Becker v. Becker
| Decision Date | 02 February 1988 |
| Docket Number | No. 8721DC601,8721DC601 |
| Court | North Carolina Court of Appeals |
| Parties | Creighton C. BECKER v. Byron Gustave BECKER. |
Morrow, Alexander, Tash, Long & Black by John F. Morrow and Ronald B. Black, Winston-Salem, for plaintiff-appellee.
White and Crumpler by Fred G. Crumpler, Jr. and Christopher L. Beal, Winston-Salem, for defendant-appellant.
The trial court concluded that an equal division of the marital estate was equitable in this case. Defendant does not take issue with this conclusion. Defendant's two assignments of error deal with the trial court's classifying as marital property: (1) the rental value of the marital residence for a period of approximately three years, during which time defendant occupied the marital residence to the exclusion of the plaintiff; and (2) classifying as marital property five oriental rugs and an antique secretary. We deal with these questions in order.
The trial court found that the marital residence had a rental value during the post-separation period when it was occupied by defendant. Defendant does not take issue with the value component found by the trial court, but argues that the trial court was without authority to include any such value in the marital estate. We agree with defendant. N.C.Gen.Stat. § 50-20(b)(1) provides:
(1) "Marital property" means all real and personal property acquired by either spouse or both spouses during the course of the marriage and before the date of the separation of the parties....
Thus, the statute makes it clear that for the purpose of classification of property (as either marital or separate) the marital estate is frozen as of the date of separation. While its components clearly may increase in value after separation and before distribution, see e.g. Swindell v. Lewis, 82 N.C.App. 423, 346 S.E.2d 237 (1986), no new property may be added to the marital estate after the date of separation.
Our decision does not mean that a trial court is foreclosed from considering the post-separation use of the marital residence in reaching its decision as to whether an equal distribution is equitable. G.S. § 50-20(c) contains provisions pertinent to this issue as follows:
(c) There shall be an equal division ... 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. Factors the court shall consider under this subsection are as follows:
* * *
(11a) Acts of either party to maintain, preserve, develop, or expand; or to waste, neglect, devalue or convert such marital property, during the period after separation of the parties and before the time of distribution; and
(12) Any other factor which the court finds to be just and proper.
The evidence and findings in the present case show that during the period of separation, for about three years, defendant had the exclusive use of the marital residence, but maintained it and paid taxes and insurance on it. All of these are factors the trial court may consider on remand in making its determination as to whether an equal...
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...contends the court erred both in its classification and valuation of the proceeds received in July 1989. Relying on Becker v. Becker, 88 N.C.App. 606, 364 S.E.2d 175 (1988), defendant contends that since the proceeds were received after the date of separation, they are neither marital, nor ......
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