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Miteva v. Robinson

Court of Appeals of South Carolina

November 2, 2016

Tzvetelina Miteva, Appellant,
v.
Nicholas Robinson, Respondent. Appellate Case No. 2014-002484

          Heard June 16, 2016

         Appeal From York County Robert E. Guess, Family Court Judge

         AFFIRMED AS MODIFIED

          John S. Nichols, of Bluestein Nichols Thompson & Delgado, LLC, of Columbia, for Appellant.

          Thomas Franklin McDow, IV and Erin K. Urquhart, of McDow and Urquhart, LLC, and Jennifer M. Creech, of the Law Office of Jennifer M. Creech, LLC, all of Rock Hill, for Respondent.

          WILLIAMS, J.

         Tzvetelina Miteva (Wife) appeals the family court's divorce decree, arguing the family court erred in: (1) denying her request for a divorce on the ground of Nicholas Robinson's (Husband) habitual drunkenness; (2) identifying and apportioning the marital estate on a fifty-fifty basis; and (3) requiring her to pay Husband's attorney's fees. We affirm as modified.

         FACTS

         Wife and Husband married on November 25, 2007. After almost four years of marriage, Wife filed for divorce on August 30, 2011. The parties had no children during the marriage, but Wife had a minor child and Husband had two adult children from their respective prior marriages. In Wife's complaint, she sought a divorce on the ground of Husband's habitual drunkenness and requested equitable division of the marital assets and attorney's fees. Husband answered and counterclaimed, denying Wife's allegations and seeking equitable division of the marital estate and attorney's fees.

         The family court held a final hearing on May 8 and 9, 2013. At the final hearing, Husband and Wife submitted evidence and testimony to substantiate their claims to the family court, specifically addressing each party's claim to several properties that were bought, improved, and sold during their marriage. The family court subsequently issued its final order and denied Wife a divorce on the ground of habitual drunkenness. Because Wife failed to prove by a preponderance of the evidence that she was entitled to a divorce on this ground, the family court granted both parties a divorce on the ground of one-year's separation.

         The family court also held the following: (1) the parties transmuted certain properties that were bought and sold during the marriage; (2) Husband's retirement account and mobile homes were nonmarital property; and (3) the family court did not have jurisdiction to divide real property that was not titled in the name of either party. The family court concluded Wife's removal of $115, 521 from marital funds was financial misconduct and assigned that amount to Wife. After considering the factors for apportioning marital property as required by section 20-3-620(B) of the South Carolina Code (2014), the family court apportioned 50% of the marital estate to Wife and 50% to Husband. Finally, the family court required Wife to pay all of Husband's attorney's fees, which totaled $27, 561.29. Wife submitted a motion to alter or amend the family court's ruling, which the family court denied. This appeal followed.

         STANDARD OF REVIEW

         "In appeals from the family court, this [c]ourt reviews factual and legal issues de novo." Simmons v. Simmons, 392 S.C. 412, 414, 709 S.E.2d 666, 667 (2011). "[T]his [c]ourt has jurisdiction to find facts in accordance with its view of the preponderance of the evidence." Epperly v. Epperly, 312 S.C. 411, 414, 440 S.E.2d 884, 885 (1994). Although the appellate court retains the authority to make its own findings of fact, "we recognize the superior position of the family court . . . in making credibility determinations." Lewis v. Lewis, 392 S.C. 381, 392, 709 S.E.2d 650, 655 (2011). Therefore, the appellant bears the burden of convincing this court that the family court committed error or the preponderance of evidence is against the court's findings. Id.

         I. HABITUAL DRUNKENESS

         Wife argues the family court erred in denying her request for a divorce on the ground of habitual drunkenness. We disagree.

         "Section 20-3-10(4) of the South Carolina Code . . . provides that habitual drunkenness is grounds for divorce. Habitual drunkenness is the fixed habit of frequently getting drunk; it does not necessarily imply continual drunkenness." Lee v. Lee, 282 S.C. 76, 78-79, 316 S.E.2d 435, 437 (Ct. App. 1984). "In order to prove habitual drunkenness, there must be a showing that the abuse of alcohol caused the breakdown of the marriage and that such abuse existed at or near the time of filing for divorce." Epperly, 312 S.C. at 414, 440 S.E.2d at 885.

         Wife testified Husband was unemployed for half of the marriage. Moreover, Wife claimed, while Husband was unemployed, he would get drunk every day and abuse prescription medication. Wife testified Husband's alcohol consumption and drug use worsened throughout the marriage and caused the marriage to deteriorate.

         Wife introduced four police reports to support her testimony. A police report dated April 17, 2010, indicated Wife called police but reported everything was "10-4." On December 5, 2010, Wife again called police and said "Husband ha[d] gone crazy, " but she then stated she did not need help. On April 9, 2011, police responded to a call from Wife, but when they arrived, Wife claimed she was fine and would not provide a reason for calling. At the hearing, Wife stated Husband hid in the basement and instructed her to tell police everything was okay. In the final police report, dated October 21, 2012, Wife reported Husband walked around their house naked in front of her daughter. However, on cross-examination, Wife acknowledged she separated from Husband in 2011, but she waited until October 2012 to file the final police report. Wife claimed she did not know the process for making an allegation, but she then conceded she had contacted police on prior occasions. Additionally, Wife admitted that, on April 30, 2009, she wrote a note indicating if something happened to her, she would like her daughter to stay with Husband.

         Zlatka Miteva, Wife's mother, testified she lived in Bulgaria, but stayed with the parties for a few months every year. She stated Husband had a problem with alcohol before the parties married. Zlatka claimed Husband got drunk every day and took prescription medication, which caused him to shake and become aggressive.

         Several other witnesses testified regarding Husband's alcohol consumption. Husband's ex-wife, Nasrin Robinson, and one of Husband's daughters, Sophie Robinson, testified they had observed Husband consume alcohol, but they had never seen him drunk. Additionally, both claimed they had never seen Husband become angry when drinking. Nasrin admitted she only saw Husband several times a year. Nasrin and Sophie both acknowledged Husband paid for Sophie's undergraduate and graduate school tuition. Don Pierman, Husband's friend, testified he had ...


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