Opinion
No. COA15-457
04-19-2016
EDWARD LEE PAYNE, Plaintiff, v. BRENDA BOWMAN PAYNE, Defendant.
Bennett & West, by Michael R. Bennett, for Plaintiff-Appellee. Wait Law, P.L.L.C., by John L. Wait, for Defendant-Appellant.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. Stokes County, No. 13 CVD 217 Appeal by Defendant from judgment entered 20 August 2014 by Judge Charles M. Neaves, Jr. in District Court, Stokes County. Heard in the Court of Appeals 30 November 2015. Bennett & West, by Michael R. Bennett, for Plaintiff-Appellee. Wait Law, P.L.L.C., by John L. Wait, for Defendant-Appellant. McGEE, Chief Judge.
Defendant Brenda Bowman Payne ("Wife") appeals from an equitable distribution judgment ordering the unequal division of the marital estate that Wife shares with Plaintiff Edward Lee Payne ("Husband") and denying Wife's counterclaim for alimony. We affirm the judgment in part, and vacate and remand in part.
Husband and Wife (collectively "the parties") were married on 13 March 2007 and separated on 25 September 2012. Husband filed a complaint on 28 March 2013 seeking equitable distribution of the marital property and moved for an interim distribution of specific items of personal property. Wife answered and counterclaimed for equitable distribution, post-separation support, alimony, and attorney's fees. The parties entered into a consent order on 17 July 2013 ("the consent order") in which Husband agreed to pay $400.00 per month in temporary post-separation support and the parties agreed that specific items of personal property were to be distributed to Husband.
In their respective briefs, Husband contends the parties separated on 25 September 2012, while Wife contends the parties separated on 9 February 2013. With respect to this issue, the trial court considered the evidence presented and made the following unchallenged findings:
[Wife] testified and the [c]ourt finds that [Wife] left the parties' marital residence and moved to a separate residence on or about September 25, 2012, that [Wife] took out a restraining order against [Husband] in November of 2013, and that in December of 2013[, Wife] charged [Husband] with violation of said restraining order. The [c]ourt further finds that after taking out the December 2013 restraining order violation, [Wife] had a lawyer send [Husband] a letter about the parties' separation. The [c]ourt finds that all of [Wife's] actions in this regard indicate an intent for [Wife] to be separate and apart from [Husband] as of September 25, 2012.
Two weeks later, Husband moved for a temporary emergency order prohibiting "either party from destroying, damaging, or disposing of [the parties'] substantial marital and separate assets so that neither party may be denied their respective marital or separate interest." On 13 September 2013, Husband moved the court to compel Wife to attend her deposition because Husband alleged that Wife was "purposefully delaying the discovery process in this matter by [repeatedly] refusing to attend her deposition and produce the documents requested," and alleged that her refusal to attend the deposition was "in bad faith" and was intended to intentionally obstruct the discovery process. Husband further moved the court to hold Wife in contempt for her alleged attempts to "prohibit[]" Husband from entering the parties' former marital residence so that Husband could retrieve designated items of marital and separate property in accordance with the terms of the consent order. The trial court entered an order on 3 October 2013 granting Husband's motion that the parties be restrained from destroying, damaging, or disposing of any marital or separate properties.
On 28 April 2014, Wife moved the trial court to hold Husband in contempt because Wife alleged that Husband retrieved a gun safe from the parties' former marital residence — a safe to which only Husband knew the combination — and alleged that Husband "refused to open the safe and photograph the contents." Although Husband later asserted that the safe was empty, Wife alleged she had reason to believe the safe "contained ammunition and cash currency valued at over $20,000." Wife further moved to increase her temporary post-separation support from $400.00 per month to $900.00 per month. Husband moved to dismiss Wife's motions.
The parties entered into an equitable distribution pre-trial order on 1 May 2014, which set out the parties' contentions and stipulations with respect to the identification, valuation, and distribution of the marital estate. The trial court entered an interim distribution order on 20 May 2014 ("the interim order") in which it awarded the immediate possession of real property located at 2325 Hickory Fork Road in Walnut Cove, North Carolina ("the Hickory Fork property"), to Husband. The court directed that, for inventory purposes, Husband photograph "all items of personal property" located at the Hickory Fork property between 17 May and 19 May 2014, that "[n]o items of personal property of any nature [we]re to be removed from the mobile home [on the Hickory Fork property] or the premises" by Husband, and further directed that Husband allow Wife access to the Hickory Fork property between 20 May and 26 May 2014 at which time Wife could remove those items that were her separate personal property and that belonged to her adult son from a previous relationship.
On 18 June 2014, two months after filing her first motion for contempt, Wife filed a second motion for contempt in which she alleged that, contrary to the directives of the interim order, Husband "repeatedly entered onto [the Hickory Fork property] and removed truckloads of property" therefrom between 17 May and 19 May 2014, and that when Wife entered the property on 23 May 2014, she "discovered that thousands of dollars in tools and household items had been removed since her last time at the residence." The trial court heard the parties' claims for equitable distribution and Wife's counterclaim for alimony beginning on 21 July 2014. In its judgment entered on 20 August 2014, the trial court concluded that an unequal division of the marital estate was equitable, distributing sixty percent of the marital estate to Wife and forty percent of the marital estate to Husband, ordered Husband to pay Wife a distributive award in the amount of $13,651.00, and denied Wife's counterclaim for alimony. Wife appeals.
I.
Wife first contends the trial court erred by awarding the Hickory Fork property and the lot located at 125 Twin Bluff Trail in the Lake Tillery area of Montgomery County, North Carolina ("the 125 Twin Bluff lot"), to Husband because Wife asserts that these distributions were contrary to the parties' stipulations in the pre-trial equitable distribution order.
"As a general rule, this Court has noted that [a]ny material fact that has been in controversy between the parties may be established by stipulation." Plomaritis v. Plomaritis, 222 N.C. App. 94, 101, 730 S.E.2d 784, 789 (2012) (alteration in original) (internal quotation marks omitted). "A stipulation is an agreement between counsel with respect to business before a court[.]" Id. (internal quotation marks omitted). "[S]tipulations by the parties have the same effect as a jury finding; the jury is not required to find the existence of such facts; and nothing else appearing, they are conclusive and binding upon the parties and the trial judge." Crowder v. Jenkins, 11 N.C. App. 57, 63, 180 S.E.2d 482, 486 (1971). Thus, "[o]nce a stipulation is made, a party is bound by it and he may not thereafter take an inconsistent position." Plomaritis, 222 N.C. App. at 101, 730 S.E.2d at 789 (internal quotation marks omitted).
Nonetheless, "[s]tipulations may be set aside in certain circumstances." Id. at 106, 730 S.E.2d at 792. A party to a stipulation "who desires to have it set aside should seek to do so by some direct proceeding, and, ordinarily, such relief may or should be sought by a motion to set aside the stipulation in the court in which the action is pending, on notice to the opposite party." Id. (internal quotation marks omitted). "Application to set aside a stipulation must be seasonably made; delay in asking for relief may defeat the right thereto." Id. (internal quotation marks omitted). "Modification of a stipulation at the trial gives all parties immediate notice of the modification and allows the parties the opportunity to present additional evidence which may be required based upon the elimination of the stipulation." Id. at 107, 730 S.E.2d at 793.
In the present case, the trial court made the following finding with respect to the parties' pre-trial stipulation order: "[P]rior to the call of this case for trial, neither party ha[d] filed any motion nor ha[d] made any verbal request in open court or during the trial thereof, for any modification of said Pre-Trial Order." Our review of the record also shows that Husband made no formal motion to set aside the parties' pre-trial stipulation that the 125 Twin Bluff property was to be distributed to Wife at the hearing, although the trial court invited the parties to offer testimony and argument concerning which party wanted the 125 Twin Bluff property assigned to them in apparent disregard of the parties' pre-trial stipulation. Husband's counsel responded that "[his] client want[ed] it assigned to him[,]" and Wife's counsel similarly responded that his client "would like it assigned to her[.]" Neither party asserted that the distribution of the 125 Twin Bluff property was an issue to which the parties had previously stipulated and were consequently bound. Instead, when asked by his counsel why he wanted the 125 Twin Bluff property distributed to him, Husband responded: "Because me and [Wife] made an agreement. We had two lots there. And if something happened to us, her son would have a lot and my daughter would have a lot. And that's the only reason I want it, for my daughter and grand kids." When asked by her counsel whether she would "like to keep" the 125 Twin Bluff property, Wife responded: "Yes. I would." The trial court then announced that it would assign the 125 Twin Bluff property to Husband, to which Wife's counsel replied only: "Assign it to [Husband]?" and the court confirmed: "Yes." Wife did not otherwise question the trial court's distribution of the 125 Twin Bluff property to Husband.
With respect to the Hickory Fork property, the parties' counsel had the following exchange with the trial court:
THE COURT: Do you want to be heard about [the Hickory Fork property], who's going to get it and —Thus, as with the 125 Twin Bluff property, at the equitable distribution hearing, Husband made no formal motion to set aside the parties' pre-trial stipulation and request that the trial court distribute the Hickory Fork property to Husband rather than Wife in contravention of the terms of the parties' pre-trial stipulations, although the trial court invited the parties to offer testimony and argument on this issue, again, in apparent disregard of the terms of the pre-trial stipulation order. Nevertheless, since the parties' pre-trial stipulations concerning the 125 Twin Bluff and Hickory Fork properties were conclusive and binding upon the parties and the trial court, in the absence of any motion to set aside such stipulations, we conclude the court erred by deviating from the parties' pre-trial stipulations and distributing the 125 Twin Bluff and Hickory Fork properties to Husband rather than to Wife. Therefore, in the absence of any intervening motions to set aside the parties' pre-trial stipulations, we remand this matter for the trial court to reconsider the distribution of the 125 Twin Bluff and Hickory Fork properties in accordance with the parties' pre-trial stipulations.
[WIFE'S COUNSEL]: — Your Honor, my client wants this property. It looks like according to the pretrial order, that was the agreement. It looks like what the parties had agreed on, that my client wanted this property and would receive it.
. . . .
[HUSBAND'S COUNSEL]: . . . At the [last] hearing [on Husband's motion for interim distribution, which the trial court granted by order on 20 May 2014 with respect to the Hickory Fork property,] I think we amended our pretrial order to allow that to be distributed to [Husband]. There was an issue. I think the [c]ourt acknowledged that because you gave him possession of it at the hearing. So I'd ask the [c]ourt to continue — grant [Husband] ownership of the property.
II.
Wife next contends the trial court failed to make sufficient findings of fact in support of its valuations of several specified marital assets.
"Where, as here, the trial court sits without a jury, the judge is required to find the facts specially and state separately its conclusions of law thereon and direct the entry of the appropriate judgment." Coble v. Coble, 300 N.C. 708, 712, 268 S.E.2d 185, 188-89 (1980) (internal quotation marks omitted). The purpose of "the requirement that the court make findings of those specific facts which support its ultimate disposition of the case is to allow a reviewing court to determine from the record whether the judgment — and the legal conclusions which underlie it — represent a correct application of the law." Id. at 712, 268 S.E.2d at 189. "The requirement for appropriately detailed findings is thus not a mere formality or a rule of empty ritual; it is designed instead to dispose of the issues raised by the pleadings and to allow the appellate courts to perform their proper function in the judicial system." Id. (internal quotation marks omitted).
A. 968 Clark House Farm Property and Lot 37-C at 125 Twin Bluff Trail
In its equitable distribution judgment, the trial court determined that the net value of the property located at 968 Clark House Farm Road, in Stuart, Virginia ("the 968 Clark House Farm property"), was $3,000.00. The trial court also determined that the net value of the property located on Lot 37-C at 125 Twin Bluff Trail in the Twin Harbor Camping Resort in Lake Tillery in Montgomery County, North Carolina ("the Lot 37-C property"), was $10,000.00. With respect to the 968 Clark House Farm property, Wife contends only that the trial court erred by failing to "explain[] why" it did not give greater weight to Wife's testimony that the property "had no net value." With respect to the Lot 37-C property, Wife contends the trial court "gave no reasoning at the [h]earing or in the [j]udgment as to why it decided to distribute the [lot] to [Husband] for $10,000 instead of to [Wife] for $6,000," which was in accordance with Husband's testimony that the fair market value of the Lot 37-C property as of the date of separation was $10,000.00, rather than with Wife's valuation of $6,000.00.
However, the trial court is not "require[d] . . . to recite in its order all evidentiary facts presented at hearing," Quick v. Quick, 305 N.C. 446, 451, 290 S.E.2d 653, 657 (1982), and is only required to find "specially . . . those material and ultimate facts from which it can be determined whether the findings are supported by the evidence and whether they support the conclusions of law reached." Id. Moreover, because "[t]he credibility of the evidence in an equitable distribution trial is for the trial court," Grasty v. Grasty, 125 N.C. App. 736, 739, 482 S.E.2d 752, 754, disc. review denied, 346 N.C. 278, 487 S.E.2d 545 (1997), and "[t]he trial court, as the finder of fact in an equitable distribution case, has the right to believe all that a witness testified to, or to believe nothing that a witness testified to, or to believe part of the testimony and to disbelieve part of it," id. (citation and internal quotation marks omitted), we overrule these issues on appeal.
B. 1580 Clark House Farm Property
Wife next contends there was no competent evidence to support the trial court's valuation of the property located at 1580 Clark House Farm Road, in Stuart, Virginia ("the 1580 Clark House Farm property"). At trial, Wife offered evidence that the purchase price of this property in 2010 was $104,000.00, that there was a mortgage debt of $97,000.00 on the property, and that there had been no substantial improvements to the property since the parties became its joint owners. Husband offered evidence that the purchase price of this property in 2010 was almost $105,000.00, that the property had undergone improvements during the parties' ownership including refinishing the hardwood floors, replacing or repairing the roof, and painting the exterior of the residence, and that, as a result of the improvements, the fair market value of the property as of the date of separation was close to $150,000.00. After hearing the evidence presented, the trial court provided the following: "All right. Thank you. I'll let you know my decision after I think about the valuation issue." The court then found in its judgment that the fair market value of the 1580 Clark House Farm property was $120,000.00, that the mortgage debt on this property was $97,000.00, and that the net value of this property was $23,000.00.
Although "[t]his Court is not here to second-guess values of marital and separate property where there is evidence to support the trial court's figures," Crutchfield v. Crutchfield, 132 N.C. App. 193, 197, 511 S.E.2d 31, 34 (1999) (internal quotation marks omitted), "[w]hen there is conflicting testimony as to value, the trial court may not merely guess at a figure somewhere in between, but may arrive at such a middle figure after considering the factors involved in the various appraisals." Nix v. Nix, 80 N.C. App. 110, 115, 341 S.E.2d 116, 119 (1986) (emphasis added). Because neither the record nor the judgment indicate upon what basis the trial court determined that the fair market value of the 1580 Clark House Farm property as of the date of separation was below half of the average of the two fair market valuations for the property presented at the hearing, we remand this matter for the trial court to reconsider the valuation of the 1580 Clark House Farm property in light of the evidence presented and to make findings in accordance with its determination.
C. B&E Sports and Groceries and NewBridge Bank Business Checking Account
Wife next contends there was no competent evidence to support the trial court's $3,851.00 valuation of both the inventory and assets of the parties' B&E Sports and Groceries ("the store") and the NewBridge Bank business checking account ending in 6981 ("the NewBridge account"). At trial, Husband testified that, as of the date of separation, of the $19,851.14 that was in the NewBridge account — which the parties agree was a joint banking account — only $3,851.14 was marital property, while $15,000.00 of the balance were separate funds Husband received as an inheritance from his mother's estate, which Husband deposited into the NewBridge account in order to accrue additional interest. Wife testified she did not believe that Husband received $15,000.00 of the balance of the NewBridge account as an inheritance from his mother's estate, and asserted that both the $15,000.00 and the $3,851.14 funds in the account were marital property. Because this determination was based on the trial court's consideration of the weight to give Husband's and Wife's respective testimony, we cannot conclude the trial court abused its discretion by appearing to give greater weight to Husband's testimony that $15,000.00 of the funds in the NewBridge account were Husband's separate property and classifying, valuing, and distributing only $3,851.00 of the NewBridge account as marital property.
Husband's Exhibit 6 in the record is the final statement issued from the NewBridge account. The parties' respective testimony concerning the valuation of this account — which carried a balance from the last statement issued of $19,851.14 — addresses only $18,851.14 of the funds. The statement shows that a "closing withdrawal" in the amount of $1,000.00 was debited from the account on 14 November 2012. Because the parties do not seek to account for these funds in their argument, we will not address these funds further. --------
Nonetheless, although Husband and Wife gave testimony that the value of the inventory and assets of the store were $25,000.00, $50,000.00, and other values in between, the trial court's judgment does not appear to have attributed any value to this asset. Instead, the judgment indicates that the court valued both the store and the NewBridge account at $3,851.00, which suggests that the trial court did not give weight to the testimony of either party regarding the valuation of the store. Therefore, we conclude that the trial court failed to value the store based on the evidence presented. Accordingly, we remand this matter to the trial court to reconsider the valuation of the store in light of the evidence presented and to make findings in accordance with its determination.
We note that Wife asserted that "many other disputed items in the marital estate were not properly distributed by the trial court by weighing the evidence and making ultimate findings of fact," and that "such an analysis would take more than the remainder of pages allowed under the Rule [sic] of Appellate Procedure." However, Wife's brief was well below the page and word-count limits set out in Rule 28(j)(2)(A) and (B) of the North Carolina Rules of Appellate Procedure. See N.C.R. App. P. Rule 28(j)(2)(A)-(B) (setting out the page and word-count limits for proportional and nonproportional type). Since "[i]t is not the role of this Court to construct arguments for the parties, or to flush out incomplete arguments," Estate of Hurst ex rel. Cherry v. Jones, 230 N.C. App. 162, 178, 750 S.E.2d 14, 25 (2013), we decline Wife's invitations to scrutinize the sufficiency of the evidence and findings with respect to each asset distributed in the judgment, or to order that "new evidence be taken on each item of the marital estate[.]" (Emphasis added.)
III.
Lastly, Wife contends the trial court failed to make sufficient findings of fact to support its conclusions that Husband "[wa]s not a supporting spouse for alimony purposes" and that Wife "[wa]s not a dependent spouse for alimony purposes." We agree.
N.C. Gen. Stat. § 50-16.3A provides that the trial court "shall award alimony to the dependent spouse upon a finding that one spouse is a dependent spouse, that the other spouse is a supporting spouse, and that an award of alimony is equitable after considering all relevant factors, including those set out in subsection (b) of this section." N.C. Gen. Stat. § 50-16.3A(a) (2015). "[I]n other words, the court must determine whether one spouse would be unable to maintain his or her accustomed standard of living, established prior to separation, without financial contribution from the other." Vadala v. Vadala, 145 N.C. App. 478, 481, 550 S.E.2d 536, 538 (2001) (internal quotation marks omitted). "The [trial] court shall set forth the reasons for its award or denial of alimony[,]" N.C. Gen. Stat. § 50-16.3A(c), and "shall make a specific finding of fact on each of the factors in subsection (b) of this section if evidence is offered on that factor," id., which factors include: "[t]he relative earnings and earning capacities of the spouses;" "[t]he amount and sources of earned and unearned income of both spouses, including, but not limited to, earnings, dividends, and benefits such as medical, retirement, insurance, social security, or others;" and "[t]he relative needs of the spouses[.]" N.C. Gen. Stat. § 50-16.3A(b)(2), (4), and (13).
"The trial court must at least make findings sufficiently specific to indicate that the trial judge properly considered each of the factors . . . for a determination of an alimony award." Vadala, 145 N.C. App. at 479, 550 S.E.2d at 538 (omission in original) (internal quotation marks omitted). "[T]he trial court's findings of fact must be more than mere evidentiary facts; they must be the specific ultimate facts . . . sufficient for [an] appellate court to determine that the judgment is adequately supported by competent evidence." Williamson v. Williamson, 140 N.C. App. 362, 363-64, 536 S.E.2d 337, 338 (2000) (omission and second alteration in original) (internal quotation marks omitted). "In the absence of such findings, appellate courts cannot appropriately determine whether the order of the trial court is adequately supported by competent evidence, and therefore such an order must be vacated and the case remanded for necessary findings." Vadala, 145 N.C. App. at 479, 550 S.E.2d at 538 (internal quotation marks omitted).
In the present case, both Husband and Wife testified in detail about the amounts and sources of their respective monthly incomes and current monthly expenses. Nonetheless, the trial court's findings with respect to the issue of alimony consisted of the following:
14. That both parties presented evidence on the issue of alimony.
15. That [Husband] is retired and has a net income of
$1,800.00 per month. [Husband] has reasonable monthly living expenses and his monthly payments for marital debts are reasonable.Based upon these findings, the trial court concluded that Husband "[wa]s not a supporting spouse for alimony purposes" and that Wife "[wa]s not a dependent spouse for alimony purposes." However, in the absence of sufficient ultimate findings in support of these conclusions, the conclusions "constitute bare conclusion[s] unaccompanied by the supporting grounds for [such] conclusion." See Williamson, 140 N.C. App. at 365, 536 S.E.2d at 339 (alterations in original) (internal quotation marks omitted). Therefore, we vacate the portion of the trial court's order concerning Wife's counterclaim for alimony and remand this matter to the trial court with instructions that the court make sufficient ultimate findings of fact to support its conclusions of law concerning Wife's counterclaim for alimony.
16. That [Husband] does not have the funds available or the ability to pay alimony to [Wife] as of the date of trial and is not a supporting spouse.
17. That [Wife] earns a limited income. [Wife] has reasonable monthly living expenses.
18. That [Wife] has the ability to meet her needs and expenses on a monthly basis and is not a dependent spouse.
IV.
In summary, we conclude that the trial court erred by deviating from the parties' pre-trial stipulations and distributing the 125 Twin Bluff and Hickory Fork properties to Husband rather than to Wife, and remand this matter for the trial court to reconsider the distribution of the 125 Twin Bluff and Hickory Fork properties in accordance with the parties' pre-trial stipulations. We overrule Wife's challenges to the trial court's valuations of the 968 Clark House Farm property and the Lot 37-C property. We vacate the trial court's valuations of both the 1580 Clark House Farm property and the store, and we remand these matters to the trial court to reconsider the valuations of the 1580 Clark House Farm property and of the store, in light of the evidence presented, and to make findings in accordance with its determinations concerning these assets. We decline Wife's invitation to scrutinize the sufficiency of the evidence and findings with respect to each asset distributed in the judgment, or to order that "new evidence be taken on each item of the marital estate[.]" Finally, we vacate the portion of the trial court's order concerning Wife's counterclaim for alimony and remand this matter to the trial court with instructions that the court make sufficient ultimate findings of fact to support its conclusions of law with respect to this issue.
AFFIRMED IN PART; VACATED AND REMANDED IN PART.
Judges DILLON and DAVIS concur.
Report per Rule 30(e).
Based on these findings, the trial court determined that the date of separation and, hence, the date of valuation, was 25 September 2012.