November 12, 2014.
From Orangeburg County Peter R. Nuessle, Family Court Judge
Michael Taylor, of Taylor/Potterfield, and Peter George
Currence, of McDougall & Self LLP, both of Columbia, for
Charles H. Williams, of Williams & Williams, of
Orangeburg, for Respondent Theodore D. Stoney Jr.
Bruce Clark, of Donald B. Clark, LLC, of Charleston, and
James B. Richardson Jr., of Columbia, for Respondent Richard
S.W. Stoney Sr.
marital litigation, Lori Dandridge Stoney (Wife) contends the
family court erred in (1) permitting Theodore D. Stoney Jr.
(Brother) to intervene or, in the alternative, failing to
control the extent of this intervention; (2) denying
Wife's motion to reopen on the basis of newly discovered
evidence; (3) imputing income of only $100, 000 per year to
Richard S.W. Stoney Sr. (Husband); (4) failing to award Wife
alimony; (5) failing to make a proper child support
determination; (6) failing to require that Husband maintain
life insurance/other security; (7) erroneously apportioning
the marital property in several respects; (8) failing to find
Wife has a special equity in certain businesses; (9)
declining to hold Husband in contempt; (10) failing to grant
Wife a divorce on the ground of adultery; and (11) failing to
award Wife attorney's fees. We reverse and remand for a
October 12, 1996, Husband and Wife married in Berkeley
County. Prior to the marriage, the parties entered into a
prenuptial agreement. The parties have one child together
beginning of the marriage, Husband and Wife practiced law
together; however, Wife began her own practice in 1997.
Around this time, the parties opened a restaurant called the
Boathouse at Breach Inlet (BHBI) on the Isle of Palms, and
Husband eventually stopped practicing law to focus on the
practice of law also became subordinate to the family's
needs and operation of the parties' business
was very successful from the time it opened, and it became
the source from which Husband financed his other ventures.
Husband purchased four other restaurants and various
businesses during the course of the marriage, making
"loans" from BHBI to the new entities. These
businesses were managed by Husband's company, Crew
couple's second restaurant was the Boathouse at East Bay
Street (BHEB) in downtown Charleston. Although BHEB broke
even, Husband closed the restaurant in January 2009. As of
December 31, 2008, BHEB had a net asset value of negative
$141, 048. Husband and Brother jointly owned the real
property on which BHEB was located.
2003, the couple opened the Boathouse at Lake Julian (BHLJ)
in Asheville, North Carolina, which closed in July 2008. As
of December 31, 2008, BHLJ had a net asset value of negative
$1, 297, 939, which included an allocation of $474,
792.78 of a Carolina First/DI Carolinas consolidation
loan. In 2004, the couple purchased Carolinas, an existing
restaurant located on Exchange Street in downtown Charleston,
which they subsequently renovated. As of December 31, 2008,
Carolinas had a net asset value of $89, 539. Husband sold
Carolinas in January 2010 for over $550,
Additionally, Husband advanced funds and assisted a
third-party with opening Choto, a restaurant in Knoxville,
February of 2009, the parties opened their final restaurant,
the Boathouse at Ellis Creek (BHEC), which burned to the
ground one month later. Husband received over $850, 000 in
insurance proceeds during the first year the parties were
separated; however, he did not use this money to rebuild the
restaurant. Instead, these funds were used to satisfy
obligations to other creditors and business partners. This
account was drained by the time of trial. In his testimony,
Husband explained, "every dime that I received for Ellis
Creek was used to offset the massive amount of debt we had,
and I believe that the forensic accountants have well covered
that fact. . . . I am doing everything I can to rebuild Ellis
Creek." Throughout the trial, Husband referred to
"robbing Peter to pay Paul" to keep creditors at
bay and allow certain businesses to continue operating.
started three additional businesses shortly after Wife filed
for divorce: Amen Street Fish & Raw Bar, J & S Fish,
LLC, and Rice Market.
April 23, 2009, Wife filed an action for divorce seeking sole
custody of Child, child support, alimony, equitable division,
and other relief. By consent order dated May 15, 2009, the
family court approved a change of venue from Charleston
County to Orangeburg County. That same day, the family court
approved a consent order sealing the record.
18, 2009, Husband filed an answer and counterclaim, seeking
joint custody of Child, enforcement of a prenuptial
agreement, equitable division of the marital property and
debt, and certain other relief. In addition, Husband sought
the imputation of income to Wife and to pay reasonable child
support pursuant to the South Carolina Child Support
10, 2009, Wife filed a reply and counterclaim, admitting she
had signed a prenuptial agreement, but alleging it had been
lost. On this same date, the Honorable Anne Gue Jones entered
a temporary order. This temporary order adopted an agreement
titled, "Consent Order Regarding Certain Child Issues,
" which, among other things, awarded custody to Wife and
prohibited Husband from exposing Child to his paramours. The
other issues raised remained contested. The court granted
Wife exclusive use and possession of the couple's
condominium in Charleston, and required Husband to pay Wife
approximately $22, 000 per month for Wife and Child's
expenses. On February 26, 2010, a supplemental temporary
order was issued, relieving Husband of certain obligations
required by the July 10, 2009 temporary order.
January 5, 2010, Brother filed a motion to intervene to
protect his interests in certain real property, business
concerns, and debts he asserts he is owed. The court granted
Brother's motion to intervene by order dated February 22,
2010, finding "[Brother]'s interest in this action
outweighs any privacy interest that [Wife] asserts. . . .
[T]he interests of [Brother] and the property which is the
subject of this action cannot be adequately protected because
of the [Husband]'s tenuous financial condition."
March 4, 2010, Brother filed a third-party complaint,
requesting, among other things, a determination by the court
that his loans to Husband (and to the parties on behalf of
Husband) constituted marital debt. Husband answered
Brother's complaint on March 4, 2010, admitting all of
Brother's claims and joining in the relief sought by
Brother. Wife answered on March 29, 2010, asserting that she
had insufficient information to admit or deny the
allegations. On August 2, 2010, the family court issued a
consent order relieving Husband's counsel. From this
point through the two-week trial, Husband acted pro se.
the pendency of this action, Husband was held in willful
contempt with regard to four petitions and one supplemental
petition for rules to show cause, and an additional rule
remains unresolved. Specifically, Wife initially filed two
petitions for rules to show cause (Rule 1 and Rule 2a), and a
supplemental petition (Rule 2b). Rule 1, Rule 2a, and Rule 2b
were resolved by order dated February 25, 2010, in which the
family court found Husband in willful contempt for failing
"to make payments under the Temporary Order, while he
had funds to pay for other personal expenses on his
filed a third rule to show cause (Rule 3) against Husband on
January 11, 2010, regarding a criminal domestic violence
situation involving Brother and Husband that resulted in
physical injury to Wife in Child's presence. On March 29,
2010, the family court found Husband to be in willful
contempt. Additionally, the court required counseling for
Husband and Child, appointed a parenting coordinator, and
authorized Wife to tape her phone conversations with Husband.
filed two additional petitions for rules to show cause (Rule
4 and Rule 5). In Rule 4, issued on June 29, 2010, Wife
alleged that Husband failed to pay her regime fees, Wife and
Child's uncovered medical/dental expenses, Child's
private school expenses, and certain credit card obligations.
In Rule 5, issued on October 8, 2010, Wife alleged Husband
exposed Child to his paramour in violation of a specific
restraining order. Both Rule 4 and Rule 5 were resolved by
order dated January 6, 2011, in which the family court again
held Husband in willful contempt. Husband was sentenced to
ninety days, suspended upon payment of the required expenses
mentioned above, as well as a payment of $3, 000 in
attorney's fees to Wife's counsel.
motions, including Husband's January 25, 2011 motion to
declare contempt purged, were resolved by order dated March
24, 2011. In the March 24th order, the family court accepted
Wife's agreement that Husband could purge his contempt
sentence, based upon his assertion that he had made
arrangements for support payments, as well as Husband's
payment of the $3, 000 in attorney's fees previously
ordered. In that same order, the court denied Husband's
motion to sell or pledge up to ten percent of his interest in
BHBI as well as Wife's motion to either purchase BHBI or
be awarded complete control over the day-to-day operations of
the business. In a separate order, the family court required
Husband and Wife to each contribute $5, 000 toward a joint
court-appointed CPA by March 25, 2011.
two-week trial was held March 28-April 1, 2011, and May
23-27, 2011. When the trial started, Wife had complied with
her $5, 000 obligation to the CPA, but Husband had not. Wife
filed another petition for rule to show cause (Rule 6) on May
10, 2011, alleging Husband had failed to pay the previously
ordered CPA fees and attorney's fees. Despite
Wife's requests, these contempt issues were never
resolved. On June 17, 2011, after the trial concluded, but
before the final order was issued, Wife filed a motion to
reopen the case based on newly discovered evidence.
18, 2011, the family court entered an interim order,
addressing the divorce only. Despite Wife's request for a
divorce on the ground of adultery, the court granted
dissolution on the ground of one year's continuous
separation. On September 22, 2011, Wife moved to alter or
amend the interim order pursuant to Rules 52, 59, and 60,
SCRCP, and Rule 2(a), SCRFC. The family court denied this
motion by order dated October 15, 2011. Wife appealed on
November 18, 2011.
25, 2011, the family court emailed counsel for Brother,
requesting that he submit two proposed orders to the court:
one order denying Wife's motion to reopen and another
setting out the trial court's final order in the case on
all remaining issues. Instead, Brother's counsel drafted
a single order (Final Order), incorporating both the family
court's denial of Wife's motion to reopen as well as
its rulings on the remaining property and support issues.
receipt of the Final Order, Wife's counsel emailed and
wrote the family court and opposing counsel, requesting an
opportunity to respond to Brother's proposed order.
However, the family court ignored this request and without
making any changes to Brother's submitted proposed order,
the court issued its Final Order on September 6, 2011.
September 22, 2011, Wife timely filed a motion to alter or
amend the Final Order, which the family court denied by order
dated November 30, 2011. Wife appealed that Final Order on
January 6, 2012. The two appeals have subsequently been
the family court err in allowing Brother to intervene and in
failing to control the extent of Brother's intervention?
the family court err in denying Wife's motion to reopen
the case as a result of newly discovered evidence?
Did the family court err in imputing income of only $100, 000
per year to Husband?
the family court err in failing to award Wife alimony?
the family court err in its child support determination?
the family court err in failing to require Husband to
maintain life insurance and other security for alimony and
Did the family court err in identifying, valuing, and
apportioning marital assets and debts?
Did the family court err in failing to find Wife has a
special equity in businesses funded with marital funds by
Husband after the date of filing?
the family court err in failing to hold Husband in contempt?
the family court err in failing to grant Wife a divorce on
the ground of adultery?
the family court err in failing to award Wife attorney's
fees and litigation costs?
family court is a court of equity" Lewis v.
Lewis, 392 S.C. 381, 386, 709 S.E.2d 650, 652 (2011). In
appeals from the family court, the appellate court reviews
factual and legal issues de novo. Smmons v. Simmons,
392 S.C. 412, 414, 709 S.E.2d 666, 667 (2011). "De novo
review permits appellate court fact-finding, notwithstanding
the presence of evidence supporting the trial court's
findings." Lewis, 392 S.C. at 390, 709 S.E.2d
at 654-55 (emphasis omitted). "However, this broad scope
of review does not require an appellate court to disregard
the factual findings below or ignore the fact that the trial
judge is in the better position to assess the credibility of
the witnesses." Pinckney v. Warren, 344 S.C.
382, 387, 544 S.E.2d 620, 623 (2001). "Moreover, the
appellant is not relieved of his burden of convincing the
appellate court the trial judge committed error in his
findings." Id. at 387-88, 544 S.E.2d at 623.
Accordingly, we will affirm the decision of the family court
unless its decision is controlled by some error of law or the
appellant satisfies the burden of showing the preponderance
of the evidence actually supports contrary factual findings
by this court. See Lewis, 392 S.C. at 389-90, 709
S.E.2d at 654-55.