stating "the inartful use of an abuse of discretion deferential standard of review merely represents the appellate courts' effort to incorporate the two sound principles underlying the proper review of an equity case," those two principles being "the superior position of the [family court] to determine credibility and the imposition of a burden on an appellant to satisfy the appellate court that the preponderance of the evidence is against the finding of the [family] court"
How later courts described this case
- stating "the inartful use of an abuse of discretion deferential standard of review merely represents the appellate courts' effort to incorporate the two sound principles underlying the proper review of an equity case," those two principles being "the superior position of the [family court] to determine credibility and the imposition of a burden on an appellant to satisfy the appellate court that the preponderance of the evidence is against the finding of the [family] court"
- holding that although an appellate court has the authority to make findings of fact in accordance with its own view of the preponderance of the evidence, it nonetheless "'should approach an equitable division award with a presumption that the family court acted within its broad discretion. The family court's award should be reversed only when the appellant demonstrates an abuse of discretion.'" (quoting Dawkins v. Dawkins, 386 S.C. 169, 172-73 , 687 S.E.2d 52, 54 (2010))
- stating that while the appellate court has the authority to find facts in accordance with its own view of the preponderance of the evidence, "we recognize the superior position of the family court judge in making credibility determinations" and noting de novo review does not relieve an appellant "of his burden to demonstrate error in the family court's findings of fact"
- explaining that although the de novo review allows an appellate court to make its own findings of fact, this standard does not abrogate two long standing principles: (1) the superior position of the family court to assess witness credibility and (2) the appellant's burden to show the preponderance of the evidence is against the finding of the family court
Written by the judges who cited it.
The opinion
Justice PLEICONES.
I respectfully dissent. As I find that the Court of Appeals committed no error of law, I would dismiss the writ of certiorari as improvidently granted.
I appreciate the history, set out in the majority, of this Court’s review of cases originating in the family courts in South Carolina. The majority focuses its review on the family court and cites the standard for the review of family court findings on appeal. However, as noted by the majority, this case is before this Court by virtue of our issuance of a writ of certiorari to review two issues in the Court of Appeals decision: (1) the Court of Appeals reversal of the family court’s determination of the value of the martial home, and (2) the Court of Appeals reversal and modification of the family court’s award of expert witness fees to Petitioner. As explained below, our review on certiorari is confined to an examination of the decision of the Court of Appeals for errors of law or for findings which are wholly unsupported by the evidence. See Hollman v. Woolfson, 384 S.C. 571, 577 , 683 S.E.2d 495, 498 (2009); Turner v. State, 384 S.C. 451, 453 , 682 S.E.2d 792, 793 (2009).
In my view, this case requires us to directly address, for the first time, 14 the consequences of Rule 242, SCACR, which *400 provides that appellate review by the Supreme Court of decisions of the Court of Appeals is by certiorari. My research convinces me that the first question when determining an appellate tribunal’s scope of review is a determination of the method of review, i.e. by appeal or by certiorari. That certiorari and appeal are different methods is recognized by the Constitution 15 as well as by statute. 16 If the method of review is by certiorari, then case law dictates that review is limited to review of errors of law including findings wholly unsupported by the evidence. E.g. City of Columbia v. S.C. Pub. Serv. C’n, 242 S.C. 528 , 131 S.E.2d 705 (1963); Carolina, C. & O. Ry. of South Carolina v. Worley, 102 S.C. 302 , 86 S.E. 820 (1915). On the other hand, when the Court’s review is by appeal, then the scope of review is governed by the nature of the action, i.e. whether it is at law or in equity. S.C. Const, art. V, § 5; § 14-3-320; § 14-3-330.
The General Assembly provided that there would be no appeal from a decision of the Court of Appeals, and that review of those decisions by this Court, if any, would be by discretionary review. S.C.Code Ann. § 14-8-210 (Supp.2009). As is our prerogative when the legislature provides for our discretionary review, we chose to require that a party seeking review of the lower tribunal’s decision do so through a petition for a writ of certiorari. See Knight v. State, 284 S.C. 138 , 325 S.E.2d 535 (1985) (under pre-1999 version of S.C.Code Ann. § 17-27-100, Court could constitutionally require post-conviction relief appellate review to be by certiorari). I do not seek to alchemize equity into law, but rather to logically apply our constitution, our statutory law, and our established precedent to the novel question of what our scope of review is on certiorari to the Court of Appeals.
*401 The Court of Appeals decision reversing the family court’s order "with regard to valuation of the marital estate should only be overturned if based on an error of law or if wholly unsupported by the evidence. By my reading, the Court of Appeals reversed and remanded the case because it found the family court committed an error of law by automatically accepting the expert’s opinion. The Court of Appeals held: “In this case ... Husband has expressed valid concerns that the family court automatically accepted the opinion of Wife’s appraiser merely because the appraiser was deemed to be an expert and never considered whether that opinion was actually supported by the evidence on which it was purportedly based. Cf. Sauers v. Poulin Bros. Homes, Inc., 328 S.C. 601, 605 , 493 S.E.2d 503, 505 (Ct.App.1997) (stating the fact that expert testimony was not directly refuted does not automatically entitle the party offering such testimony to a directed verdict).” With regard to valuation of the marital home, the family court held as follows:
It is well settled law that an owner familiar with his or her property may give his or her opinion of value of the property. However, where an owner is not an expert in the field of real estate appraisals, or one who even “dabbles” in the real estate sales area, I find it would be an abuse of discretion to reject the expert appraisals while adopting the owner’s values. I am mindful of Husband’s arguments and positions related to the values debate, and I do indeed appreciate the position he takes. However, I do not find that I can or should ignore the values offered by experts in their fields, especially when Husband did not counter those experts’ opinions with his experts’ values. Husband did offer numerous properties in the area to bolster his argument that the home and tracts are valued too high but I am not a real estate appraiser, and am certainly not versed in the methods of comparing different and similar properties. And just as I cannot “average” values I cannot lower values without credible reasons to do so. As to the experts Wife used at trial, I find them to be experienced, educated in their fields, convincing in their methodology, and credible. I therefore adopt the values each gave to certain pieces and parcels of personal and real property.
*402 In my view, this excerpt from the family court order provides ample support for the ruling of the Court of Appeals. Despite finding the family court’s order affected by an error of law, the Court of Appeals exercised its obligation to conduct a de novo review of the record to determine if the family court’s ruling nonetheless reached a valuation otherwise supported by the evidence. Finding flaws in the evidence presented by Wife’s expert, the Court of Appeals declined to assign its own value to the property and instead chose to remand the matter to the family court which, it noted, may accept additional evidence. I can find no error of law in the Court of Appeals assessment of the evidence or in its decision to defer to the family court by remanding the case for further proceedings.
In reversing the Court of Appeals, the majority finds evidence to support the family court’s valuation and therefore “decline[s] to alter the factual finding of the family court.” As explained above, in my view, the majority’s analysis fails to address the issue before this Court, namely whether the Court of Appeals erred in reversing the family court.
Finally, I note that, in support of its decision, the majority also cites cases for the proposition that “a party cannot sit back at trial without offering proof, then come to this Court complaining of the insufficiency of the evidence to support the family court’s findings.” In my opinion, such cases are inapplicable to the instant case. As the family court discussed in the portion of the order cited above, Respondent disputed the valuation by Wife’s expert, offered comparable properties, and stated his own opinion as to what the home was worth. See Seaboard Coast Line R.R. v. Harrelson, 262 S.C. 43, 46, 202 S.E.2d 4, 5 (1974) (landowner may testify as to the value of his land).
In my view, the Court of Appeals committed no error of law in reversing and remanding the family court’s order. I would therefore dismiss the writ of certiorari as improvidently granted.
. The Chief Justice maintains that this question is well-settled. Although I agree that myriad decisions on certiorari cite the appeal standard, I am unaware of any case which explicitly addresses the issue I raise today. Cf. Wallace v. Interamerican Trust Co., 246 S.C. 563 , 144 S.E.2d 813 (1965) (fact that Court has previously entertained appeals *400 from interlocutory orders does not foreclose a finding, when issue is raised, that the order is not directly appealable).
. S.C. Const, art. V, § 5; see also Ex parte Childs, 12 S.C. Ill (1879) (Court had four types of appellate jurisdiction under art. IV, § 4 of 1865 Constitution).
. Compare S.C.Code Ann. § 14-3-310 (1976) (authority to issue writ of certiorari) with S.C.Code Ann. § 14-3-320 (Supp.2009) (jurisdiction in appeals from equity) declared unconstitutional in part, Rutherford v. Rutherford, 307 S.C. 199 , 414 S.E.2d 157 (1992) and § 14-3-330 (jurisdiction in appeals at law).