that she regularly provided him with
substantial monetary gifts each year and the family court's findings regarding
Husband's credibility on this interest amount and throughout the case, we agree
with the family court there was a strong likelihood Husband's mother will either
not require him to pay this interest or return it to him as a gift shortly after he pays
it. See Lewis, 392 S.C. at 385, 709 S.E.2d at 651–52. Accordingly, we affirm the
family court's finding that the amount Husband owed on this loan was $50,000.
C. Tax Debts
We agree with the family court's valuation and apportionment of Husband's 2014
and 2015 federal tax debts. Initially, we agree that Husband's tax penalties and
interest for 2014 and 2015 are not marital debt. See Wooten, 364 S.C. at 547, 615
S.E.2d at 105 ("When a debt is incurred after the commencement of litigation but
before the final divorce decree, the family court may equitably apportion it as a
marital debt when it is shown the debt was incurred for marital purposes, i.e., for
the joint benefit of both parties during the marriage."). We find Husband's
penalties and late fees were incurred due to his own negligence in not filing his tax
returns on time and was not done for the joint benefit of the parties.
Next, we agree with the family court's finding that Husband's 2015 capital gains
tax debt was $14,783. We find Husband's claim the family court should have
valued his 2015 capital gains tax at $53,670 is without merit. First, that figure
included Husband's penalties and interest for 2015. Second, the remaining $42,121
in federal taxes was Husband's total federal tax liability for 2015, not just his
capital gains. We agree with the family court's assessment that Husband's
Schedule D was not reliable because it was mostly incomplete and did not contain
any information about the Reid Street properties. However, his Schedule D
worksheet provided some direction. The total taxable income indicated on this
worksheet was listed as $26,874; however, this figure included all of Husband's
capital gains and qualified dividends, including income from his business. We find
the best evidence in the record indicating Husband's capital gains from 2015 was
the figure of $14,783 on line 29 of Husband's Schedule D worksheet. Accordingly,
we affirm the family court's findings regarding the 2014 and 2015 tax debts and
their equitable apportionment.
D. Summary of Debts
Based on the foregoing, we find the family court's valuing and equitable
apportionment of the debts as a whole was accurate and fair given the credible
evidence presented at trial. Hickum, 320 S.C. at 103, 463 S.E.2d at 324 ("[T]he
words 'in such proportion as it finds appropriate,' as used in [section 20-3-620],
accord much discretion to the [family court] in providing for the payment of
marital debts as a consideration in the equitable division of the marital estate."); id.
("On review, [the appellate] court will look to the fairness of the overall
apportionment.").6 Accordingly, we affirm the family court's apportionment of the
parties' debts.
VI. Vehicle in Wife's Father's Name
Husband argues the family court erred in finding a vehicle titled in Wife's father's
name was a marital asset and the loan taken out to finance the vehicle was a
marital debt. We find this issue is not preserved for appellate review. See First
Carolina Corp. of S.C., 372 S.C. at 301, 641 S.E.2d at 907 ("[A]n issue cannot be
raised for the first time on appeal, but must have been raised to and ruled upon by
the trial [court] to be preserved for appellate review." (quoting Wilder Corp., 330
S.C. at 76, 497 S.E.2d at 733)). Husband failed to object to any testimony
regarding the vehicle or evidence of the loan at trial, did not mention the vehicle at
all in his proposed final order, and did not raise this issue in a proper posttrial
motion. Accordingly, we find this issue is unpreserved.
VII. Proceeds from Sale of 18 Reid Street
Husband argues the family court erred by failing to credit him for using the sale of
the proceeds from 18 Reid Street for marital purposes. Husband claims he used
$23,000.88 in proceeds from 18 Reid Street to pay for various marital debts. We
find Husband's argument is not preserved for review. See id. ("[A]n issue cannot
be raised for the first time on appeal, but must have been raised to and ruled upon
by the trial [court] to be preserved for appellate review." (quoting Wilder Corp.,
330 S.C. at 76, 497 S.E.2d at 733)). Husband addressed this issue in his proposed
final order submitted in lieu of closing arguments; however, the family court only
addressed the issue regarding 18 Reid Street by stating, "The Husband received
$50,000 from the sale of 18 Reid Street, and has had the sole use of those funds
during the pendency of the case." We find this insufficient to preserve this issue
for appeal. Further, Husband failed to raise this issue in a proper posttrial motion.
Accordingly, we find this issue is not preserved for review.
VIII. Equitable Division of Personal Property
Husband argues the family court erred by failing to equitably divide the parties'
personal property because he only received eight of the seventy-five items set forth
in the marital property list.
6
See supra note 5.
We agree with the family court's determination that Wife's proposed distribution
gave more realistic values to the personal property, Wife was more credible, and
Wife had a better recollection of what happened to various pieces of personal
property. See Lewis, 392 S.C. at 385, 709 S.E.2d at 651–52 (stating an appellate
court reviews the family court's findings de novo, it is 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). Although Husband received significantly fewer items than Wife, he
received a distribution with a greater value. Specifically, Wife testified the items
she received under her proposal, which the family court adopted, were worth
approximately $6,120, while the items Husband received were worth $10,475. We
find this distribution is equitable. Accordingly, we affirm the family court's
distribution of personal property.
IX. Attorney's Fees
Husband argues the family court erred in awarding Wife $35,000 in attorney's fees
because he was the prevailing party in many of the child custody issues that the
parties settled, neither party had an excess of income, and both parties received
beneficial results. We disagree.
"[A]ttorney's fees may be assessed against a party in an action brought in the
family court." Patel v. Patel, 359 S.C. 515, 533, 599 S.E.2d 114, 123 (2004). "In
determining whether an attorney's fee should be awarded, the following factors
should be considered: (1) the party's ability to pay his/her own attorney's fee; (2)
[the] beneficial results obtained by the attorney; (3) the parties' respective financial
conditions; [and] (4) [the] effect of the attorney's fee on each party's standard of
living." E.D.M., 307 S.C. at 476–77, 415 S.E.2d at 816. The reasonableness of
attorney's fees should be determined by the following factors: "(1) the nature,
extent, and difficulty of the case; (2) the time necessarily devoted to the case; (3)
professional standing of counsel; (4) contingency of compensation; (5) beneficial
results obtained; (6) customary legal fees for similar services." Glasscock, 304
S.C. at 161, 403 S.E.2d at 315. "[O]n appeal, an award for attorney's fees will be
affirmed so long as sufficient evidence in the record supports each factor."
Jackson v. Speed, 326 S.C. 289, 308, 486 S.E.2d 750, 760 (1997).
Initially, we disagree with Husband's argument that both parties received beneficial
results. Although Husband did receive significant time with the children pursuant
to the parties' child custody settlement and the agreement included a provision he
had sought preventing Wife from moving the children from the Charleston area,
Wife received primary custody of both children. The agreement also contained a
provision stating the parties' oldest daughter was not required to visit Husband due
to their strained relationship. In addition, Wife received the marital home in the
apportionment of marital assets. Finally, as discussed above, we find Wife
prevailed as to the valuation of many of the marital assets, specifically 6 Judith
Street and 109 North Shelmore.
Although Husband claims neither party had an excess of income, we find this fact,
even if true, does not alter the analysis of the E.D.M. factors. According to the
parties' fee affidavits, Husband had been able to pay most of his attorney's fees,
while Wife had a large outstanding balance. Additionally, we find Husband had a
significantly higher income than Wife. Wife made roughly $5,835 per month.
Husband claimed his monthly income was only $5,000; however, as the family
court found, his income was difficult to determine due to his lack of credibility and
inconsistent claims. We agree with the family court that Husband's income was
much greater than he claimed and find the family court's determination his
minimum average monthly income was approximately $10,000 was reasonable.
Based on this income disparity, we find Husband was in a significantly better
financial position than Wife. Further, we agree with the family court that requiring
Wife to pay her attorney's fees would have a far greater impact on her standard of
living than it would have on Husband's if he was required to pay Wife's attorney's
fees. Accordingly, we find the analysis of the E.D.M. supports an award of
attorney's fees to Wife.
Husband does not contest any of the Glasscock factors in his brief, other than the
beneficial result obtained, which we addressed above. Further, we agree with the
family court's findings as to these factors and find the record contains sufficient
evidence to support these remaining factors. Accordingly, we affirm the family
court's award of $35,000 in attorney's fees to Wife.
CONCLUSION
Based on the foregoing, the family court's order granting Husband's Rule 60(b)
motion and the amended final order are
AFFIRMED.
HUFF and KONDUROS, JJ., concur.