Opinion
Unpublished Opinion No. 2011-UP-479
10-26-2011
Harry M. Snipes, Appellant, v. Tammy R. Snipes, Respondent.
James D. Mosteller, III, of Barnwell, for Appellant. Mark John Devine, of Aiken, for Respondent.
THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.
Appeal From Aiken County
Peter R. Nuessle, Family Court Judge
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED
James D. Mosteller, III, of Barnwell, for Appellant.
Mark John Devine, of Aiken, for Respondent.
PER CURIAM : Harry M. Snipes (Husband) appeals the family court's final order granting a divorce to Tammy R. Snipes (Wife) on the ground of habitual drunkenness and division of the parties' assets. Husband argues the family court erred in (1) granting Wife a divorce on the ground of habitual drunkenness based on his use of prescription drugs; (2) failing to grant his motion for a continuance; and (3) including nonmarital property in the division of marital assets. We affirm in part, reverse in part, and remand.
FACTS
Husband and Wife married on September 16, 1995, and have one child together. At the time they married, Husband was thirty years old and Wife was twenty-three years old. Husband had prior experience in industrial work but was not working at the time of the divorce hearing, and Wife had a high school degree and a cosmetology license to cut hair. Wife also worked part-time for the United States Postal Service.
The child is over eighteen and lives with Wife. Wife did not seek child support payments at the divorce hearing and the issues of custody and child support payments are not being challenged by Husband on appeal.
Prior to the commencement of the divorce hearing, Husband moved to continue the case. Husband stated he fired his attorney and attempted to obtain representation from legal aid but was not able to do so. The family court noted Husband had over ninety days since the last hearing in the case to obtain another attorney and reminded Husband he had no absolute right to a free lawyer in a civil case. Husband explained he did not have any money to hire another attorney and stated he wanted to establish that he was denied legal aid. The family court proceeded to engage in a long colloquy with Husband, explaining Husband's duties in the case and denying his motion for a continuance.
At the divorce hearing, Wife testified she sought a divorce on the ground of habitual drunkenness based on Husband's addiction to prescription medication. Wife explained Husband had prescriptions for multiple pain medications because of three surgeries for injuries to his back and neck. Wife stated: "[Husband] was kind of out of it a lot of times. He could sit in a chair and just go to sleep. He could lay in the bed all day long and sleep. Sometimes he would get aggravated or mad and just take a handful of pills."
The record is not clear as to what pain medication Husband was prescribed, but Wife testified the list of medications included Oxycontin and Vicodin.
Wife explained that after Husband began taking his medication, he started to act differently, becoming mean and arguing with her about different issues. Wife alleged Husband "took too much" of the medication for a period much longer than needed to recuperate from the surgeries and appeared "drunk" a lot of the time after he took the medication but admitted on cross-examination she did not know the amount of medication prescribed by the doctors for Husband. Wife testified she spoke to Husband about his addiction "and asked [Husband] to get help, [but Husband said he] did not have a problem and that [he] had to take that medication [and] could not live without that medicine."
Wife's brother, Herbert Cook, also testified at the divorce hearing and corroborated Wife's testimony about Husband appearing intoxicated while on the prescription medication.
Regarding the marital property, Wife testified she and Husband lived in an old house on Husband's property for about a week until the utilities were connected to the mobile home she brought to the land. Wife later purchased a 1997 Fleetwood mobile home in which the family resided. Wife explained both mobile homes were placed on land owned by Husband before the marriage. Wife stated Husband also "bought a lot of things and keeps them and the yard would look like a junkyard." Wife testified she had the land and the property in the yard appraised at a value of $82,850. On cross-examination, Wife admitted some of the property in the yard, including some of "the junk cars and things" were probably owned by Husband before they were married but maintained everything became marital property because it was commingled.
The family court issued a final order granting Wife a divorce from Husband on the ground of habitual drunkenness. The family court found: "[T]he evidence of witnesses who testified for [Wife] establishes that [Husband] abuses prescription drugs and is habitually intoxicated and impaired as a result of his abuse of those drugs." Regarding the apportionment of marital property, the family court found the appraisal values assigned to the marital property were appropriate and adopted Wife's proposed division of the property awarding Husband $92,145 and Wife $56,314.62 in marital property. The family court also held: "[t]o balance the equities, [Husband] must pay the sum of $21,415.00 to [Wife]." Subsequently, Husband filed a motion to alter or amend the judgment pursuant to Rule 59, SCRCP. After a hearing, the family court denied Husband's motion. This appeal followed.
Husband represented himself during the divorce hearing but was represented by an attorney for purposes of the Rule 59, SCRCP, motion. Husband is represented by the same attorney for purposes of his appeal.
STANDARD OF REVIEW
The appellate court reviews decisions of the family court de novo. Lewis v. Lewis, 392 S.C. 381, 392, 709 S.E.2d 650, 655 (2011). The appellate court generally defers to the factual findings of the family court regarding credibility because the family court is in a better position to observe the witness and his or her demeanor. Id. The party contesting the family court's decision bears the burden of demonstrating the family court's factual findings are not supported by the preponderance of the evidence. Id.
LAW/ANALYSIS
I. Habitual Drunkenness
Husband argues the trial court erred in granting Wife a divorce on the fault ground of his habitual drunkenness. We disagree.
A divorce may be granted on the ground of "[h]abitual drunkenness; provided, that this ground shall be construed to include habitual drunkenness caused by the use of any narcotic drug." S.C. Code Ann. § 20-3-10(4) (1985). "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 v. Epperly, 312 S.C. 411, 414, 440 S.E.2d 884, 885 (1994). "[O]ne need not be an alcoholic to be guilty of habitual drunkenness. It is sufficient if the use or abuse of alcohol causes the breakdown of normal marital relations." Lee v. Lee, 282 S.C. 76, 79, 316 S.E.2d 435, 437 (Ct. App. 1984). "Habitual drunkenness is the fixed habit of frequently getting drunk; it does not necessarily imply continual drunkenness." Id. at 78-79, 316 S.E.2d at 437 (citing Rooney v. Rooney, 242 S.C. 503, 505, 131 S.E.2d 618, 619 (1963)).
In this case, Husband does not dispute he was using narcotic drugs prescribed by his physician. Wife and her brother testified Husband was frequently intoxicated because of the medication, and Husband did not refute that testimony. Wife observed that Husband "took too much" of the medication for a period much longer than needed to recuperate from his surgeries and would sometimes "grab a handful of pills" when he got aggravated or mad. Wife testified she and Husband had a good marriage in prior years and she separated from Husband because he "had become addicted to prescription medicine." Based on the evidence in the record before us, we affirm the family court's grant of divorce to Wife on the ground of habitual drunkenness. II. Continuance
Husband next alleges the family court erred in denying his request for a continuance the day of the final hearing. We disagree.
The grant or denial of a continuance is within the sound discretion of the trial court and is reviewable on appeal only when an abuse of discretion appears from the record. Moore v. Moore, 376 S.C. 467, 482, 657 S.E.2d 743, 751 (2008) (citing Bridwell v. Bridwell, 279 S.C. 111, 112, 302 S.E.2d 856, 858 (1983)). The "appellate court will not set aside a court's ruling on a motion for a continuance unless it clearly appears there was an abuse of discretion to the prejudice of the movant." Id. at 483, 657 S.E.2d at 751 (citing Townsend v. Townsend, 323 S.C. 309, 313, 474 S.E.2d 424, 427 (1996)).
The record demonstrates Husband had notice of the final hearing and had a period of ninety days in which to secure replacement counsel. He did not notify the family court prior to the hearing that he was without counsel and would seek to continue the hearing. Furthermore, Husband filed the action seeking alimony, and Wife was paying temporary alimony, which she sought to terminate. Husband actively participated in the trial and cross-examined witnesses, and although this was a final hearing, the record shows Husband obtained replacement counsel, who filed a motion for reconsideration on his behalf. Accordingly, the family court did not abuse its discretion in denying Husband's request for a continuance. III. Equitable Division
Finally, Husband contends the family court erred in including certain property in the marital estate for equitable distribution. We agree.
Husband's allegations center on three different pieces of property: (1) the land upon which the mobile homes were placed; (2) a house used briefly by the couple before they moved into the mobile homes they occupied; and (3) a collection of secondhand items purchased by Husband, including "junk cars" and other miscellaneous items.
We note Husband also raises a challenge related to his $5,000 contribution toward the 1997 Fleetwood mobile home. However, this issue is not preserved for our review because it was not raised to the family court during the hearing or in a post-trial motion. See Nicholson v. Nicholson, 378 S.C. 523, 537, 663 S.E.2d 74, 82 (Ct. App. 2008) (holding when the family court did not rule on an issue at trial and the party did not make a Rule 59(e), SCRCP, motion, the issue is not preserved for appellate review).
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Marital property is defined in section 20-3-630(A) of the South Carolina Code (Supp. 2010) as "all real and personal property which has been acquired by the parties during the marriage and which is owned as of the date of filing or commencement of marital litigation . . . regardless of how legal title is held." However, the statute also lays out five exceptions to this general rule, stating several types of property constitute nonmarital property, including "property acquired by either party before the marriage." S.C. Code Ann. § 20-3-630(A)(2).
The family court made no findings regarding whether the items at issue were marital or nonmarital although Wife testified Husband had purchased the old home and property and at least some of the junk cars prior to the marriage. Therefore, we remand the issue of equitable division to the family court for a determination of what property is included or excluded in the marital estate and equitable apportionment in light of those findings.
CONCLUSION
We affirm the family court's grant of divorce to Wife on the grounds of Husband's habitual drunkenness and we affirm the family court's denial of Husband's request for a continuance. We reverse the family court's decision with respect to equitable distribution of the parties' assets and remand for a determination of what property is included in the marital estate and equitable apportionment.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
FEW, C.J., and THOMAS and KONDUROS, JJ., concur.