Peltzer v. Peltzer

• Citation: 732 S.E.2d 357
• Decision Date: 18 September 2012
• Docket Number: No. COA12–41.,COA12–41.
• Parties: Sonia Rapaport PELTZER, Plaintiff, v. David Eric PELTZER, Defendant.
• Court: Court of Appeal of North Carolina (US)

732 S.E.2d 357

Sonia Rapaport PELTZER, Plaintiff,

v.David Eric PELTZER, Defendant.

No. COA12–41.

Court of Appeals of North Carolina.

Sept. 18, 2012.

Appeal by defendant from order entered 4 May 2011 by Judge C. Thomas Edwards in District Court, Catawba County. Heard in the Court of Appeals 16 August 2012.Wyrick Robbins Yates & Ponton LLP, Raleigh, by K. Edward Greene and Tobias S. Hampson, for plaintiff-appellee.

Crowe & Davis, P.A., Conover, by H. Kent Crowe, for defendant-appellant.

STROUD, Judge.

David Eric Peltzer (“defendant”) appeals from the trial court's equitable distribution order. For the following reasons, we affirm in part the trial court's order and remand for clarification of a finding of fact.

I. Background

On 1 March 2006, Sonia Rapaport Peltzer (“plaintiff”) filed a complaint alleging claims for inter alia divorce from bed and board and equitable distribution. On 2 May 2006, defendant filed his answer to plaintiff's complaint raising a counterclaim for inter alia equitable distribution, which was subsequently amended on 8 May 2006. On 17 May 2006, plaintiff filed an equitable distribution affidavit, disclosing “all marital and separate property known to [her] [,]” which was subsequently amended on 1 June 2006 and 5 June 2007. The parties were granted a divorce by judgment entered 7 December 2006. On 27 February 2007, defendant filed an equitable distribution affidavit, disclosing “all marital and separate property.” On 14 May 2009, the trial court entered an equitable distribution pretrial order, stating the parties' stipulations and limiting the issues for trial. On 10 July 2009, defendant filed a motion regarding the equitable distribution trial, requesting that plaintiff have a ring appraised, the deed for the timeshare be returned to defendant, the pretrial order be amended to permit defendant to present expert testimony regarding values of the marital residence, and to allow defendant to “call Mark Snell, CPA as an expert witness.” On 3 August 2009, the trial court entered an order, requiring plaintiff to submit the ring for appraisal and defendant to submit his contentions as to the date of separation value of his medical practice, as he had failed to state a value in his Equitable Distribution Affidavit. On 14 August 2009, defendant submitted his list of expert witnesses he planned to call at trial, including Mark A. Snell, CPA. Following a trial from 12 to 16 October 2009, the trial court on 4 May 2011, entered an equitable distribution order. Defendant filed notice of appeal from the trial court's equitable distribution order on 2 June 2011. On appeal, defendant argues that (1) “the trial court erred in making an unequal division of martial property[;]” (2) the equitable distribution order “does not contain any provision indicating [he] has sufficient liquid assets to satisfy the distributive award[;]” (3) “the trial court committed reversible error by failing to consider post[-]separation payments made by the spouse for the benefit of the marital estate[;]” (4) “the trial court reversibly erred by adopting a false value of the defendant's interest in Newton Family Practice and did not consider the tax consequences with respect to its valuation [;]” and (5) “Because of the multitude of errors in classification, valuation, and distribution” defendant is entitled to a new equitable distribution trial.

II. Standard of review

We have stated that

[t]he standard of review on appeal from a judgment entered after a non-jury trial is whether there is competent evidence to support the trial court's findings of fact and whether the findings support the conclusions of law and ensuing judgment. The trial court's findings of fact are binding on appeal as long as competent evidence supports them, despite the existence of evidence to the contrary.

Pegg v. Jones, 187 N.C.App. 355, 358, 653 S.E.2d 229, 231 (2007) (citations and quotation marks omitted), aff'd per curiam,362 N.C. 343, 661 S.E.2d 732 (2008). “The trial court's findings need only be supported by substantial evidence to be binding on appeal. We have defined substantial evidence as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Pulliam v. Smith, 348 N.C. 616, 625, 501 S.E.2d 898, 903 (1998) (citations and quotation marks omitted).

As to the actual distribution ordered by the trial court, “[w]hen reviewing an equitable distribution order, the standard of review is limited to a determination of whether there was a clear abuse of discretion. A trial court may be reversed for abuse of discretion only upon a showing that its actions are manifestly unsupported by reason.” Petty v. Petty, , 680 S.E.2d 894, 898 (2009) (citations and quotation marks omitted), disc. review denied and appeal dismissed,363 N.C. 806, 691 S.E.2d 16 (2010).

Stovall v. Stovall, 205 N.C.App. 405, 407–08, 698 S.E.2d 680, 683 (2010). The trial court's unchallenged findings of fact are presumed to be supported by competent evidence and are binding on appeal. Best v. Gallup, –––N.C.App. ––––, ––––, 715 S.E.2d 597, 598 (2011) (citation omitted), appeal dismissed and disc. review denied,––– N.C. ––––, 724 S.E.2d 505 (2012).

III. Unequal Division

Defendant argues that the trial court abused its discretion in making an unequal division of marital property. Defendant argues that the marital property was unequally divided, with plaintiff receiving 80% and him receiving only 20% of the marital property and that the trial court failed to make findings explaining why an equal division would not be equitable. In illustrating his point, defendant states that plaintiff received $85,000 of his separate property, in a Fidelity account, as stated in findings of fact 68 and 69, but no credit was given to him for this receipt of his separate property. Defendant further argues that the trial court made no specific findings as to the factors contained in N.C. Gen.Stat. § 50–20(c) in its unequal division but only “broad statements” in findings 90–92 and 99. Defendant concludes that because of these errors the case should be remanded for further findings.

Plaintiff counters that defendant actually received an “unequal distribution [of] 45% to 55% in favor of Defendant.” (emphasis in original). Plaintiff argues that the trial court “specifically considered a number of distributional factors [from N.C. Gen.Stat. § 50–20(c) ] in awarding Defendant an unequal distribution” in its findings of fact, which supported the trial court's “determination [that] an unequal distribution was equitable[.]” Plaintiff argues that defendant's argument that he is entitled to a dollar-for-dollar credit for the $85,000 fails because (1) the trial court properly considered this post-separation payment of separate property from investment accounts as a distributive factor in lieu of giving defendant a dollar-for-dollar credit and since there was a 55% distribution in his favor this did not result in any prejudice to him and (2) defendant was not entitled to distribution of the post-separation use of his separate property because separate property is not subject to equitable distribution.

N.C. Gen.Stat. § 50–20(c) provides that

[t]here shall be an equal division by using net value of marital property and net value of divisible property unless the court determines that an equal division is not equitable. If the court determines that an equal division is not equitable, the court shall divide the marital property and divisible property equitably. The court shall consider all of the following factors under this subsection[.]

N.C. Gen.Stat. § 50–20(c) (2007). The statute goes on to list distributive factors (1) through (12). See id. Where the trial court decides that an unequal distribution is equitable, the court must exercise its discretion to decide how much weight to give each factor supporting an unequal distribution. Mugno v. Mugno, 205 N.C.App. 273, 278, 695 S.E.2d 495, 499 (2010) (citation omitted). We have further stated that “[t]he trial court must ... make specific findings of fact regarding each factor specified in N.C. Gen.Stat. § 50–20(c) (2001) on which the parties offered evidence.” Embler v. Embler, 159 N.C.App. 186, 188, 582 S.E.2d 628, 630 (2003) (citing Rosario v. Rosario, 139 N.C.App. 258, 260–61, 533 S.E.2d 274, 275–76 (2000)). A blanket statement that the trial court considered or gave “due regard” to the distributional factors listed in N.C. Gen.Stat. § 50–20(c) is insufficient as a matter of law. Rosario, 139 N.C.App. at 262, 533 S.E.2d at 276.

First, we note that it appears that defendant has miscalculated the percentages of the marital estate awarded to each party. The trial court found the net marital estate to be $886,234.00, which is not challenged by defendant.See Best, ––– N.C.App. at ––––, 715 S.E.2d at 598. Of this amount, defendant received property and debts with a net value of $708,161.00. Defendant was also ordered to pay a distributive award of $220,732.00, secured by the marital residence located in Newton, North Carolina. Therefore, defendant retained $487,429.00 of the marital estate, amounting to an unequal distribution of 55% to 45% in defendant's favor, rather than the 80% to 20% division in plaintiff's favor, as defendant contends. We also note that it would have been helpful for the order to be more specific as to the distributional percentages; as noted in more detail below, the equitable distribution order is disorganized and quite difficult to understand, but by using some basic math, we can determine the distributional percentages.

Also, contrary to defendant's arguments, the trial court concluded that “an Unequal Distribution of the Net Marital Estate is Equitable.” In support of this conclusion, the trial court made several specific findings of fact related to several of the equitable distribution factors listed in N.C. Gen.Stat. § 50–20(c). We concede that picking out the findings which address the factors...