Tina G. McMillan, Respondent,
Jimmy D. McMillan, Appellant. Appellate Case No. 2014-002151
June 6, 2016
From Spartanburg County Dale Moore Gable, Family Court Judge
Wyche Bannister and Luke Anthony Burke, both of Bannister,
Wyatt & Stalvey, LLC, of Greenville, for Appellant.
Christopher David Kennedy and N. Douglas Brannon, both of
Kennedy & Brannon, P.A., of Spartanburg, for Respondent.
divorce action between Jimmy D. McMillan (Husband) and Tina
G. McMillan (Wife), Husband appeals the family court's
final order of divorce, arguing the family court erred in
finding: (1) Husbands business that was created prior to the
marriage was transmuted into marital property; (2)
Husband's businesses that were created during the
marriage were marital property; (3) Husband did not have a
nonmarital interest in his retirement accounts; and (4)
Wife's jewelry that was acquired during the marriage was
nonmarital property. Husband also argues the family court
erred in equitably apportioning the marital estate without
weighing the statutory factors and sealing the record without
consideration of the necessary factors. We affirm in part,
reverse in part, and remand.
and Wife married on October 4, 1996. At the time of the final
divorce hearing, Husband was sixty-six years old, and Wife
was forty-eight years old. The parties did not have any
children together. Wife left the marital residence on
December 5, 2011. On December 31, 2011, Wife filed a
complaint against Husband seeking an order of separate
support and maintenance and requesting equitable division of
their marital property. On January 23, 2013, Husband filed an
amended answer and counterclaim seeking a divorce on the
grounds of adultery.
family court held a hearing on November 12, 13, and 14, 2013.
The parties presented evidence about several businesses
Husband created with his partner Buddy Carter. In 1977,
Husband and Carter started McMillan-Carter, Inc., a grading
company. During the marriage, Husband and Carter formed
Carmac, LLC in 1996 and Tractor Factor, LLC in 2001 as
holding companies for McMillan-Carter's real estate and
equipment. Husband and Carter also formed Reynolds Utilities,
LLC in 2005; Peloton, Inc. in 2006; and Panacea Biofuels, LLC
testified he did not intend for McMillan-Carter or any of the
other companies to be marital property. Wife testified they
"always lived out of" the businesses during the
marriage. The parties also presented evidence about their
other real and personal property, including their marital
home at 171 Tucapau Road, Husband's retirement account,
and Wife's jewelry.
March 5, 2014, the family court entered a final order
granting the parties a divorce on the statutory ground of
adultery. The family court found, "Throughout this
marriage, [Husband] built his business holdings significantly
to include multiple businesses and business properties.
[Husband] worked on a regular and daily basis to expand his
businesses and the marital estate. [Wife] worked in the
marital businesses and cared for the home." The family
court identified four parcels of real estate owned by
Husband's businesses; these parcels were appraised for a
total of $1, 571, 000 with $580, 140.17 of debt.
Additionally, the family court identified certain personal
property owned by the businesses that had marital value,
including Husband's fifty percent share in business
vehicles valued at $26, 481 and oil containers valued at
$125, 000. The family court found, "The business
properties listed above, both real and personal[, ] are
marital property and subject to equitable division." The
family court also found Wife's jewelry "[was a gift]
and not subject to equitable distribution." The family
court found the total value of the marital estate was $1,
629, 468.41. It apportioned to Husband "possession and
ownership of all of his business interests to include real
and personal property identified at [the] trial." After
apportioning the parties' remaining real and personal
property between Husband and Wife, it ordered Husband to pay
Wife $595, 263.20 to balance the equitable division
of the marital estate. The family court further ordered that
the record be sealed "[g]iven the vast amount of
financial information that was introduced into evidence in
this matter and the fact that much of this information deals
with [Husband's] business partner[, ] who is not a party
to this action[, ] and the fact that [Wife] is a sitting
Magistrate Court Judge."
March 24, 2014, Husband filed a Rule 59, SCRCP, motion to
alter or amend the family court's order, which the family
court denied. This appeal followed.
the family court err by finding the parties' work for
Husband's companies constituted a basis for transmutation
when they were properly compensated for their work?
the family court err by finding McMillan-Carter was
transmuted into marital property when the company was created
prior to the marriage and no marital funds or efforts were
used to increase equity in the company?
the family court err by finding Carmac and Tractor Factor
were marital property when the companies were acquired in
exchange for nonmarital property?
the family court err by finding Reynolds, Panacea, and
Peloton were marital property when the vast majority of funds
contributed to the companies were nonmarital funds?
the family court err by finding Husband did not have a
nonmarital interest in his retirement accounts when Husband
presented evidence he had funds in the retirement accounts
prior to the marriage and no contrary evidence was presented?
the family court err by finding Wife's jewelry acquired
during the marriage was nonmarital property?
the family court err by dividing the marital estate without
giving weight to the fifteen statutory factors the court is