THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS 
PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Lisa Sochko Respondent/Appellant,

v.

Jeffrey Sochko Appellant/Respondent.

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

Unpublished Opinion No. 2007-UP-082
Submitted February 1, 2007 – Filed February 15, 2007

AFFIRMED

George W. Speedy, of Camden, for Appellant- Respondent.

Thomas F. McDow, of Rock Hill, for Respondent-Appellant.

PER CURIAM:  In this domestic action, Lisa Sochko (Wife) appeals the order of the family court distributing $120,000 she and Jeffrey Sochko (Husband) received when they settled a claim for stucco damage to their home.  Husband also appeals the family court’s award of attorney’s fees to Wife.  We affirm.[1]

FACTS

On November 23, 1999, after fourteen years of marriage, Wife instituted this action for divorce.  Wife sought custody of the parties’ three children, child support, equitable apportionment of the marital property, and attorney’s fees and costs.  Husband answered, seeking alimony, custody, equitable apportionment and divorce based upon Wife’s adultery.[2]    

On December 13, 1999, the family court issued a temporary order awarding joint custody to both parents, with Wife as the primary custodian.  Husband was ordered to pay $444 per month in child support.  Shortly thereafter, Husband filed a motion seeking to transfer custody to him, which the family court denied.  On September 22, 2000, Wife filed a rule to show cause against Husband for failure to pay child support.  By the time of the hearing, Husband had paid close to $800 and made provisions to pay the past arrearages. 

Thereafter, numerous motions were filed, including a motion by Wife, which was granted by the family court, to have the guardian ad litem removed.  In 2001, with trial only days away, Husband replaced his attorney and received a continuance. 

By the time the case was set for trial, in February of 2002, the parties had settled many of the issues, including the issue of custody, which had been the primary source of the parties’ disagreement.  The parties agreed to joint custody with Wife being the primary custodian.  After trial, the family court issued the parties a divorce based upon the ground of one years separation.  Further, the family court ordered Husband to pay child support and denied his request for alimony.  The court found neither party was entitled to attorney’s fees. 

Both parties filed a Rule 59(e), SCRCP, motion to have the family court reconsider its divorce decree.  Specifically, Wife argued the judge had failed to consider Husband’s actions in prolonging the litigation.  By order dated August 5, 2002, the family court awarded Wife attorney’s fees; however, the court denied Husband’s motion. 

Although the record is somewhat unclear, it appears the divorce was bifurcated, leaving the issue of the marital home to be decided later due to ongoing litigation involving stucco damage to the home.  The parties eventually settled their stucco claim for $120,000. 

At the September 11, 2003 hearing, the parties agreed that the equity in the marital home would be divided in half, with Wife receiving ownership of the house.  Therefore, the only issues left to determine were the outstanding liens on the home and the apportionment of the stucco settlement.  During the hearing, Wife attempted to introduce Charles Burns, Jr., the contractor who performed the stucco repairs, as a witness.  Husband objected based on the ground Wife did not list Burns as a witness.  The family court sustained the objection.  Additionally, the court allowed Wife to argue that $14,000 the parties received from her father for down payment for their home was a loan, and thus marital debt subject to equitable apportionment.  Husband maintained the money was a gift. 

On November 11, 2003, the family court issued its final order, finding the cost of the stucco repairs amounted to $40,150.  After assessing the equity in the home, the mortgage indebtedness, the repairs performed on the home, and the remaining stucco settlement, the judge found Wife was required to pay Husband $3,696.85 as his share of apportionment of the house.  In reaching this figure, the family court considered that Husband already had possession of $38,613.39, which amounted to his share of the stucco settlement after attorney’s fees and costs. 

Husband filed a Rule 59(e) motion, arguing the family court erred in assessing the value of the marital home and stucco settlement.  Husband argued the equity in the home and the stucco settlement should be apportioned separately and the family court agreed.  In its amended final order, the family court, cognizant that under the new order Wife owed a substantially larger amount than under the previous order, found Husband was entitled to $42,310 for his share of the equity in the house and stucco settlement.  Both parties appeal.    

STANDARD OF REVIEW

On appeal from the family court, this court has the authority to find facts in accordance with its own view of the preponderance of the evidence.  Dearybury v. Dearybury, 351 S.C. 278, 283, 569 S.E.2d 367, 369 (2002); Lanier v. Lanier, 364 S.C. 211, 215, 612 S.E.2d 456, 458 (Ct. App. 2005); Nasser-Moghaddassi v. Moghaddassi, 364 S.C. 182, 189, 612 S.E.2d 707, 711 (Ct. App. 2005); Emery v. Smith, 361 S.C. 207, 213, 603 S.E.2d 598, 601 (Ct. App. 2004) (citing Rutherford v. Rutherford, 307 S.C. 199, 414 S.E.2d 157 (1992)).  This broad scope of review does not require us to disregard the family court’s findings, and we remain mindful of the fact that the family court, who saw and heard the parties, was in a better position to evaluate their credibility and assign weight to their testimony.  Cherry v. Thomasson, 276 S.C. 524, 525, 280 S.E.2d 541, 541 (1981); Holler v. Holler, 364 S.C. 256, 261, 612 S.E.2d 469, 472 (Ct. App. 2005); see also Dorchester County Dep’t of Soc. Servs. v. Miller, 324 S.C. 445, 477 S.E.2d 476 (Ct. App. 1996) (stating that because the appellate court lacks the opportunity to directly observe the witnesses, it should accord great deference to the family court’s findings where matters of credibility are involved).

LAW/ANALYSIS

I. Wife’s Appeal

A. Judicial Estoppel

Wife argues the family court erred in assessing only $40,150, the amount the parties paid to repair the stucco damage to the house, as the stucco damage.  Wife maintains even though the amount to repair the damage was $40,150, under the doctrine of judicial estoppel, Husband is estopped from claiming the stucco damage to the house was less than $120,000, the amount the parties received as the settlement of the stucco claim.  We disagree.

Initially, we note the argument relating to judicial estoppel is not preserved for our review.  To preserve an issue for appellate review, the issue cannot be raised for the first time on appeal, but must have been raised to and ruled upon by the family court.  Charleston County Dep’t of Soc. Servs. v. Jackson, 368 S.C. 87, 104-05, 627 S.E.2d 765, 775 (Ct. App. 2006) (citing Staubes v. City of Folly Beach, 339 S.C. 406, 412, 529 S.E.2d 543, 546 (2000) (“It is well-settled that an issue cannot be raised for the first time on appeal, but must have been raised to and ruled upon by the trial court to be preserved for appellate review.”)); Jones v. Daley, 363 S.C. 310, 315, 609 S.E.2d 597, 599 (Ct. App. 2005).  Wife did not raise this argument to the family court.  Additionally, Wife did not raise this issue in her rule 59(e), SCRCP, motion.  Therefore, this issue is not preserved.   See Washington v. Washington, 308 S.C. 549, 551, 419 S.E.2d 779, 781 (1992) (holding when an appellant neither raises an issue at trial nor through a Rule 59(e), SCRCP motion to amend, the issue is not properly presented to an appellate court for review); Hailey v. Hailey, 357 S.C. 18, 24, 590 S.E.2d 495, 498 (Ct. App. 2003) (finding Wife did not raise argument that Husband was judicially estopped from raising issue of decrease of alimony to family court and thus, issue was not preserved for appellate review).

Even if the issue was preserved, we find judicial estoppel inapplicable under the facts of this case. Under the doctrine of judicial estoppel, Wife contends Husband maintained two inconsistent positions.  During the stucco litigation, Husband maintained the damage to the house was $120,000, and in the current action he maintains the damage was only $40,150.  The doctrine of judicial estoppel “is an equitable concept that prevents a litigant from asserting a position inconsistent with, or in conflict with, one the litigant has previously asserted in the same or related proceeding.”   Cothran v. Brown, 357 S.C. 210, 215, 592 S.E.2d 629, 631 (2004) (citing Colleton Reg. Hosp. v. MRS Med. Rev. Systs., 866 F.Supp. 896, 900 (D.S.C. 1994)). The purpose of judicial estoppel is “‘to protect the integrity of the courts rather than to protect litigants from allegedly improper or deceitful conduct by their adversaries.’”  Hawkins v. Bruno Yacht Sales, 353 S.C. 31, 42, 577 S.E.2d 202, 208 (2003) (quoting Hayne Fed. Credit Union v. Bailey, 327 S.C. 242, 251, 489 S.E.2d 472, 477 (1997)).  

Further, “[b]ecause judicial estoppel is an equitable concept, depending upon the facts and circumstances of each individual case, application of the doctrine is discretionary.” Carrigg v. Cannon, 347 S.C. 75, 83-84, 552 S.E.2d 767, 772 (Ct. App. 2001) (citing Hawkins v. Bruno Yacht Sales, 342 S.C. 352, 368, 536 S.E.2d 698, 706 (Ct. App, 2000)); see also Allen v. Zurich Ins. Co., 667 F.2d 1162, 1167 (4th Cir. 1982) (“observing judicial estoppel should be applied with caution”); 28 Am. Jur. 2d Estoppel & Waiver § 75 (2000) (“noting judicial estoppel is an equitable concept that must be applied with caution and in the narrowest of circumstances at the discretion of the trial court”)).  In order for judicial estoppel to apply in a given case, the following elements must be met:

(1) two inconsistent positions taken by the same party or parties in privity with one another; (2) the positions must be taken in the same or related proceedings involving the same party or parties in privity with each other; (3) the party taking the position must have been successful in maintaining that position and have received some benefit; (4) the inconsistency must be part of an intentional effort to mislead the court; and (5) the two positions must be totally inconsistent.

Cothran, 357 S.C. at 216, 592 S.E.2d at 631 (citing Carrigg v. Cannon, 347 S.C. 75, 83, 552 S.E.2d 767, 772 (Ct. App. 2001)).

During the stucco litigation, Husband and Wife both claimed the damage to the house was over $120,000, and the parties agreed to settle for that amount.  Subsequently, Wife made $69,800 worth of repairs to the home, $40,150 of which were found to be repairs to the house due to stucco damage.

We find the family court properly concluded the cost to repair the stucco damage was the correct way to assess the damage to the house.  Therefore, the court properly divided the remaining portion of the settlement between the parties.  If we were to adopt the approach urged by Wife and allow her to receive the entire stucco settlement despite the fact that the repairs were significantly less, then she would receive a windfall and Husband would be denied his rightful share of the settlement. 

Moreover, we find judicial estoppel does not apply to the facts of this case.  The theory of judicial estoppel is premised upon the notion that allowing a party to enter a court of law asserting a factual position inconsistent with a position taken earlier in a related action demeans the entire judicial process.  In this case, we can discern no threat to the integrity of the court by allowing Husband to receive his share of the benefit that the cost to repair the