Opinion
No. COA02-1406
Filed 4 November 2003 This case not for publication
Appeal by defendant from judgment entered 24 October 2001, and order entered 12 July 2002, by Judge Alice C. Stubbs in Wake County District Court. Heard in the Court of Appeals 20 August 2003.
Gary S. Lawrence for plaintiff-appellee. Marshall Taylor, P.C., by Jeffrey E. Marshall and Travis R. Taylor, for defendant-appellant.
Wake County No. 98 CVD 11385.
Defendant Lelon C. Dollar appeals from the trial court's equitable distribution judgment and subsequent order modifying the judgment, both of which concluded that an equal division of the parties' marital property was not equitable and awarded a greater than equal share of all marital and divisible property to plaintiff, Jeannine C. Dollar. We affirm.
Plaintiff and defendant were married on 5 April 1975 and separated on 21 September 1998. On 4 December 1998, plaintiff filed an amended complaint seeking post-separation support, alimony, divorce from bed and board, equitable distribution of the marital estate, and attorney's fees. On 28 January 1999, defendant filed his answer to plaintiff's amended complaint and asserted counterclaims for divorce from bed and board and equitable distribution. The parties were granted an absolute divorce on 14 June 2000. Thereafter, the parties' claims for equitable distribution came on for hearing. By order entered 24 October 2001, the trial court awarded plaintiff an unequal share of the parties' marital and divisible property, and ordered defendant to pay a distributive award of $145,813.00 to plaintiff. In November 2001, defendant filed a motion for a new trial and a motion to stay enforcement of the equitable distribution judgment. On 22 January 2002, the trial court granted defendant's motion for stay. On 12 July 2002, following a hearing on defendant's motion for a new trial and plaintiff's cross-motion to dissolve the stay, the trial court entered an order which (1) contained additional findings of fact not included in the equitable distribution judgment; (2) reduced plaintiff's distributive award by $12,287.20, down to $133,525.80, but otherwise provided that the trial court's prior equitable distribution judgment "shall remain in full force and effect;" (3) lifted the stay on enforcement of the equitable distribution judgment; and (4) denied defendant's motion for a new trial. On 8 August 2002, defendant timely filed notice of appeal from the 24 October 2001 equitable distribution judgment and the 12 July 2002 order.
Plaintiff's distributive award was reduced to correct the erroneous classification in the 24 October 2001 equitable distribution judgment of a certificate of deposit as plaintiff's separate property, when in fact, as acknowledged by plaintiff, it should have been classified as marital property.
At the outset, we note that the 24 October 2001 equitable distribution judgment indicates the trial court "received testimony and evidence from both Plaintiff and Defendant" at the equitable distribution hearing. Because defendant has failed to submit the transcript from the equitable distribution hearing or otherwise include the oral testimony in the record on appeal, the findings of fact contained in the equitable distribution judgment are presumed to be supported by competent evidence and are therefore conclusive on appeal. Fellows v. Fellows, 27 N.C. App. 407, 408, 219 S.E.2d 285, 286 (1975); Algary v. McCarley Co., 74 N.C. App. 125, 126-27, 327 S.E.2d 296, 297-98 (1985).
The 24 October 2001 equitable distribution judgment contained the following pertinent findings of fact:
3. The marriage of Plaintiff and Defendant was the second marriage for both parties. No children were born of this marriage; however, both Plaintiff and Defendant have children born of their respective first marriages.
. . . .
7. Pursuant to the stipulations of the parties, the division of marital assets contained on Schedule A [of the pre-trial order entered prior to the equitable distribution hearing] resulted in a division whereby the Plaintiff received marital assets totaling $328,752.00 and the Defendant received marital assets totaling $351,046.00.
. . . .
11. Prior to the marriage of the parties, the Plaintiff's father passed away.
12. Attached to the Pre-Trial Order is a schedule of separate property of both Plaintiff and Defendant. This schedule is incorporated herein by reference and made a part of this Order.
13. Part of Plaintiff's inheritance from her father was several parcels of real property located in Chatham County and one parcel in Harnett County. . ..
. . . .
15. Part of Plaintiff's inheritance was 68.5 acres located in Harnett County. The Plaintiff instructed her siblings to convey this tract in Harnett County to she and the Defendant, as tenants by the entirety. Plaintiff did so upon reliance on Defendant's promise to have the pharmacy [owned by defendant] and its assets placed in the names of both parties.
. . . .
17. Both parties had the Harnett County property appraised. . . . This Court finds as a fact that the Harnett County property had a value on date of separation and date of distribution of $92,000.00.
18. Prior to the marriage the Defendant was a one-third (1/3) owner of a pharmacy located in Apex, North Carolina. The Defendant also owned some stock in North Carolina Mutual Drug Stores.
19. During the marriage the Defendant purchased the remaining two-thirds (2/3) interest in the pharmacy and continued to purchase North Carolina Mutual Drug Stock.
20. Prior to the date of separation, the Defendant sold the pharmacy to Eckerd's Drug Stores. On the date of separation, the Defendant had received part of the payment from the sale of the pharmacy; however, following the separation the Defendant received a balance of $86,667.00.
21. The Defendant also sold his North Carolina Mutual Drug Stock prior to the date of separation. Prior to separation, the Defendant had received $50,752.00 from the sale of his NC Mutual Drug Stock. Following the date of separation the Defendant received an additional $50,752.00 from the sale of this stock.
. . . .
24. The total value of the proceeds from the sale of the Medical Center Pharmacy and the North Carolina Mutual Drug Stock; including the accounts which existed on the date of separation and the proceeds received after date of separation total $339,657.00.
25. It was stipulated by the parties and their respective counsel that the proceeds from the sale of the pharmacy and the drug stock would be treated in the same manner in determining the portion of the proceeds that were marital and the portion that was separate property.
26. This Court finds as a fact that two-thirds (2/3) of the Medical Center Pharmacy was marital property and one-third (1/3) of the pharmacy was Defendant's separate property. The Defendant owned a one-third (1/3) interest on the date of separation and after the date of separation purchased the remaining two-thirds (2/3) interest from his two partners.
27. Of the total proceeds from the sale of the pharmacy and North Carolina Mutual Drug Stock, $226,438.00 is marital and $113,219.00 is the Defendant's separate property.
28. Subsequent to the marriage of the parties and prior to Plaintiff having the Harnett County property conveyed to Plaintiff and Defendant, the Defendant promised the Plaintiff that he would convey his interest in the Medical Center Pharmacy to the two of them; thereby creating a joint asset. It was on the basis of these representations and assurances by the Defendant that the Plaintiff caused the Harnett County property to be conveyed to her and the Defendant as tenants by the entirety.
29. The Defendant never conveyed his separate interest in the pharmacy to he and the Plaintiff; notwithstanding repeated assurances by the Defendant that he would do such.
30. The Plaintiff relied upon the assurances and representations by the Defendant that he would convey the pharmacy to the two of them, and had the Harnett County property conveyed to the two of them as tenants by the entirety.
31. In addition, to the Defendant's separate property as set forth on the Exhibit attached to the Pre-Trial Order, the Defendant has as his separate property, a one-third (1/3) interest in the proceeds from the sale of the Medical Center Pharmacy and the North Carolina Mutual Drug Stock; totally [sic] $113,219.00. The total of Defendant's separate property is $152,219.00.
32. In addition to her separate property as listed on the schedule attached to the Final Pre-Trial Order, the Plaintiff has as her separate property the following assets: [a certificate of deposit in the amount of $30,718.00 and a checking account containing $9,016.00].
In the 12 July 2002 order, the trial court modified the equitable distribution judgment to classify this certificate of deposit as marital property, awarded 60% of the funds therein to plaintiff and 40% to defendant, and reduced plaintiff's distributive award accordingly to reflect this modification.
33. The Harnett County property was inherited by the Plaintiff; however, she had it conveyed to the parties as tenants by the entirety in reliance upon Defendant's assurances that he would make his separate ownership interest in the pharmacy jointly owned property. The Court finds this to be a distributional factor justifying an unequal division in Plaintiff's favor.
. . . .
35. On the date of separation, the Court finds that the parties owned, in addition to property listed above, the following items of marital property with the corresponding values: [a] 1987 Lincoln [with a value of] $5,000.00 [and a] 1994 Buick [with a value of] $11,000.00[.]. . .
36. Since the separation of the parties, Defendant has possession and use of most of the parties['] marital assets. Defendant resided in the marital home until it was sold. This home was paid for and therefore Defendant had no monthly mortgage or rent payments. Defendant also had use of the marital funds. He purchased a new automobile; paying cash with marital funds. The Court finds this to be a distributional factor justifying an unequal division in favor of Plaintiff.
37. Defendant has paid taxes on the proceeds from the sale of the pharmacy and the Mutual drug stock. These taxes were as follows: . . . [resulting in a] [t]otal tax liability [of] $76,440.00[.]
38. Of the tax liability of $76,440.00, $51,627.00 is a marital liability and $25,813.00 is Defendant's separate liability.
39. The parties had a marital (and divisible) estate of $1,014,236.00. After deducting the taxes, the net marital estate was $962,609.00.
40. Plaintiff has in her possession marital property with a value totaling $431,752.00.
41. Defendant has in his possession marital property with a value totaling $582,484.00. After paying the taxes, Defendant has a net value of $530,857.00.
42. Considering the factors set forth in N.C.G.S. 50-20(c), the Court finds that an equal division of marital property, using the net values would not be equitable. An Equitable Distribution would be a distribution whereby the Plaintiff receives a greater than equal share. The distribution of all marital and divisible property as hereafter set forth is determined by the Court to be equitable.
Based on these findings of fact, the trial court concluded that an equal division of the marital and divisible property would not be equitable, awarded plaintiff a greater than equal share and distributed the marital estate accordingly, and ordered defendant to make a distributive payment of $145,813.00. The trial court's subsequent 12 July 2002 order contained the following additional pertinent finding of fact:
11. Since the separation of the parties, the Defendant has had control of a majority of the parties['] assets. The parties are retired and are dependent upon their investments, plus Social Security for the living expenses. The Defendant has had the use of the majority of their joint investments since the date of separation; to the exclusion of the Plaintiff. . . .
By the 12 July 2002 order, the trial court modified the equitable distribution judgment by reducing plaintiff's distributive award to $133,525.80 after finding that certain marital property had been erroneously classified as plaintiff's separate property, but provided that in all other respects the equitable distribution judgment "shall remain in full force and effect." Defendant appeals from the provisions of both the 24 October 2001 equitable distribution judgment and the 12 July 2002 order awarding plaintiff an unequal share of the marital and divisible property.
Initially, we note that under N.C. Gen. Stat. § 50-20 (2001), the statute governing equitable distribution, "[t]he marital property is to be distributed equally, unless the court determines equal is not equitable." Stanley v. Stanley, 118 N.C. App. 311, 314, 454 S.E.2d 701, 703 (1995) (quoting Willis v. Willis, 86 N.C. App. 546, 550, 358 S.E.2d 571, 573 (1987)). "If the trial court divides property unequally, it must make findings of fact based on the evidence in support of its conclusion that an equal division would not be equitable." Khajanchi v. Khajanchi, 140 N.C. App. 552, 558, 537 S.E.2d 845, 849 (2000). Defendant bases each of his six assignments of error on the assertion that the findings contained in the equitable distribution judgment and the 12 July 2002 order are insufficient to support an unequal division of the marital estate in plaintiff's favor.
In reviewing the sufficiency of a trial court's findings of fact to support an equitable distribution award, this Court has stated that "the degree of specificity required in a court order pertaining to equitable distribution cannot be established with scientific precision." Rosario v. Rosario, 139 N.C. App. 258, 267, 533 S.E.2d 274, 279 (2000). We look for guidance to our Supreme Court's holding that "the trial court's findings must be specific enough that the appellate court can determine from reviewing the record whether the judgment represents a correct application of the law." Embler v. Embler, ___ N.C. App. ___, ___, 582 S.E.2d 628, 631(2003); see also Patton v. Patton, 318 N.C. 404, 406, 348 S.E.2d 593, 595 (1986). Moreover, the trial court must make specific findings as to the ultimate, rather than evidentiary, facts found by the trial court in support of its conclusion regarding equitable distribution. Embler, ___ N.C. App. ___, 582 S.E.2d at 631. The trial court is not required to make "exhaustive findings regarding the evidence presented at the hearing." Armstrong v. Armstrong, 322 N.C. 396, 405, 368 S.E.2d 595, 600 (1988).
N.C. Gen. Stat. § 50-20(c) sets forth twelve distributional factors for the trial court to consider in determining whether or not equal distribution of marital property is equitable. "[A] finding which merely states that `due regard' has been given to the section 50-20(c) factors, without supporting findings as to the ultimate evidence presented on these factors, is insufficient as a matter of law, because such a general finding does not present enough information to allow an appellate court to determine whether evidence presented on each of the section 50-20(c) factors was duly considered by the trial court." Daetwyler v. Daetwyler, 130 N.C. App. 246, 249-50, 502 S.E.2d 662, 665 (1998), aff'd per curiam, 350 N.C. 375, 514 S.E.2d 89 (1999) (citations omitted) (emphasis added). The trial court is required to make findings of fact as to each section 50-20(c) factor for which evidence was presented. Rosario, 139 N.C. App. at 261, 533 S.E.2d at 276. The weight to be assigned to any of the section 50-20(c) factors on which the parties have presented evidence is within the trial court's discretion, and the trial court is not required to make findings revealing the exact weight assigned to any given factor. Daetwyler, 130 N.C. App. at 250, 502 S.E.2d at 665; see also Fox v. Fox, 103 N.C. App. 13, 21-22, 404 S.E.2d 354, 358 (1991) (holding that the trial court's findings were sufficient despite the fact that "the court did not explain how it balanced [the distributional] factors").
We review the equitable distribution judgment and 12 July 2002 order in the present case with the foregoing principles in mind.
Defendant first argues the trial court "erred and abused its discretion" by failing to "sufficiently consider all required statutory factors" in rendering both the equitable distribution judgment and subsequent order. Defendant correctly points out that neither the equitable distribution judgment nor the 12 July 2002 order cite directly to a "single specific subsection or subsections of N.C.G.S. § 50-20(c) for which evidence was offered . . . [as] the alleged basis for an unequal distribution of marital property" in plaintiff's favor. The only reference to N.C. Gen. Stat. § 50-20(c) in the equitable distribution judgment's findings is in finding of fact number 42, which states that an equal division of the marital property would not be equitable "[c]onsidering the factors set forth in N.C.G.S. 50-20(c);" similarly, the lone reference to the statute in the 12 July 2002 order's findings is in conclusion of law number five, which states that the equitable distribution judgment, as amended by the order, represents an equitable distribution of the marital estate "after consideration of all factors set forth in N.C.G.S. 50-20(c)." Our careful review indicates the equitable distribution judgment contains extensive findings of ultimate facts as to two of the twelve statutory distributional factors, although, as noted above, the judgment does not cite to the appropriate subsection of section 50-20(c) in either instance. In findings of fact numbers 15, 28, 30, and 33, the trial court found as an ultimate fact that plaintiff caused real property in Harnett County she received as an inheritance to be conveyed to herself and defendant as tenants by the entirety, in reliance upon defendant's promise to convey his separate interest in the Medical Center Pharmacy to himself and plaintiff jointly. In finding of fact number 29, the trial court found as an ultimate fact that defendant never conveyed his separate interest in the pharmacy, "notwithstanding repeated assurances by the Defendant that he would do such."
N.C. Gen. Stat. § 50-20(c)(12) provides that the trial court may consider as one of the distributional factors "any . . . factor which the court finds to be just and proper" in determining whether equal distribution of the marital estate is equitable. Our Supreme Court has limited considerations under N.C. Gen. Stat. § 50-20(c)(12) to "those which are relevant to the marital economy." Smith v. Smith, 314 N.C. 80, 87, 331 S.E.2d 682, 687 (1985). In finding of fact number 33, the trial court found plaintiff's conveyance of the inherited Harnett County property to herself and defendant as tenants by the entirety "in reliance upon Defendant's assurances that he would make his separate ownership interest in the pharmacy jointly owned property" to be a "distributional factor justifying an unequal division in Plaintiff's favor." The trial court made a specific finding that defendant never conveyed any interest in the pharmacy to plaintiff. The trial court also made findings as to valuation of the Harnett County property and the proceeds defendant received from the sale of the pharmacy and related stock. While neither finding of fact numbers 33 or 42 in the equitable distribution judgment specifically cite N.C. Gen. Stat. § 50-20(c)(12) as the basis for its determination that unequal division in plaintiff's favor is equitable, we conclude that because the trial court made sufficient "supporting findings as to the ultimate evidence presented on" this distributional factor, which is related to the marital economy, its findings were sufficient as a matter of law to support its conclusion and to allow meaningful appellate review thereof. Daetwyler, 130 N.C. App. at 249, 502 S.E.2d at 665.
We employ an identical analysis in reviewing the equitable distribution judgment's finding of fact number 36, in which the trial court found as ultimate facts that defendant (1) had retained "possession and use of most of the parties['] marital assets;" (2) "also had use of the marital funds;" and (3) "purchased a new automobile[,] paying cash with marital funds," which the court found to be "a distributional factor justifying an unequal distribution in favor of Plaintiff." N.C. Gen. Stat. § 50-20(c)(11a) requires the trial court to consider "[a]cts of either party to . . . waste, neglect, devalue or convert the marital property or divisible property, or both, during the period after separation of the parties and before the time of distribution." While neither finding of fact numbers 36 or 42 cite N.C. Gen. Stat. § 50-20(c)(11a) as the basis for the trial court's conclusion that equal distribution would not be equitable, we conclude that because the trial court made sufficient "supporting findings as to the ultimate evidence presented on" this distributional factor, its findings were sufficient as a matter of law to support its conclusion and to allow meaningful appellate review thereof. Daetwyler, 130 N.C. App. at 249-50, 502 S.E.2d at 665.
Defendant next argues the trial court erred and abused its discretion by failing to make findings as to evidence offered on certain section 50-20(c) distributional factors. Specifically, defendant argues that evidence was presented as to (1) the amount of taxes defendant paid in connection with the sale of the pharmacy and associated stock; (2) the income, property, and liabilities of each party at the time the division of property is to become effective; and (3) certain expenditures made by defendant related to the sale of the pharmacy and to prepare the marital home for sale.
We agree that this evidence, if presented, relates to the distributional factors codified in N.C. Gen. Stat. § 50-20(c)(11), -20(c)(1), and -20(c)(11a), respectively. Defendant correctly states that the trial court must make findings as to each section 50-20(c) distributional factor for which evidence was presented. Rosario, 139 N.C. App. at 261-62, 533 S.E.2d at 276. However, our review indicates the trial court made findings in the equitable distribution judgment's findings of fact numbers 37, 38, and 41 as to the amount of taxes defendant paid in connection with the sale of the pharmacy and associated stock, as required by N.C. Gen. Stat. § 50-20(c)(11) and Rosario. Likewise, we conclude that the trial court made ultimate findings as to each parties' income, property, and liabilities in the equitable distribution judgment's findings of fact numbers 7, 12, 17, 24, 27, 31, 32, 35, 40, and 41, as well as in the 12 July 2002 order's finding of fact number 11, as required by N.C. Gen. Stat. § 50-20(c)(1) and Rosario.
While neither the equitable distribution judgment nor the 12 July 2002 order contain any findings regarding expenditures defendant claims he made related to the sale of the pharmacy and to prepare the marital home for sale, none were required because our review of the record fails to indicate that any evidence was offered as to these expenditures. In his brief defendant cites only his motion for a new trial as support for his contention that he presented such evidence to the trial court; paragraph five of his motion states that defendant presented evidence of these expenditures "through testimony and documentary exhibits." Because defendant has failed to submit transcripts of either hearing or include "documentary exhibits" of these expenditures in the record, the trial court's lack of findings as to these expenditures is binding on appeal. Fellows, 27 N.C. App. at 408, 219 S.E.2d at 286; Algary, 74 N.C. App. at 126-27, 327 S.E.2d at 297-98 (1985).
The trial court is vested with wide discretion in equitable distribution cases. Wall v. Wall, 140 N.C. App. 303, 307, 536 S.E.2d 647, 650 (2000). Consequently, a trial court's equitable distribution judgment "will be upset only upon a showing that it was so arbitrary that it could not have been the result of a reasoned decision." Id. (quoting White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985)). This Court has held that "so long as the trial court considers all the distributional factors in § 50-20(c) and makes sufficient findings as to each statutory factor on which evidence is offered, the finding of a single distributional factor by the trial court may support an unequal division" of the marital estate. Judkins v. Judkins, 113 N.C. App. 734, 741, 441 S.E.2d 139, 143, disc. rev. denied, 336 N.C. 781, 447 S.E.2d 424 (1994). In light of our analysis above, we cannot conclude that the trial court in the present case abused its discretion in making certain findings of fact, declining to make others, and concluding that an unequal division of the marital assets in plaintiff's favor was equitable.
Affirmed.
Judges TIMMONS-GOODSON and HUNTER concur.
Report per Rule 30(e).