In The Court of Appeals

Angela C. Linder,        Respondent,


Harris M. Linder,        Appellant.

Appeal From Aiken County
C. David Sawyer, Jr., Family Court Judge

Unpublished Opinion No. 2004-UP-239
Submitted March 8, 2004 – Filed April 12, 2004


Gregory P. Harlow, of Aiken, for Appellant.

Sylvia W. Westerdahl, of Aiken, for Respondent.

PER CURIAM:  This is a divorce action between Harris M. Linder and Angela C. Linder.  Husband appeals the family court’s order, alleging the court erred in refusing to apportion personal property, in requiring Husband to pay a portion of Wife’s non-marital debt, in considering Wife’s motion to alter or amend, and in failing to include Wife’s pension in the apportionment of marital property.  We affirm in part, reverse in part, and remand. [1]


Husband and Wife married in 1986 and separated in 2001.  In its final order, filed on March 18, 2002, the family court granted a divorce on the ground of one-year continuous separation and awarded Wife the marital home and Husband a motorcycle.  The court also found $16,400 in unsecured marital debt and apportioned the debt according to income, ordering Husband to pay 39% of the marital debt and Wife to pay 61%.  However, the family court refused to apportion the personal property and referred the parties to magistrate’s court to divide the property. 

Husband timely filed a motion to alter or amend the judgment.  He requested the court divide the personal property, exclude from the equitable distribution a portion of the debt he believed Wife incurred post-separation, and include Wife’s pension in the property division.  Wife filed a motion to alter or amend on April 8, 2002.  Husband moved to dismiss the motion, alleging it was not timely.  The court allowed Wife to proceed with her motion.  The court denied Husband’s motion and granted Wife’s motion, declaring, among other things, that Husband had no interest in Wife’s pension plan.  Husband appeals. 


In appeals from the family court, this court has the authority to find facts in accordance with our own view of the preponderance of the evidence.  Greene v. Greene, 351 S.C. 329, 335, 569 S.E.2d 393, 397 (Ct. App. 2002).  This broad scope of review does not require us to disregard the findings of the family court.  Id.  Neither are we required to ignore the fact that the family court judge, who saw and heard the witnesses, was in a better position to evaluate their credibility and assign comparative weight to their testimony.  Id.


I.                  Family Court’s Refusal to Apportion Personal Property

At the final hearing, Husband and Wife presented the court with lists of personal property.  Husband’s list provided a value for virtually every item of personal property.  Wife’s list, however, did not contain values for most items.  Both Husband and Wife argue the family court erred by refusing to apportion personal property and, instead referring the parties to magistrate’s court.  We agree and remand for resolution of  this issue.

The family court has exclusive jurisdiction over a divorce and the settlement of all legal and equitable rights of the parties in and to the real and personal property of the marriage.  S.C. Code Ann. § 20-7-420(2) (Supp. 2003).  Because the family court has exclusive jurisdiction over this issue, the magistrate’s court is without jurisdiction and, therefore, the family court’s order left the parties without a remedy for dividing the personal property.  The family court clearly erred when it found it had “no way” to value and divide the personal property and referred the parties to magistrate’s court for a division of the property.  Based on the above, we remand this issue to the family court for further proceedings to apportion the personal property.

II.               Wife’s Post-Separation Debt

Wife obtained a loan from Beneficial Finance in March 1999, nearly two years prior to the parties’ separation.  Wife testified she incurred an additional $5,300 on the Beneficial loan after the parties separated, increasing the total due on that debt to $13,349.  Husband claims the family court required him to pay 39% of this post-separation debt.  We disagree and find the family court judge ordered Husband to pay 39% of the marital debt, only. 

The family court found the total marital debt to be $16,400.  Although the record does not show the exact calculation the court used to arrive at this figure, based on the total amount he found it appears the court determined the marital debt on the Beneficial loan to be $8,000, which is consistent with Wife’s records and testimony ($13,349-$5,300=$8,049).  When this figure is added to the sum Husband claimed was marital unsecured debt on various charge cards—$8,400—the marital debt totals $16,400.  Based on the records and testimony before us, we agree this is a correct total of the marital debt.  In apportioning this debt, the court ordered Husband to pay $3,700 to Lowe’s, $1,700 to Sears, and $996 to Visa, for a total of $6,396, which is 39% of the $16,400 marital debt.  We do not discern an abuse of discretion by the family court judge in requiring Husband to pay the amount ordered. 

III.           Wife’s Rule 59(e), SCRCP Motion

Husband claims the family court erred in allowing Wife’s Rule 59(e), SCRCP motion because it was not timely filed.  We disagree.

Although the family court believed Wife’s motion was not timely filed, he determined the record failed to sustain such a finding because it did not show when the order was served on Wife’s attorney.  Therefore, the court heard Wife’s motion. 

Being mindful of our standard of review in this case, we do not disregard the findings of the family court on this issue.  Greene, 351 S.C. at 335, 569 S.E.2d at 397.  We find no error in allowing Wife’s motion.  This was a factual determination the court was free to make.

IV.            Wife’s Pension

Husband argues the family court erred in failing to include Wife’s pension in the apportionment.  We agree.

“A spouse who wishes to claim that certain property is not a part of the marital estate has the burden of presenting witnesses or evidence to establish its non-marital character and also to give the trial court an opportunity to decide the issue.”  Hodge v. Hodge, 305 S.C. 521, 526, 409 S.E.2d 436, 439-40 (Ct. App. 1991). 

Here, Wife never attempted to prove her pension was non-marital.  To the contrary, counsel for the parties discussed equitable division of the pension when the court asked about issues on which the parties agreed.  When Wife’s counsel noted Wife’s pension had not yet vested, the court stated the pension could be divided by a Qualified Domestic Relations Order.  Furthermore, during her testimony Wife said she believed Husband would be entitled to a portion of her pension, and when the court mentioned her testimony later during the hearing, Wife’s counsel accepted the court’s recollection.  Because Wife never attempted to show her pension was non-marital, the court erred in ruling the pension was non-marital.  We find Wife’s pension should be divided by QDRO in the same proportions the judge indicated for equitable distribution.  Therefore, we reverse and remand to the family court for the preparation and execution of a QDRO dividing the pension in the following proportions:  39% to Husband and 61% to Wife.


We find the family court erred in refusing to divide the personal property and in excluding Wife’s pension from the apportionment.  However, we find the court did not err in determining the amount Husband must pay toward the marital debt or in allowing Wife’s Rule 59(e) motion.  Accordingly, the decision of the family court is


HUFF and STILWELL, JJ., and CURETON, A.J., concur.

[1]        We decide this case without oral argument pursuant to Rule 215, SCACR.