Comstock v. Comstock
| Decision Date | 07 April 2015 |
| Docket Number | No. COA14–731.,COA14–731. |
| Citation | 240 N.C.App. 304,771 S.E.2d 602 |
| Court | North Carolina Court of Appeals |
| Parties | Ashley COMSTOCK, Plaintiff, v. Christopher COMSTOCK, Defendant. |
Krusch & Sellers, P.A., Charlotte, by Rebecca K. Watts, for plaintiff-appellee.
Christopher Comstock, Pro Se.
Defendant appeals pro se from an injunction order freezing his IRA account, an equitable distribution order, and a domestic relations order. After careful consideration, we dismiss, in part; affirm, in part; and reverse, in part.
Ashley Comstock (plaintiff) and Christopher Comstock (defendant) married on 6 May 2002 and separated on 10 June 2010. Plaintiff filed a complaint for divorce from bed and board, child custody, child support, equitable distribution, and attorney's fees on 17 June 2010. The parties divorced on 16 December 2011 by a Judgment of Divorce entered in Mecklenburg County.
On 27 November 2012 and 22 March 2013, the trial court heard evidence and arguments related to the equitable distribution of the parties' marital and divisible property. The property and debt at issue during the hearing and on appeal include: a 2009 Ford Expedition acquired during the marriage, a USAA Investments brokerage account ending in 3120 acquired during the marriage and in defendant's sole name, plaintiff's wedding ring stipulated as marital property, a USAA whole life insurance policy owned by the parties during the marriage, a home equity line of credit (HELOC) on the date of separation on marital property located at 7505 Torphin Court in Charlotte, post-separation payments made by defendant on marital property located at 9630 Blossom Hill Drive in Huntersville, debt acquired through a USAA Mastercard ending in 5755 and a USAA Rewards American Express card both in defendant's individual name, and a U.S. Trust IRA.
After hearing arguments of counsel, hearing testimony of the parties, and reviewing the court file and exhibits presented, the trial court ordered, in pertinent part, that defendant owed plaintiff a distributive award of $137,762.65 and $20,000 in attorney's fees related to plaintiff's claim for child custody.
We first address in unison defendant's issues # 11, # 13, # 14, and a portion of # 15 on appeal. For the following reasons, we dismiss these issues.
Pursuant to North Carolina Appellate Procedure Rule 28(a)(6), "[i]ssues not presented in a party's brief, or in support of which no reason or argument is stated, will be taken as abandoned." N.C.App. R. 28(b)(6). Accordingly, "it is the duty of appellate counsel to provide sufficient legal authority to this Court, and failure to do so will result in dismissal." Moss Creek Homeowners Ass'n, Inc. v. Bissette, 202 N.C.App. 222, 233, 689 S.E.2d 180, 187 (2010). This Court shall also dismiss issues, with few exceptions not applicable to the case at bar, if an appellant fails to preserve an issue for appellate review:
[i]n order to preserve an issue for appellate review, a party must have presented to the trial court a timely request, objection, or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context. It is also necessary for the complaining party to obtain a ruling upon the party's request, objection, or motion.
N.C.App. R. 10(a)(1). Moreover, we generally dismiss "moot" issues. See Kendrick v. Cain, 272 N.C. 719, 722, 159 S.E.2d 33, 35 (1968). An issue is moot "[w]henever, during the course of litigation it develops that the relief sought has been granted or that the questions originally in controversy between the parties are no longer at issue[.]" In re Peoples, 296 N.C. 109, 147, 250 S.E.2d 890, 912 (1978).
In the body of defendant's argument relating to issue # 11 on appeal, he states, "[t]o add insult to injury, the trial court allowed [p]laintiff's trial attorney to essentially interject his belief of how debt should be classified in equitable distribution cases and how the trial court's evidentiary standards should be determined according to misplaced case law [.]" Defendant does not argue that the trial court committed legal error, he does not provide any legal authority in support of his contention, and his purported argument merely articulates his distaste towards the conduct of plaintiff's trial attorney.
In issue # 13, defendant argues that the delayed entry of the equitable distribution order prejudiced him. However, defendant points to absolutely no legal authority in support of his contention. He entirely fails to set forth the relevant standard of review and legal authority for determining whether a trial delay constitutes error. Defendant's argument merely contains his personal opinion about the delayed entry of the equitable distribution order and is devoid of any legal reasoning. Moreover, he fails to make any argument to show how the delay affected the outcomes of the findings or conclusions in the trial court's equitable distribution order. See Wall v. Wall, 140 N.C.App. 303, 314, 536 S.E.2d 647, 654 (2000).
In issue # 14, defendant argues that the trial court erred by denying his presentation of evidence during the injunction and final equitable distribution trial hearing on 7 February 2014. However, defendant failed to preserve this issue for appellate review.
Defendant points us to the following colloquy in support of his position that the trial court erred by denying his presentation of evidence:
It is clear from the colloquy above that defendant never objected to the trial court's ruling that he could not present any further evidence. Moreover, after reviewing the remaining portion of the 7 February 2014 hearing, defendant failed to make any objection related to the presentation of evidence.
The second portion of defendant's issue # 15 relates to the trial court's alleged error by "grossing up" the award to plaintiff of $137,762.65 to $185,979.58 due to the early withdrawal penalty and taxation on the IRA proceeds. Although the equitable distribution order provided for a "grossing up" of the distributive award, the trial court entered an Amended Domestic Relations Order on 12 August 2014, which ordered a transfer of $157,762.65 from defendant's IRA to plaintiff. This amount represents the $137,762.65 distributive award and $20,000 in attorney fees. Thus, the "grossing up" amount was never included in the actual transfer of funds. As such, even if the trial court erred by "grossing up" the distributive award in the equitable distribution order, the issue is moot at this point in light of the superseding Amended Domestic Relations Order.
For the foregoing reasons, we dismiss issues # 11, # 13, # 14, and a portion of # 15 on appeal.
First, defendant argues that the trial court's equitable distribution judgment is fatally defective because many of the findings contain "evidentiary" facts rather than "ultimate" facts. We disagree.
In equitable distribution actions, the trial court must conduct a three-pronged analysis: "(1) identify the property as either marital, divisible, or separate property after conducting appropriate findings of fact; (2) determine the net value of the marital property as of the date of the separation; and (3) equitably distribute the marital and divisible property." Mugno v. Mugno, 205 N.C.App. 273, 277, 695 S.E.2d 495, 498 (2010).
Williamson v. Williamson, 140 N.C.App. 362, 364, 536 S.E.2d 337, 338–39 (2000) (citation and quotation marks omitted).
Here, the "ultimate" facts are facts that address the requirements of the three-pronged analysis: identification of the property as marital, divisible, or separate, a determination of the date of separation value of the property, and a determination of the distribution of the property. The "evidentiary" facts are facts upon which the "ultimate" facts regarding classification, value, and distribution are based.
The equitable distribution order in this case appropriately contains both "ultimate" and "evidentiary" findings necessary for us to review whether the property was equitably divided. Accordingly, defendant's argument fails because the equitable distribution judgment is not "fatally defective." See Quick v. Quick, 305 N.C. 446, 451, 290 S.E.2d 653, 657 (1982) (...
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