In Thornton, Court of Appeals mostly affirms decisions on equitable distribution and fees

The October 23, 2019, Court of Appeals opinion in Thornton v. Thornton mostly affirms the family court’s decision on issues of equitable distribution and fees.

In Thornton, Husband filed for an adultery divorce after he became suspicions of Wife’s relationship with a co-worker. Custody was highly contested and required the services of a guardian ad litem and forensic custody consultant. At trial, the family court granted Husband a divorce on the ground of adultery, awarded Husband primary legal and physical custody of the parties’ children, attempted to equitably divide the marital estate on a 50/50 basis, denied Wife’s requests for attorney’s fees, made Wife pay sixty-seven percent of the guardian’s and the forensic consultant’s fees, and made Wife reimburse Husband his private investigator fees. After her motion for reconsideration was denied, Wife appealed.

Except, potentially, on the division of Husband’s pension, Wife obtained minimal relief from the Court of Appeals on equitable distribution issues. Wife argued that a $27,000 loan which Husband had obtained around the time of their separation, but not told her about, should not be treated as a marital debt. The Court of Appeals affirmed the family court’s finding that this debt was marital, noting Husband had used the loan to pay down marital debts and had made payments on the loan during the litigation. It further noted Wife presented no evidence to rebut the presumption that the debt was marital.

Wife appealed the apportionment of Husband’s 401k. The family court equally divided the net value of the 401k but then made Wife responsible for half of the 401k loan. Wife correctly argued that this essentially debited her twice for the value of the loan and the Court of Appeals corrected the family court’s math error.

Wife appealed the family court’s valuation of a camper. At trial both parties testified to the value of the camper (Wife valued it at $16,955; Husband valued it at between $9,000 and $10,000) but presented no evidence to corroborate their valuations. In valuing the camper, the family court averaged the parties’ valuations. The Court of Appeals held that doing so was error but affirmed the valuation anyway as “within the range of evidence presented.” A simple question of Husband as to whether Wife could keep the camper at a $10,000 valuation might have gotten Wife more money but (at least from my reading of trial transcripts) few attorneys think to ask what I believe is an obvious question.

Wife argued the family court failed to divide the equity in the marital home and a debt to Verizon, but the Court of Appeals held that the family court’s final order did consider these items in its equitable distribution award.

Wife argued the family court should not have placed a fixed dollar value on Husband’s pension (and then award her half that value). The Court of Appeals held that the pension value could not be determined until the pension fully vested and awarded Wife one-half of the marital portion of the pension–apparently to be divided through a Qualified Domestic Relations Order.

Wife appealed issues related to custody and child support. However by the time of oral argument the children were emancipated and Wife acknowledged these issues were now moot.

Wife argued that the family court should not have granted Husband a fault divorce on the ground of adultery but should have granted her a no-fault divorce based upon one year’s separation. Wife argued that she had not committed adultery. However, from the Court of Appeals’ opinion, it appears her argument was actually that she didn’t begin committing adultery until after the parties’ separation. Further, from reading the opinion, it appears there was substantial evidence of inclination and opportunity–the Court of Appeals found this evidence “clear and positive.” Thus it affirmed the fault based divorce.

The Court of Appeals affirmed the family court’s denial of Wife’s attorney fee request. While Wife’s income was lower than Husband’s, Husband achieved beneficial results at trial. Further the Court of Appeals noted Wife sought custody despite the “unwavering desire” of what had to be older teens to live with Husband. The Court of Appeals found Wife’s pursuit of custody involved additional discovery and discovery motions, thus adding to the parties’ fees.

The Court of Appeals also affirmed the family court’s decision to make Wife pay sixty-seven percent of the guardian’s and forensic evaluator’s fees. It rejected Wife’s claim that the guardian’s fee was excessive and noted the guardian had given the parties a discount on some of her fees. Wife argued the guardian expended an unreasonable amount of time but also acknowledged that “the dispute was complex and contentious.” The Court of Appeals thus affirmed the amount of the guardian’s fees.

It further affirmed the sixty-seven percent apportionment of these fees. The Court of Appeals noted Wife’s unreasonable position regarding custody was a factor in the size of these fees. If further cited Wife’s uncooperative conduct towards the guardian and Wife’s own requests for the guardian to review numerous documents as increasing the guardian’s fee, were a basis to affirm this division.

Finally, the Court of Appeals affirmed the decision to make Wife reimburse Husband’s private investigator fees, as these fees were reasonably incurred in proving Wife’s adultery.

Thornton does not present any truly novel issues but there a few useful lessons to be gleaned. First, it appears an unequal apportionment of guardian’s fees and related fees will be affirmed if justified. Second, it appears defined benefit pensions cannot be divided by attempting to put a present value on the pension unless both parties agree to divide them this way. Finally, it appears the family court cannot merely average the parties’ uncorroborated valuations of personal property to come up with its own value–but the family court likely won’t get reversed if the valuation is reasonable.

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