THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Marion Ann Currow, Personal Representative for the Estate of James Marion Glaze,        Appellant,

v.

Evelyn M. Glaze,        Respondent.

Appeal From Charleston County
Frances  P. Segars-Andrews, Family Court Judge

Unpublished Opinion No. 2003-UP-258
Submitted March 10, 2003 � Filed April 8, 2003

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED

Cynthia Barrier Castengera, of Newland; David Dusty Rhoades, of Charleston, for Appellant.

John Graham Altman, III, of Hanahan; Thomas R. Goldstein, of Charleston, for Respondent.

PER CURIAM:� In this divorce action, Husband appeals from an order of the family court (1) awarding Wife alimony, (2) ordering Husband to maintain a life insurance policy naming Wife as the beneficiary, (3) finding Husband�s home was transmuted into marital property, and (4) denying Husband attorney�s fees. We affirm in part, reverse in part, and remand.

FACTUAL/PROCEDURAL BACKGROUND

The parties were married on February 14, 1988 and separated July 5, 2000.� This was their third marriage to each other, but they had no children together.� Wife testified that in late 1987, she was offered a management position with a restaurant in Hilton Head that carried good benefits and a larger salary.� She had made arrangements for the job in Hilton Head, hiring people and obtaining an apartment, but she and Husband were seeing each other at that time so she stayed in Charleston to remarry Husband.� In July, 2000, after the parties had a disagreement, Wife left the home around midnight one night and went to stay with one of her daughters.�

Both parties are elderly and in poor health.� Husband, who was seventy-two at the time of the hearing, testified he suffered from a serious heart condition, asbestosis, sleep apnea and arthritis.� Wife testified she was seventy years old and she suffered from arthritis in both hands and knees, as well as in her lower back, spasms of her esophagus, a torn rotator cuff in the right shoulder, a torn tendon in the left shoulder, and foot problems requiring surgery on both feet.� Husband is retired and draws Social Security and a pension.� He testified, and the court found, he is no longer able to work.� Wife draws Social Security and works as a waitress.� The court found Wife was only able to work three days a week because of her health problems.� Wife stated she did not believe she was going to be able to continue working much longer.� The family court found Husband�s demeanor on the stand demonstrated the difficulty Wife lived with each time Husband was angered.� The court determined Wife �had to leave in the middle of the night� and that Husband�s �anger and continued bad behavior . . . caused the break up of this marriage.��

The family court ordered that Husband pay Wife alimony of $200.00 per month plus pay for her health insurance.� If Husband was unable to keep Wife on his health insurance, he was to increase his alimony payments by $114.00 per month, the amount it cost Husband to maintain Wife on the health insurance policy.� The court further ordered Husband to maintain Wife as the beneficiary of his life insurance policy, found the marital home owned by Husband was transmuted, awarded Wife 25% of the value of the home and 50% of all personal marital property, and ordered that the parties be responsible for their own attorney�s fees.� Husband appeals.

STANDARD OF REVIEW

In appeals from the family court, this court has the authority to find the facts in accordance with its own view of preponderance of the evidence.� Rutherford v. Rutherford, 307 S.C. 199, 204, 414 S.E.2d 157, 160 (1992).� This broad scope of review does not, however, require this court to disregard the findings of the family court. �Stevenson v. Stevenson, 276 S.C. 475, 477, 279 S.E.2d 616, 617 (1981).� Neither are we required to ignore the fact that the trial judge, who saw and heard the witnesses, was in a better position to evaluate their credibility and assign comparative weight to their testimony.� Cherry v. Thomasson, 276 S.C. 524, 525, 280 S.E.2d 541, 541 (1981).

LAW/ANALYSIS

I.� Alimony

Husband first contends the family court erred in finding Wife was entitled to alimony.� We disagree.

The decision to grant or deny alimony rests within the sound discretion of the family court judge, whose conclusions will not be disturbed on appeal absent an abuse thereof.� Sharps v. Sharps, 342 S.C. 71, 79, 535 S.E.2d 913, 917 (2000).� �An abuse of discretion occurs when the judge is controlled by some error of law or where the order, based upon findings of fact, is without evidentiary support.�� Dearybury v. Dearybury, 351 S.C. 278, 282, 569 S.E.2d 367, 369 (2002).� �Alimony is a substitute for the support which is normally incident to the marital relationship.�� Johnson v. Johnson, 296 S.C. 289, 300, 372 S.E.2d 107, 113 (Ct. App. 1988).� Generally, alimony should place the supported spouse, as nearly as is practical, in the same position he or she enjoyed during the marriage.� Id.� It is the duty of the family court to make an alimony award that is fit, equitable, and just if the claim is well-founded.� Woodward v. Woodward, 294 S.C. 210, 217, 363 S.E.2d 413, 417 (Ct. App.1987).

Husband asserts error in several aspects of the award of alimony to Wife.� He first contends the family court made a mathematical error in its determination of his monthly income, thereby warranting reversal of the alimony award.� Specifically, Husband argues the court found his monthly income totaled $1,681.00 from his pension and social security, but also found he received $1,051 from his pension and $333.00 from social security, for a total of only $1,384.00.� Thus, he contends his income is nearly $300.00 less than that found by the court and used in determining alimony.� We disagree.

While the court did determine Husband received a total of $1,681.00 a month from social security and his pension, it is clear this is Husband�s gross pay before deductions for taxes and insurance.� The record reflects, after deductions, Husband receives $1,054.85 a month from his pension. [1] � He receives an additional $383.00 from social security, less $50.00 for Medicare, for a net social security payment of $333.00 a month.� His financial declaration lists state and federal taxes of $138.00 per month. [2] � Thus Husband nets approximately $1,250.00 a month after deductions for taxes and insurance.� Additionally, while Husband listed expenses of $1,403.42 per month, the court found Husband had exaggerated his monthly food and household supply expense of $500.00, and noted Husband only had four more payments left on a $100.00 monthly debt.� Thus, the court determined Husband only required approximately $1,000.00 a month to cover his needs.� Based on our thorough review of the record, we find no error in the family court�s findings on the incomes and expenses of the parties, and the resulting alimony award. [3]

Husband next asserts the family court improperly considered the parties� two prior marriages to each other in awarding Wife alimony.� While the court did make certain findings in regard to the couples� previous history, there is no indication the court relied on any of these findings in determining Wife�s entitlement to alimony.� Further, the court specifically considered the relevant marriage was of thirteen years duration.� It further noted that Wife �had to do everything for the husband,� including all the cooking, cleaning, laundry, housework, and yard work for the last twelve years they lived together.� Based on our review of the record, we find no reversible error on this ground.

As a final attack on the award of alimony, Husband asserts the court failed to give proper consideration to the required factors in determining alimony, or, to the extent the court considered the factors, erred in determining Wife was entitled to any alimony.� We disagree.

Factors to be considered in making an alimony award include:� (1) duration of the marriage and ages of the parties;� (2) physical and emotional health of the parties;� (3) educational background of the parties;� (4) employment history and earning potential of the parties;� (5) standard of living established during the marriage;� (6) current and reasonably anticipated earnings of the parties;� (7) current and reasonably anticipated expenses of the parties;� (8) marital and nonmarital properties of the parties;� (9) custody of children;� (10) marital misconduct or fault;� (11) tax consequences;� and (12) prior support obligations;� as well as (13) other factors the court considers relevant.� S.C. Code Ann. � 20-3-130(C) (Supp.2002).��

Here, the family court expressly considered the thirteen year duration of the marriage, the bad health of both parties and their employment histories, as well as the fact that Husband was retired and unable to work and Wife was only able to work three days a week because of her failing health.� The court further considered the limited earnings and necessary expenses of the parties and determined Husband over exaggerated his expenses and had sufficient income to meet his requirements, while Wife was in need of alimony to cover her expenses. [4] � Further, the court determined Husband�s �anger and continued bad behavior� was the cause of the disintegration of the marriage.� Finally, the court gave some consideration to the fact that Wife forewent the opportunity of a good job with benefits in another city in order to stay in the Charleston area and remarry the husband.� In making an award of alimony, the family court must consider all relevant factors and �give weight in such proportion as it finds appropriate� to these factors.� S.C. Code Ann. � 20-3-130(C) (Supp.2002).� Particularly in light of Wife�s advanced age and declining health, her limited earning capacity, Husband�s ability to pay, and Husband�s fault in the break up of the marriage, we can discern no abuse of discretion.

II.� Life Insurance

Husband next contends the family court erred in requiring him to maintain a life insurance policy with Wife as the beneficiary.� We agree.

In its order, the family court stated, �The husband has or had a Ten Thousand ($10,000.00) Dollar life insurance policy through his retirement and the wife shall be named and maintained as the beneficiary of said policy immediately, and provide proof to the wife each year that this provision is being adhered to.�� The court failed to indicate the basis for this requirement, although presumably it was for security of the alimony award.� Further, the court failed to recite any factors or extraordinary circumstances warranting such an order.

This court recently addressed the issue of a family court�s order requiring a supporting spouse to secure his alimony obligation with a life insurance policy where the court failed to include a comprehensive review of the required statutory factors.� In Allen v. Allen, 347 S.C. 177, 554 S.E.2d 421 (Ct. App. 2001), this court stated as follows:

Prior to 1990, the family court was without authority to require a supporting spouse to secure periodic alimony beyond the supporting spouse�s lifetime.� Gilfillin v. Gilfillin, 344 S.C. 407, 411, 544 S.E.2d 829, 831 (2001).� In the case of Hardin v. Hardin, 294 S.C. 402, 365 S.E.2d 34 (Ct. App. 1987), this court found that a family court needed both statutory authority and a finding of special circumstances before it could require a payor spouse to secure periodic alimony beyond the payor spouse�s death.� Id.� In 1990, however, the Legislature amended S.C. Code Ann. � 20-3-130 (Supp. 2000) to codify the common law rule that periodic alimony terminates at death, but further provided an exception to the rule when such alimony is secured pursuant to subsection (D) of � 20-3-130.� Id. at 412, 544 S.E.2d at 831.� The statute now provides as follows:

In making an award of alimony or separate maintenance and support, the court may make provision for security for the payment of the support including, but not limited to, requiring the posting of money, property, and bonds and may require a spouse, with due consideration of the cost of premiums, insurance plans carried by the parties during marriage, insurability of the payor spouse, the probable economic condition of the supported spouse upon the death of the payor spouse, and any other factors the court may deem relevant, to carry and maintain life insurance so as to assure support of a spouse beyond the death of the payor spouse.

S.C. Code Ann. � 20-3-130 (D) (Supp. 2000).�

Pursuant to this statute, the family court may provide for security of periodic alimony payments beyond the death of the supporting spouse through life insurance �whenever the family court [makes] factual findings concerning five factors favored requiring such insurance.�� Gilfillin, 344 S.C. at 414, 544 S.E.2d at 832.� �[T]he use of life insurance is restricted in subsection (D) for use only after the family court makes comprehensive review of five distinct issues.�� Id.� Because the family court failed to make a comprehensive review of the necessary factors allowing the security of alimony through life insurance pursuant to S.C. Code � 20-3-130 (D) and Gilfillin, we remand this issue to the family court.

Allen, 347 S.C. at 186-87, 554 S.E.2d at 426.

Because the family court failed in the instant case to make the necessary review of factors, we remand this issue to the family court for reconsideration consistent with this opinion.

III.� Transmutation of Marital Home

Husband also contends the family court erred in determining the home he owned prior to the marriage was transmuted into marital property.� Wife argues the home was transmuted based on the fact that she contributed to the reduction of the debt, as well as to maintenance of the home by virtue of her housework.

Marital property is defined by S.C. Code Ann. � 20-7-473 (Supp. 2002) 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. . . .�� On the other hand, property acquired by either party prior to the marriage is nonmarital property.� S.C. Code Ann. � 20-7-473(2) (Supp. 2002).� In certain circumstances, however, nonmarital property may be transmuted into marital property if:� (1) it becomes so commingled with marital property as to be untraceable;� (2) it is jointly titled;� or (3) it is utilized by the parties in support of the marriage or in some other manner so as to evidence an intent by the parties to make it marital property.� Greene v. Greene, 351 S.C. 329, 338, 569 S.E.2d 393, 398 (Ct. App. 2002).� Transmutation is a matter of intent to be gleaned from the facts of each case, and the spouse claiming transmutation must produce objective evidence showing that, during the marriage, the parties themselves regarded the property as the common property of the marriage.� Id.� Without some additional evidence of intent to treat the property as marital, mere use of separate property to support the marriage is insufficient to establish transmutation.� Id.� �While improvements made by a spouse to nonmarital property may result in the spouse's receiving an equitable interest in the property, contributions of time and labor do not necessarily prove transmutation.�� Murray v. Murray, 312 S.C. 154, 158, 439 S.E.2d 312, 315 (Ct. App. 1993).

It is undisputed that Husband purchased the home in 1965, well before the parties� marriage, and the mortgage was paid off in 1995 .� Husband testified he made all of the mortgage payments on the home, and that he used his retirement funds and social security to make the payments during the most recent marriage to Wife.� The home was titled in Husband�s name only.� Wife testified that one of the reasons she left was because Husband made a will leaving the house to his children and refused to provide that the house could be sold to cover her medical care in the event that he predeceased her.� Thus, there is evidence Wife understood Husband did not intend to make the house marital property.� Wife failed to produce affirmative objective evidence showing that, during the marriage, the parties themselves regarded the property as the common property of the marriage.� Based on the foregoing, we find the family court erred in finding the house was transmuted into marital property.� We therefore reverse on this issue.

IV.� Attorney�s Fees

Finally, Husband asserts the family court erred in failing to consider his entitlement to attorney�s fees.� We disagree.

During his testimony, Husband initially requested Wife reimburse him for attorney�s fees and costs.� Thereafter, Husband displayed some confusion as to whether he was requesting the fees.� However, Husband ultimately testified that he would �waive� his request for attorney�s fees and stated, �I will pay it.�� Based on his testimony, we find no error in the family court�s denial of attorney�s fees to Husband.

CONCLUSION

For the foregoing reasons, the family court order is

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

ANDERSON, HUFF and MOREHEAD, JJ., concur.