Armstrong v. Armstrong

• Decision Date: 02 June 1988
• Docket Number: No. 235PA87,235PA87
• Citation: 322 N.C. 396,368 S.E.2d 595
• Court: North Carolina Supreme Court
• Parties: Martha G. ARMSTRONG v. Ivan O. ARMSTRONG.

Page 595

368 S.E.2d 595

322 N.C. 396

Martha G. ARMSTRONG v. Ivan O. ARMSTRONG.

No. 235PA87.

Supreme Court of North Carolina.

June 2, 1988.

Merritt & Stroud by Timothy E. Merritt, Jacksonville, for plaintiff-appellee.

Charles William Kafer, New Bern, for defendant-appellant.

MITCHELL, Justice.

The defendant has brought forward several assignments of error and contends that, on the facts of this case, any application of the Equitable Distribution Act affecting his military retirement pension violates his rights to equal protection of the laws and due process, that the trial court failed to make adequate findings of fact when ordering an equal division of part of his pension as marital property, and that such equal division was not supported by the trial court's findings. We will address the defendant's arguments seriatim.

The evidence before the trial court tended to show that the plaintiff and defendant were married on 1 February 1951. Four children were born to the marriage. During the marriage, the defendant-husband served in the United States Marine Corps for seventeen years and eleven months. He retired from the Marine Corps on 31 January 1969. As a result of his military service, he receives military pension payments in the net amount of $750.87 per month.

The evidence tended to show that, after the defendant's retirement from the military, the plaintiff and defendant operated a service station for ten years. During that time, neither of them was paid a salary. Money earned from the operation of the service station was reinvested in the business. The evidence also tended to show that the parties later invested in and operated a Hertz Rent-A-Car franchise.

The parties separated on 1 April 1983, and the plaintiff's complaint seeking an absolute divorce and equitable distribution of marital property was filed on 14 May 1984. The defendant filed an answer and counterclaim.

The plaintiff testified that she was employed by the rental car agency and had a net monthly income of approximately $1,100. She had a total of $1,635 in her checking and savings accounts. The plaintiff testified that she also had certain debts on which she made monthly payments.

The defendant testified that he was unemployed. He also testified that his only source of income was his military retirement pay.

Evidence tended to show that both of the parties suffered from medical disorders. They stipulated that the defendant suffered from paranoid schizophrenia at the time of the trial. He had been hospitalized for his psychological disorders in 1978. A psychologist testified that it was questionable whether the defendant would be able to maintain full-time employment. The defendant also has a hearing disability necessitating the use of hearing aids in both ears, and his hand was injured at the time of trial.

The evidence also tended to show that the plaintiff suffered from medical problems. She had undergone bladder surgery three times, the last time being in 1979 or 1980. She had been advised that she might need additional surgery which would result in her wearing an external bladder device. The plaintiff testified that she suffered from a rare eye disorder which had caused her to lose her peripheral vision. She is required to have her eyes examined every three months.

On 14 November 1985, the trial court entered judgment granting an absolute divorce and ordering an equal division of all marital property. The trial court valued the parties' marital property at $54,511.07 and concluded that it should be divided equally. The defendant's military retirement benefits were not included in this valuation. By separate findings and conclusions, the trial court determined that the defendant's military pension was marital property subject to equitable distribution. Pursuant to the parties' stipulation that the defendant's rights in eighty-seven percent of the military pension accrued during the marriage, the trial court awarded the plaintiff one-half of that amount, or forty-three and one-half percent of the monthly retirement benefits.

The defendant's motion for a new trial, or in the alternative for amendment of the judgment, was denied by the trial court in an order dated 27 February 1986. The defendant appealed to the Court of Appeals, which affirmed the trial court.

The defendant first contends that Article X, section 4 of the Constitution of North Carolina violates the federally protected rights of married men to equal protection and due process. U.S. Const. amend. XIV. He argues that Article X, section 4 prevents property acquired by married women from becoming marital property subject to equitable distribution but does not contain similar protections as to property acquired by married men. The defendant contends that since Article X, section 4 lacks any such reciprocal protection, property acquired by married men can be subject to equitable distribution under the Equitable Distribution Act, N.C.G.S. §§ 50-20 and 50-21, while property acquired by married women cannot.

Article X, section 4 provides in pertinent part:

The real and personal property of any female in this State acquired before the marriage, and all property, real and personal, to which she may, after marriage, become in any manner entitled, shall be and remain the sole and separate estate and property of such female, and shall not be liable for any debts, obligations, or engagements of her husband, and may be devised and bequeathed and conveyed by her, subject to such regulations and limitations as the General Assembly may prescribe....

We find it unnecessary to consider or decide any question relating to either the construction of this section proposed by the defendant or his argument that, so construed, it violates the Fourteenth Amendment. Instead, we conclude that the defendant does not have standing to raise such issues in the present case.

The essence of the concept of standing is that no person is entitled to assail the constitutionality of a law or act unless it affects that person adversely. See Grace Baptist Church v. City of Oxford, 320 N.C. 439, 358 S.E.2d 372 (1987). Nothing in the record on appeal indicates that Article X, section 4 was applied in the present case. There is no indication that any property acquired by the plaintiff-wife during the marriage was excluded from equitable distribution pursuant to this section or for any other reason. To the contrary, the record clearly shows that Article X, section 4 did not adversely affect the defendant, since all property acquired by both parties during the marriage was determined to be marital property and was subjected to equitable distribution. Since the defendant has failed to show that his property was treated differently than the plaintiff's, he has failed to show that he has been or will be adversely affected by Article X, section 4. Therefore, he lacks standing to raise the issue of whether the section violates the Fourteenth Amendment. This assignment of error is overruled.

The defendant next argues that the Equitable Distribution Act [hereinafter the Act], N.C.G.S. §§ 50-20 and 50-21, as applied by the trial court in the present case, denies him equal protection and due process in violation of the Fourteenth Amendment to the Constitution of the United States and Article I, section 19 of the Constitution of North Carolina. The defendant contends that subjecting his military pension to equitable distribution amounted to a retroactive application of the Act and a taking without compensation. His argument is premised on the facts that the Act did not exist at the time the parties married or at the time his military pension rights accrued. Additionally, the parties were separated before the Act was amended to make military pensions subject to equitable distribution. We conclude that the defendant was not denied any constitutional right by the trial court's application of the Act to all property acquired by the defendant during the marriage but before the separation.

In 1981, our legislature provided a framework for the equitable division of marital property upon divorce by enacting the Equitable Distribution Act, now codified as N.C.G.S. §§ 50-20 and 50-21. See White v. White, 312 N.C. 770, 324 S.E.2d 829 (1985). In the Uniform Services Former Spouses' Protection Act [hereinafter USFSPA], Congress authorized the states, after 25 June 1981, to classify military retirement pay as either marital or separate property and to provide for direct payments to a former spouse who was married to the member for at least ten years while the member performed military service. 10 U.S.C. § 1408(c)(1) (1983). In response to this federal enactment, our legislature amended the Equitable Distribution Act to include within its definition of marital property "all vested pension and retirement rights, including military pensions eligible under the federal ... [USFSPA]." N.C.G.S. § 50-20(b)(1) (1987). The amendment became effective 1 August 1983. 1985 N.C. Sess. Laws ch. 758, § 5.

By its terms, the Equitable Distribution Act becomes operative only after a husband and wife have separated and a claim for equitable distribution has been filed. N.C.G.S. § 50-21(a) (1987). The Act does not affect ownership of the spouses' property in any way during marriage. Nor does it prevent married persons from owning or disposing of property separately during the marriage, assuming no action seeking equitable distribution is pending. See id. With these principles in mind, we find meritless the defendant's claim that his rights to due process and equal protection were violated because the Act was applied retroactively and in a way which took his property without compensation.

Contrary to the defendant's arguments, the fact that he acquired property during marriage but prior to the effective date of the Act does not mean that he also acquired a vested right in the law governing the disposition of property upon divorce which...