Domestic Relations – Appeals – Standard of Review – De Novo – Equitable Distribution – Valuation – Expert Fees

Lewis v. Lewis (Lawyers Weekly No. 010-070-11, 13 pp.) (John W. Kittredge, J.) (Jean Hoefer Toal, Ch.J., joined by John W. Kittredge, J., concurring) (Costa M. Pleicones, J., dissenting) Appealed from Williamsburg County Family Court. (R. Wright Turbeville & George M. McFGaddin Jr., JJ.) On writ of certiorari to the Court of Appeals. S.C. S. Ct.  Click here for the full-text opinion.

Holding: Our de novo review of the family court’s ruling convinces us that the family court reached the correct decisions as to valuation of the marital home and as to taxing expert witness fees to the respondent-husband.

We reverse our Court of Appeals’ decision, which reversed the family court on these issues.

The family court is a court of equity. S.C. Const. Art. V, ¤ 5 provides in relevant part that our appellate jurisdiction in cases of equity requires that we “review the findings of fact as well as the law.”

This constitutional provision was adopted as article V, ¤ 4 of the Constitution of 1895. Shortly thereafter, we interpreted this provision and held that “it may now be regarded as settled that this court may reverse a finding of fact by the circuit court [in a case of equity] when appellant satisfies this court that the preponderance of the evidence is against the finding of the circuit court.” Finley v. Cartwright, 55 S.C. 198, 33 S.E. 359 (1899).

This language served as the forerunner to the often-quoted language that an appellate court may take its own view of the preponderance of the evidence. Our standard of review, therefore, is de novo. Our modern-day usage of the term “abuse of discretion” does not comport with our constitutionally authorized standard of review.

This court and our Court of Appeals generally sustain family court findings of fact, notwithstanding our constitutional imprimatur for de novo review. The tendency to affirm family court findings of fact may be traced to the superior position of the trial judge to determine credibility and the appellant’s burden to satisfy the appellate court that the preponderance of the evidence is against the finding of the trial court.

We have recognized the family court’s discretion in valuing marital property and in effecting a division of marital property that is equitable under the circumstances. This acknowledgement of discretion should not be construed as an abandonment of our authority to make our own findings of fact.

The family court’s factual findings will be affirmed unless the appellant satisfies this court that the preponderance of the evidence is against the finding of the family court.

Here, petitioner retained an expert real estate appraiser to render an opinion on the value of the parties’ former marital residence, a plantation home in Williamsburg County.

Without objection, the appraiser assigned a value of $800,000. The appraiser provided detailed evidence supporting his methodology and selection of comparable properties.

Petitioner additionally introduced the appraiser’s comprehensive report into evidence without objection. Respondent offered only cursory valuation evidence and focused almost exclusively on disputing the appraiser’s value.

Petitioner contends the family court acted within its discretion when it accepted the appraiser’s value of $800,000. We agree.

We have reviewed the record, under our de novo review, and find evidence to support the $800,000 value. Beyond a superficial presentation for a substantially lower value, respondent elected to approach the valuation issue by challenging the appraiser’s valuation.

Under the facts presented, we reject respondent’s contention that the appraiser’s valuation is not entitled to weight. Respondent has failed to demonstrate error in the family court’s valuation. Therefore, we decline to alter the factual finding of the family court.

A party cannot sit back at trial without offering proof, then come to this court complaining of the insufficiency of the evidence to support the family court’s findings.

The family court ordered respondent to pay petitioner $23,066 for expert witness fees.

The decision of whether to award expert witness fees, like the decision to award attorney fees, rests within the sound discretion of the family court. The family court found the various experts credible and accepted their valuations. Moreover, the court noted that the experts’ valuations were material to the relief petitioner sought and obtained.

We further note the large disparity in the parties’ incomes-respondent makes $24,000 per month, while petitioner makes $436 per month. We concur in the family court’s allocation of expert witness fees. The contrary decision of the Court of Appeals is reversed.

Reversed.

Concurrence

(Toal, Ch.J.) I write separately to note my disagreement with the dissent’s contention that the standard of de novo appellate review of facts in an equity case changes when this court reviews a case pursuant to a grant of a writ of certiorari, rather than on appeal. The dissent would hold that, when we review equitable actions pursuant to a writ of certiorari, we may only correct errors of law or findings of fact that are wholly unsupported by the evidence.

In numerous equitable matters before this court pursuant to a grant of a writ of certiorari, the court has applied a de novo standard of review.

Our standard of review in a particular case depends on the nature of the underlying action and has little to do with the semantics concerning the method by which the case reaches the court.

In an appeal from the family court before this court pursuant to a grant of a writ of certiorari, where the action is equitable in nature, this court may find facts in accordance with its own view of the preponderance of the evidence. To hold otherwise would convert all equitable matters before this court on a writ of certiorari into matters of law, which result is not only contrary to longstanding precedent, but is also in derogation of our state constitution.

Dissent

(Pleicones, J.) As I find that the Court of Appeals committed no error of law, I would dismiss the writ of certiorari as improvidently granted.

This case is before this court by virtue of our issuance of a writ of certiorari to review two issues in the Court of Appeals decision: (1) the Court of Appeals’ reversal of the family court’s determination of the value of the martial home, and (2) the Court of Appeals’ reversal and modification of the family court’s award of expert witness fees to petitioner. Our review on certiorari is confined to an examination of the decision of the Court of Appeals for errors of law or for findings which are wholly unsupported by the evidence.

This case requires us to directly address, for the first time, the consequences of Rule 242, SCACR, which provides that appellate review by the Supreme Court of decisions of the Court of Appeals is by certiorari.

That certiorari and appeal are different methods is recognized by the Constitution as well as by statute. If the method of review is by certiorari, then case law dictates that review is limited to review of errors of law, including findings wholly unsupported by the evidence. On the other hand, when the court’s review is by appeal, then the scope of review is governed by the nature of the action, i.e. whether it is at law or in equity.

The General Assembly provided that there would be no appeal from a decision of the Court of Appeals, and that review of those decisions by this court, if any, would be by discretionary review. S.C. Code Ann. ¤ 14-8-210.

I do not seek to alchemize equity into law, but rather to logically apply our constitution, our statutes, and our precedent to the novel question of what our scope of review is on certiorari to the Court of Appeals.

The Court of Appeals’ decision reversing the family court’s order with regard to valuation of the marital estate should only be overturned if based on an error of law or if wholly unsupported by the evidence. By my reading, the Court of Appeals reversed and remanded the case because it found the family court committed an error of law by automatically accepting the expert’s opinion.

I can find no error of law in the Court of Appeals assessment of the evidence or in its decision to defer to the family court by remanding the case for further proceedings.

In reversing the Court of Appeals, the majority finds evidence to support the family court’s valuation and therefore “decline[s] to alter the factual finding of the family court.” As explained above, in my view, the majority’s analysis fails to address the issue before this court, namely whether the Court of Appeals erred in reversing the family court.

Finally, I note that, in support of its decision, the majority also cites cases for the proposition that “a party cannot sit back at trial without offering proof, then come to this Court complaining of the insufficiency of the evidence to support the family court’s findings.” In my opinion, such cases are inapplicable to the instant case.

Respondent disputed the valuation by the wife’s expert, offered comparable properties, and stated his own opinion as to what the home was worth.

In my view, the Court of Appeals committed no error of law in reversing and remanding the family court’s order. I would therefore dismiss the writ of certiorari as improvidently granted.