Belk v. Belk

• Decision Date: 05 June 2012
• Docket Number: No. COA11–604.,COA11–604.
• Citation: 728 S.E.2d 356
• Court: North Carolina Court of Appeals
• Parties: Suzanne St. Clair Bowron BELK, Minor Child, by and through her Guardian Ad Litem, Suzanne B. BELK, Petitioner, v. William I. BELK, Respondent.

728 S.E.2d 356

Suzanne St. Clair Bowron BELK, Minor Child, by and through her Guardian Ad Litem, Suzanne B. BELK, Petitioner,

v.William I. BELK, Respondent.

No. COA11–604.

Court of Appeals of North Carolina.

June 5, 2012.

Appeal by respondent from judgment entered 26 August 2010 and order entered 28 September 2010 by Judge W. Erwin Spainhour in Mecklenburg County Superior Court. Heard in the Court of Appeals 14 March 2012.

Horack, Talley, Pharr & Lowndes, PA, Charlotte, by Elizabeth T. Hodges, Elizabeth J. James and Kary C. Watson, for petitioner appellee.

Nexsen Pruet, PLLC, Raleigh, by Eugene Boyce, for respondent appellant.

McCULLOUGH, Judge.

William I. Belk (“respondent”) appeals from a judgment entered by the trial court removing him as custodian of all accounts created under the North Carolina Uniform Transfers to Minors Act (“UTMA”) for the benefit of his minor daughter, Suzanne St. Clair Bowron Belk (“Suzanne”), and ordering him to reimburse one of such accounts for improper withdrawals, plus interest and attorney's fees. After careful review, we affirm.

I. Factual and Procedural Background

Petitioner Suzanne B. Belk (“petitioner”) and respondent are the biological mother and father of Suzanne, a minor child born on 10 August 1993. Suzanne is the youngest child of petitioner and respondent. Suzanne's two older siblings are now legal adults.

Respondent is a member of the Belk family that established Belk Stores, Inc., the owner of Belk department stores located throughout the southeastern United States. Over a number of years, Suzanne's paternal grandparents, Mr. and Mrs. Irwin Belk, made gifts of shares of stock in Belk Stores, Inc. to Suzanne and her siblings. These shares of stock were sold in 1996, and respondent received the proceeds of the sale of Suzanne's stock as her custodian.

Respondent established multiple custodial accounts for Suzanne pursuant to UTMA, and respondent deposited the proceeds from the sale of Suzanne's stock into these accounts. The financial institutions where such accounts were established included First Union Brokerage Services, Inc. (the “First Union account”), Citi Group—Smith Barney (the “Smith Barney account”), and The Financial Network (the “Financial Network account”). Each account was established for the benefit of Suzanne, and respondent served as custodian of each such account.

On 31 July 2001, petitioner and respondent separated, and Suzanne has resided with petitioner since the separation. Petitioner, as guardian ad litem for Suzanne, filed the present action against respondent on 11 September 2009, seeking to obtain an accounting from respondent regarding his management of Suzanne's custodial funds and, to the extent the court found that respondent acted in violation of his duties as custodian under UTMA, to recover misappropriated funds from respondent, along with interest and attorney's fees. The present action was initially commenced as a special proceeding before the Clerk of Superior Court for Mecklenburg County. The clerk of superior court recused herself from presiding over this special proceeding, and the proceeding was transferred to the Superior Court Division for trial. An evidentiary hearing was held on 8 and 9 July 2010, and on 13, 17, and 18 August 2010.

On 26 August 2010, the trial court entered judgment finding multiple withdrawals from the Smith Barney account were inappropriate, were not for Suzanne's benefit, and were not repaid by respondent. The trial court found that petitioner, on behalf of Suzanne, was entitled to reimbursement of the funds taken and misused by respondent from the custodial funds, totaling $71,869.80. The trial court further found that respondent must pay interest on the amount of lost income sustained as a result of the misuse of the custodial funds at the statutory interest rate of eight percent, totaling $58,944.24. In addition, the trial court found petitioner's attorney's fees were necessitated due to the vexatious refusal of respondent to provide an accounting to petitioner or to Suzanne as to the use of the custodial funds and that respondent should be required to reimburse petitioner for her reasonable and necessary attorney's fees, totaling $138,531.85. Based on those findings, the trial court concluded respondent should be removed as custodian for all of Suzanne's custodial accounts and ordered respondent to pay the above amounts for reimbursement, interest, and attorney's fees.

On 3 September 2010, petitioner filed a motion with the trial court pursuant to Rules 52(b) and 60(a) of the North Carolina Rules of Civil Procedure. On 28 September 2010, the trial court issued an order amending certain findings of fact and decretal portions of its 26 August 2010 judgment. In its amended findings of fact, the trial court corrected the sums owed by respondent, finding and concluding that respondent should pay $73,269.80 in reimbursement for inappropriate withdrawals from the Smith Barney account, $58,944.24 in interest on the sum owed, and $138,043.55 in attorney's fees. From the trial court's judgment and order amending that judgment, respondent timely appealed to this Court.

II. Standard of Review

The applicable standard of review on appeal where, as here, the trial court sits without a jury, 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.” ’ ” In re Estate of Archibald, 183 N.C.App. 274, 276, 644 S.E.2d 264, 266 (2007) (quoting Cartin v. Harrison, 151 N.C.App. 697, 699, 567 S.E.2d 174, 176 (2002) (quoting Sessler v. Marsh, 144 N.C.App. 623, 628, 551 S.E.2d 160, 163 (2001))). “Findings of fact by the trial court in a non-jury trial have the force and effect of a jury verdict and are conclusive on appeal if there is evidence to support those findings. A trial court's conclusions of law, however, are reviewable de novo.” Shear v. Stevens Building Co., 107 N.C.App. 154, 160, 418 S.E.2d 841, 845 (1992) (citation omitted).

III. Res Judicata and Collateral Estoppel

Respondent first presents the argument on appeal that the trial court erred in failing to dismiss the present action based on the doctrines of res judicata and collateral estoppel. However, respondent makes no clear argument in this section, other than stating that prior lawsuits between petitioner and respondent determined the issues presented here regarding Suzanne's UTMA accounts. Respondent does not include any standard of review that would be applicable to appellate review of the trial court's denial of his motion. Respondent only cites one case in this entire ‘argument,’ which citation has nothing to do with the merits of these defenses.

The function of all briefs required or permitted by [our appellate] rules is to define clearly the issues presented to the reviewing court and to present the arguments and authorities upon which the parties rely in support of their respective positions thereon. The scope of review on appeal is limited to issues so presented in the several briefs. Issues not presented and discussed in a party's brief are deemed abandoned.

N.C.R.App. P. 28(a) (2012). Moreover, an appellant's brief must contain:

An argument, to contain the contentions of the appellant with respect to each issue presented. Issues not presented in a party's brief, or in support of which no reason or argument is stated, will be taken as abandoned.

The argument shall contain a concise statement of the applicable standard(s) of review for each issue, which shall appear either at the beginning of the discussion of each issue or under a separate heading placed before the beginning of the discussion of all the issues.

The body of the argument and the statement of applicable standard(s) of review shall contain citations of the authorities upon which the appellant relies.

N.C. R.App. P. 28(b)(6) (2012) (emphasis added).

Respondent's only citation as to this issue states that “[i]n a trial without a jury, it is the duty of the trial judge to resolve all issues raised by the pleadings and the evidence by making findings of fact and drawing therefrom conclusions of law upon which to base a final order or judgment.” Small v. Small, 107 N.C.App. 474, 477, 420 S.E.2d 678, 681 (1992). We acknowledge this duty extends to all affirmative defenses raised by respondent in his answer. Pittman v. Barker, 117 N.C.App. 580, 591–92, 452 S.E.2d 326, 333 (1995).

Here, as respondent points out, the trial court failed to enter any written findings of fact regarding either of respondent's affirmative defenses. Ordinarily, when all such issues are not so resolved by the trial court, this Court must vacate the order or judgment and remand to the trial court for completion. Small, 107 N.C.App. at 477, 420 S.E.2d at 681. Nonetheless, in the present case, we decline to both vacate the trial court's judgment and remand the cause back to the trial court for entry of findings of fact as to respondent's affirmative defenses, as respondent has cited no authority nor presented a clear argument in support of the merits of his appeal on this issue. We also note respondent presented no argument whatsoever regarding his affirmative defense of the statute of limitations. “ ‘To obtain appellate review, a question raised by an [issue on appeal] must be presented and argued in the brief.’ ” N.C. State Bar v. Gilbert, 189 N.C.App. 320, 328, 663 S.E.2d 1, 6 (2008) (quoting State v. Barfield, 127 N.C.App. 399, 401, 489 S.E.2d 905, 907 (1997)). Because respondent has failed completely in his duty to present us with an issue to review, we deem respondent's argument as to his affirmative defenses to be abandoned. Id.

IV. Interest Award

In his second argument on appeal, respondent argues the trial court erred in ordering him to pay interest on the reimbursement sum, accruing from the dates of the wrongful disbursements. Citing N.C. Gen.Stat. § 24–5(b) (2011), respondent contends ...