Crawford v. Crawford
Crawford v. Crawford
Opinion of the Court
In this domestic action, John W. Crawford, the husband, appeals a lien placed on his federal retirement benefits to secure payment of alimony, the distribution of certain items of personal property, the award of attorney’s fees to the wife, the trial judge’s factual findings, the order requiring him to remove a storage building from the wife’s property, and the valuation of marital property held by the wife.
The parties were married on September 29, 1957, and have two emancipated children. The parties resided in Florence County, South Carolina until their separation. In May of 1992, the husband told the wife he was going to retire from the Department of Defense on August 28, 1992, and they were going to move to Burlington, North Carolina. The parties planned to live for two years in a trailer in North Carolina which the husband had renovated, and eventually planned to move into a house that they would build. The parties sold their house. In May of 1992, the wife moved to North Carolina, but the husband remained employed in Florence and visited the wife on weekends. The wife gave up her job as a cafeteria worker for a middle school in Florence. The wife became employed at a lower rate of pay as a cafeteria worker in Burlington, North Carolina. The parties opened a bank account in North Carolina and deposited the money from the sale of the house.
The parties were divorced on February 18, 1994, at which time the trial judge equally divided the marital assets granting each party assets totaling $88,434.00. The trial judge awarded the wife alimony in the amount of $500 a month and attached a lien on the husband’s retirement fund in the amount of $12,000 as security for payment of alimony. The lien is to dissolve five years from the date of the first payment of alimony. In distributing the marital assets, the trial judge awarded the husband the storage building and required him to remove it from the wife’s property in North Carolina, leaving the land leveled and clean. The trial judge also awarded the wife attorney’s fees and costs of $4,350.
The husband moved to alter, amend, set aside or vacate the judgment alleging the trial judge: (1) misapprehended the ability of the storage building to be removed, (2) inadvertently failed to make a disposition of certain items of personal property including the Noritake China, the Emmett Kelly Clowns, the Madam Alexander Doll collection, and the gas pack (the collectibles), and (3) misapprehended the true value of the assets held by the wife. After reconsideration, the trial judge affirmed his previous decision concerning the storage building. In terms of the disposition of the collectibles, the trial judge stated the initial order was correct with respect to the Madam Alexander Doll Collection and the gas pack. The trial judge amended the initial order and found the Emmett
The husband appeals the lien, the award of attorney’s fees to the wife, the failure of the trial judge to make specific factual findings, the order requiring him to remove the storage building from the wife’s property, the distribution of the collectibles, and the valuation of marital property held by the wife. The husband failed to preserve the issues of attorney’s fees, the trial judge’s failure to make specific findings, and the lien. As to the attorney’s fees, the husband argues the trial court erred in awarding attorney’s fees to an out-of-state attorney. At the hearing, the wife introduced the attorney’s fees without objection from the husband. The husband also failed to object to the introduction of the wife’s valuation of assets. Finally, the husband failed to object to the wife’s introduction of the issue of security for alimony during the hearing.
The husband argues the trial judge erred in finding the collectibles nonmarital property. Marital property is that real and personal property acquired by the spouses during the marriage which is owned by them at the date of filing of marital litigation. S.C. Code Ann. § 20-7-473
The husband also argues the trial judge erred in requiring him to remove the storage building. We agree. The trial judge has broad discretion in equitably apportioning the marital estate and his distribution will not be disturbed absent an abuse of discretion. Murphy v. Murphy, 319 S.C. 324, 461 S.E. (2d) 39 (1995). The trial judge valued the storage building in the husband’s portion of the equitable distribution at $10,000. The storage building is located on the wife’s family property. The land was leveled and graded, a cement floor installed, and the building wired for electricity. To remove the building and level the land will require the husband to virtually destroy the value of the building. We find the building is a permanent fixture on the wife’s family property and should have been awarded to the wife. See Creative Displays, Inc. v. South Carolina Highway Dep’t, 272 S.C. 68, 248 S.E. (2d) 916 (1978) (the criteria for determining whether an item becomes a fixture includes mode of attachment, character of the structure, the intent of the parties, and the relationship of the parties). The storage building improves the value of the wife’s property if left alone, yet may be worthless if removed. Accordingly, we find the trial judge abused his discretion in awarding the building to the husband, and remand for the trial judge to reconsider the equitable distribution in light of this opinion.
Affirmed in part, reversed in part, and remanded.
The wife argues pleadings in family court must be liberally construed. The wife is apparently referring to Rule 12 of the former Family Court Rules which became effective July 1,1977 but were repealed September 1, 1988 by enactment of the South Carolina Rules of Family Court. See Rule 2(d), SCRFC. There is no such equivalent rule in the current Rules of Family Court. Moreover, former Rule 12 was never construed to allow family courts to grant relief not contemplated in the pleadings. See, e.g., Loftis v. Loftis, 286 S.C. 12, 331 S.E. (2d) 372 (Ct. App. 1985) (although Family Court Rule 12 requires pleadings to be liberally construed in family court, this rule cannot be expanded to permit the award of relief not contemplated by the pleadings or the evidence).
Dissenting Opinion
dissenting in part:
I must respectfully dissent to so much of the majority’s opinion that affirms the lien place against the husband’s federal retirement benefits. The majority holds that because the husband did not object to the introduction of evidence regarding security for the payment of future alimony or make a post-trial motion regarding same, he is now precluded from raising an objection to the trial court’s order.
The wife never requested the furnishing of security in her pleadings, nor did she move to amend her pleadings to conform to the proof to request security. The court’s support for its award is found in the following colloquy between the wife and her attorney:
Q. Okay. Now, Mrs. Crawford, had your husband said anything to you about what he would do if he did not like the outcome of this hearing?
A. He told me he would not — he would not pay alimony. That if he didn’t like it he would go to Florida.
Q. Should the Court decide, and it’s up to the Judge you understand to make any provision for alimony, do you want any safeguards in regard to what your husband has said he would do? (Emphasis added.)
A. Yes, sir.
On cross-examination, the husband’s counsel asked the wife when the husband made the statement. She replied it occurred a month after the separation. The husband’s counsel then asked the wife whether she thought her concerns were legitimate in view of the fact the husband had voluntarily paid alimony for over a year prior to the hearing. The wife answered. “I’m concerned about it.”
Initially, I disagree the husband is precluded from raising the issue of security at this time because he made no contemporaneous objection at trial to the above testimony of the wife. This testimony and a review of the transcript simply do not reflect the wife ever requested the court provide for the posting of security for the payment of alimony pursuant to S.C. Code Ann. § 20-3-130(D) (Supp. 1995). There was no way
S.C. Code Ann. § 20-3-130(D) permits the court to make “provision for security for the payment of the support including, but not limited to, requiring the posting of money, property, and bonds.” Additionally, § 20-7-420(22) empowers the family court to require “a person ordered to support another to give security by a written undertaking that he will pay the sums ordered.” However, our court has refused to enforce requirements in divorce decrees that required a husband to provide insurance coverage as security for the payment of future alimony payments in the absence of special or exceptional circumstances. Hickman v. Hickman, 294 S.C. 486, 366 S.E. (2d) 21 (Ct. App. 1988); Hardin v. Hardin, 294 S.C. 402, 365 S.E. (2d) 34 (Ct. App. 1987). I see no special or exceptional circumstances in the facts of this case to justify the trial court’s departure from the usual rule of not requiring security for the payment of alimony. The wife has simply failed to carry her burden of showing circumstances to justify the imposition of security for the payment of future alimony. In any case, the amount of the lien bears no relationship to the risk presented by the nonpayment of alimony in view of uniform support enforcement laws in effect in both South Carolina and Florida. See S.C. Code Ann. § 20-7-1315 et. seq. (Supp. 1995) and Fla. Stat. Ann. § 88.011 et. seq. (West 1987 & Supp. 1996).
Finally, I disagree with the majority’s view that the husband was required to make a Rule 59(e) motion to preserve the issue for review. It seems to me inequitable that the wife, who made little effort to put the husband on notice by her pleadings or her testimony that she was requesting security for the payment of alimony by way of a lien against the husband’s retirement, should now be insulated from protest by the husband by a technical application of the rules. In any event, I do not read the case law as requiring a Rule (59(e) motion to preserve the issue for review. It is well settled that
Reference
- Full Case Name
- Vivian L. CRAWFORD v. John W. CRAWFORD
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- Published