June 16, 2016
From York County Robert E. Guess, Family Court Judge
S. Nichols, of Bluestein Nichols Thompson & Delgado, LLC,
of Columbia, for Appellant.
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.
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.
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
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.
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.
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.
argues the family court erred in denying her request for a
divorce on the ground of habitual drunkenness. We disagree.
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
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
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.
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
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 ...