Asare v. Asare, COA20-708

Docket NºCOA20-708
Citation281 N.C.App. 217, 869 S.E.2d 6
Case DateJanuary 04, 2022
CourtCourt of Appeal of North Carolina (US)

281 N.C.App. 217
869 S.E.2d 6

Ernestina ASARE, Plaintiff,
Denis ASARE, Defendant.

No. COA20-708

Court of Appeals of North Carolina.

Filed January 4, 2022

No brief filed for plaintiff-appellee.

Marshall & Taylor, PLLC, by Travis Taylor, Raleigh, for defendant-appellant.

STROUD, Chief Judge.

869 S.E.2d 10
281 N.C.App. 218

¶ 1 Denis Asare ("Husband") appeals from the trial court's order for alimony, attorney's fees, and equitable distribution. Husband asserts the trial court abused its discretion in several respects, including arguments related to the trial court's findings of fact, classification of property, and equitable distribution. Because one of the trial court's findings of fact regarding classification of divisible property was not supported by the evidence, we remand for entry of a new order with new findings as to the classification and valuation of the post-separation appreciation of the Vanguard account and for the trial court to make an equitable distribution based upon the new findings. The trial court's other findings of fact are supported by the evidence, and we find no abuse of discretion and therefore affirm the trial court's order as to alimony.

I. Background

¶ 2 Husband and Ernestina Asare ("Wife") were married on 25 March 1995. The parties had four children. Wife filed a complaint for equitable distribution, postseparation support, alimony, and attorney's fees on 24 May 2016. In the complaint, Wife asserted that the date of separation was 18 August 2015 when Husband "willfully abandoned" Wife. Wife alleged that Husband "had been commuting for work to Virginia during the week, returning to the former marital residence on weekends and holidays." Husband filed an answer on 8 July 2016, asserting that the date of separation was 1 April 2012. In the answer, Husband admitted that the parties’ two children "resided with the parties at [the marital home] in Morrisville, North Carolina 27560 from 2006 until August 2015, when each of the younger children enrolled in college."

¶ 3 On 26 January 2017, the trial court conducted a hearing regarding postseparation support, attorney's fees, and the parties’ date of

281 N.C.App. 219

separation. On 26 January 2017, the trial court entered an order concluding the date of separation was 18 August 2015.

¶ 4 On 6 February 2017, Husband filed motions for relief from judgment, new trial and amendment of findings pursuant to Civil Procedure Rules 52, 59, and 60 from the trial court's order establishing the date of separation. Husband contended that the evidence presented did not support several findings of fact and one conclusion of law. The trial court denied Husband's motions on 30 May 2017.

¶ 5 On 14 February 2017, the trial court entered an order for postseparation support and attorney's fees in favor of Wife. The trial court ordered Husband to pay monthly postseparation support to Wife in the amount of $3,400.00 effective 1 September 2015, with the obligation remaining until the first of the following occurred: 1 August 2018, the entry of an order allowing or denying alimony to Wife, dismissal of Wife's alimony claim, or as provided in North Carolina General Statute § 50-16.9(b). The trial court also ordered Husband to pay a minimum of $50.00 per month to be applied to satisfy postseparation support arrears in the amount of $19,131.00 and $4,000.00 in Wife's attorney's fees.

¶ 6 On 23 February 2017, Husband filed motions for relief from judgment, amendment of findings, and for a new trial on the postseparation support order based upon Civil Procedure Rules 52, 59, and 60. Husband challenged several findings of fact and conclusions of law. He also argued that he had not received a fair trial for several reasons, including "time constraints imposed by the Court" that prevented Husband from submitting "much of the evidence he wanted to present to refute [Wife]’s testimony[,]" that Husband was "not afforded the opportunity to consult with his attorney to cross-examine an important witness[,]" and that the trial court had "interrupted [Husband]’s attorney and prevented him from completing questions."

¶ 7 On 26 June 2017, the trial court entered an order denying Husband's motions for relief from judgment and for a new trial

869 S.E.2d 11

and granting in part Husband's motion to amend the findings of fact. In addressing Husband's motion, the trial court found that "[i]n reviewing the totality of the evidence, the Court finds that there was sufficient credible evidence to support these findings of fact about which [Husband] complains except as specifically noted herein."

¶ 8 On 21 October 2019, the trial court heard the claims of equitable distribution and alimony. As relevant to the issues on appeal, the evidence showed that at the time of the trial, Wife was sixty years of age and residing at the former marital home in Morrisville, North Carolina

281 N.C.App. 220

("marital home"), and Husband was sixty-seven years of age and residing with his nephew in West Legon, Ghana. The parties moved to North Carolina in 2006 after Husband became employed by Blue Cross Blue Shield of North Carolina. In October 2011, Husband started employment with Corvesta/Delta Dental ("Corvesta") in Roanoke, Virginia. In 2007, the parties purchased the marital home, which the parties agreed was originally held by the parties as tenants by the entirety.

¶ 9 During Wife's presentation of evidence, the trial court heard testimony from real estate appraisal expert Michael Ogburn ("Mr. Ogburn"). Mr. Ogburn, who was appointed by the trial court to appraise the marital home, testified that the fair market value of the home on 18 August 2015—the date of separation—was $455,000.00. Mr. Ogburn based his testimony on his appraisal report, which was admitted into evidence. Mr. Ogburn conducted another appraisal on 15 August 2018 and valued the marital home at $496,500.00. Mr. Ogburn testified that the valuation was based on a "direct sales comparison approach using properties within that immediate market[.]" Mr. Ogburn noted there was "a strong market with demand exceeding supply" which contributed to the increase in property value, while also noting the marital home was "over built" for the neighborhood, meaning the marital home was more valuable than neighboring properties.

¶ 10 The trial court next heard testimony from Bonnie Bowen ("Ms. Bowen"), called by Husband and stipulated by the parties as an expert witness in valuation of retirement benefits. Ms. Bowen was retained by Husband to determine the marital and separate components of Husband's retirement accounts. Ms. Bowen testified that the retirement accounts had a total value of $726,032.00 at the date of separation, $413,897.00 of which was marital and $312,135.00 of which was separate. By the date of distribution on 31 March 2019, the retirement accounts grew to a total of $1,041,991.00, with $523,763.00 marital and $518,228.00 separate. Ms. Bowen gave extensive testimony regarding her methods in tracking Husband's assets and in determining which portions were marital and separate.

¶ 11 Husband testified that he was sixty-seven years old at the time of the hearing, and he resided in West Legon, Accra, Ghana. Husband stated that he had moved to Ghana in October 2018 after selling a condominium in Roanoke, Virginia ("Roanoke condominium") because he "had nowhere to stay." When asked to clarify if Ghana was his permanent residence, Husband responded that he had moved to Ghana because he lost his job and had not "found anything," making it "futile ... to stay in Roanoke, because there were very limited job opportunities."

281 N.C.App. 221

¶ 12 Regarding his employment and qualifications, Husband testified that he had two MBA degrees and was last employed with Corvesta Delta Dental in February 2018. Husband stated that he received severance pay for six months, received "around $6,000" in unemployment benefits in 2018, and was currently receiving income from Social Security. Husband estimated that he was receiving approximately $2,500.00 per month with deductions for Medicare coverage but noted that he did not "remember the exact amount" because he did not have access to the accounts while staying in Ghana. Husband stated that he was not receiving any income from any other sources at the time of the hearing. Husband stated that he had withdrawn $40,000.00 from his Vanguard retirement account a few months earlier "as a result of a freeze that was put in [his] account and then that money escrow being given to [Wife]." Husband also stated that he sold the Roanoke condominium the year prior

869 S.E.2d 12

and received "[a]bout $80,000" in proceeds.

¶ 13 Husband testified that he owned a house in Acworth, Georgia ("Georgia home") on the date of separation and that the Georgia home was purchased during the marriage. Husband testified the Georgia home was sold on 9 July 2017 for $223,000.00, netting $92,122.91 in proceeds. The proceeds were awarded to Wife as an interim distribution on 17 July 2018....

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