Alexander v. Alexander

• Decision Date: 05 June 1984
• Docket Number: No. 8328DC391,8328DC391
• Citation: 315 S.E.2d 772,68 N.C.App. 548
• Court: North Carolina Court of Appeals
• Parties: Larry Douglas ALEXANDER v. Martha Cable ALEXANDER.

Page 772

315 S.E.2d 772

68 N.C.App. 548

Larry Douglas ALEXANDER v. Martha Cable ALEXANDER.

No. 8328DC391.

Court of Appeals of North Carolina.

June 5, 1984.

Gray, Kimel & Connolly, P.A. by David G. Gray, Asheville, for plaintiff.

Riddle, Shackelford & Hyler, P.A. by George B. Hyler, Jr., Asheville, for defendant.

WELLS, Judge.

In the record on appeal plaintiff has grouped nineteen exceptions under one assignment of error, and in his brief has presented fifteen of those exceptions in one argument. Plaintiff's exceptions, so lumped together, present issues of law as to whether the evidence supports findings of fact, as to whether the findings of facts support conclusions, and as to whether the judgment is supported by the evidence and conclusions. Such procedure is in clear violation of Rules 10 and 28 of the Rules of Appellate Procedure and therefore this appeal is subject to dismissal. Because of the important questions apparent in the appeal, we deem it appropriate, in our discretion, to consider plaintiff's appeal on its merits.

North Carolina's Equitable Distribution of Marital Property Act (the Act), N.C.Gen.Stat. § 50-20 and -21 (1983 Cum.Supp.), provides for the equitable distribution of marital property upon divorce. A threshold requirement of the Act is for the trial court, by appropriate findings of fact, to determine what property owned by the parties to the divorce constitutes "marital property." G.S. § 50-20(a). The rights of the parties to such property vest at the time of filing of the divorce action, G.S. § 50-20(k), but in a G.S. § 50-6 divorce (i.e., based on one year's separation) as is the case here, the property must be valued as of the time of separation of the parties, G.S. § 50-21(b). The division of property is to be accomplished by using "net value," G.S. § 50-20(c); but the statute does not define "net value." Resorting to accepted standards of statutory construction, we give the term "net value" its ordinary and commonly understood interpretation: i.e., market value, if any, less the amount of any encumbrance serving to offset or reduce market value.

Having determined what property has properly vested as marital property and its net value at the time of separation, the trial court must then make an equal division of such 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 equitably." G.S. § 50-20(c). In making these determinations, the court must consider the following factors:

(1) The income, property, and liabilities of each party at the time the division of property is to become effective;

(2) Any obligation for support arising out of a prior marriage;

(3) The duration of the marriage and the age and physical and mental health of both parties;

(4) The need of a parent with custody of a child or children of the marriage to occupy or own the marital residence and to use or own its household effects;

(5) The expectation of nonvested pension or retirement rights, which is separate property;

(6) Any equitable claim to, interest in, or direct or indirect contribution made to the acquisition of such marital property by the party not having title, including joint efforts or expenditures and contributions and services, or lack thereof, as a spouse, parent, wage earner or homemaker;

(7) Any direct or indirect contribution made by one spouse to help educate or develop the career potential of the other spouse;

(8) Any direct contribution to an increase in value of separate property which occurs during the course of the marriage;

(9) The liquid or nonliquid character of all marital property;

(10) The difficulty of evaluating any component asset or any interest in a business, corporation or profession, and the economic desirability of retaining such asset or interest, intact and free from any claim or interference by the other party;

(11) The tax consequences to each party; and

(12) Any other factor which the court finds to be just and proper.

We are persuaded, and so hold, that this statute sets forth a presumption of equal division which requires that the marital property be equally divided between the parties in the usual case and in the absence of some reason(s) compelling a contrary result. If, in a particular case, the court concludes after its careful and clearly articulated consideration of all of the statutory factors and of any non-statutory factor raised by the evidence which is reasonably related to the rights to, interest in, and need for the marital property, that an equal division is not...