Cushman v. Cushman
| Decision Date | 05 January 2016 |
| Docket Number | No. COA15–233.,COA15–233. |
| Court | North Carolina Court of Appeals |
| Parties | Sheila A. CUSHMAN, Plaintiff, v. Larry J. CUSHMAN, Defendant. |
J. Randal Hunter, New Bern, for plaintiff-appellee.
White & Allen, P.A., by David J. Fillippeli, Jr., Kinston, and Ashley F. Stucker, for defendant-appellant.
Larry Cushman (defendant) appeals from an order for equitable distribution of the marital and divisible property acquired by defendant and Sheila Cushman (plaintiff) during their marriage. On appeal, defendant argues that the trial court erred by denying his pretrial motion for partial summary judgment, neglecting to consider certain distributional factors, and failing to credit him for post-separation payments. We conclude that the trial court's denial of defendant's pretrial motion for partial summary judgment is not subject to appellate review following a hearing on the merits, and that the trial court did not err in its equitable distribution order.
The parties were married on 14 February 1970, separated on 31 May 2010, and divorced on 24 June 2013. One child was born of the marriage, a daughter who was thirty-three years old at the time of the parties' equitable distribution hearing. On 21 April 2012, plaintiff filed a complaint for post-separation support, alimony, and equitable distribution of the marital estate. On 6 August 2012 defendant filed an answer and a motion for sanctions against plaintiff and the attorney who represented plaintiff at that time, pursuant to N.C. Gen.Stat. § 1A–1, Rule 11. Defendant's Rule 11 motion, which was based on plaintiff's inclusion of claims for post- separation support and alimony in her complaint, alleged that prior to the filing of the plaintiff's complaint, the parties had executed a separation agreement releasing all claims other than one for equitable distribution. On 29 August 2012, plaintiff filed a voluntary dismissal of the challenged claims.
At the time that the parties separated, defendant was a retired officer in the United States Marine Corps. After the date of separation, defendant's retirement benefits continued to be deposited into a bank account held jointly by the parties until September 2011, when defendant opened a separate bank account. On 27 September 2012, plaintiff filed a motion seeking an interim distribution of $45,848.00 for her past due share of defendant's military retirement pay. On 2 October 2012, defendant filed a response to plaintiff's motion for interim distribution, in which defendant agreed that plaintiff had an interest in his retirement benefits but argued that the amount of her entitlement should be reduced. Defendant asserted that (1) because the retirement checks were deposited into a joint account for the first nineteen months of the parties' separation, plaintiff had therefore "received and controlled all of defendant's retirement income" during this time, and that (2) plaintiff's entitlement should be reduced because defendant had "used the net income of his retirement benefits" to make payments towards the mortgage owed on the former marital residence and on a loan obligation of the parties' adult daughter. Defendant's motion did not allege that his payments towards the mortgage or loan were made with his separate funds.
On 21 April 2014, defendant filed a motion for partial summary judgment regarding the identification, valuation, and distribution of marital assets. On 20 May 2014, defendant filed a sworn equitable distribution affidavit in which defendant averred in relevant part that:
The parties entered into a Separation Agreement dated 16 May 2011 in which the parties settled all their claims except for their claim for Equitable Distribution. Both parties contemplated that they would equally divide their marital property and debts as provided by North Carolina General Statute 50–20(c).... [I]n order to establish an Equitable Distribution of the marital assets and debts, plaintiff will have to pay a distributive award to defendant of $2,109.05. That being the case, each party will have assets valued at $175,551.76. It is respectfully submitted that the division in this case should be an equal division by using the net value of marital property and net value of divisible property. It is respectfully contended that there are no factors which would support a finding that an equal division is not equitable.
(Emphasis added.) On 19 May 2014, the trial court conducted a hearing on equitable distribution and defendant's summary judgment motion. The trial court entered an order on 9 September 2014 denying defendant's motion for partial summary judgment and distributing the marital estate.1 The trial court found that the parties had "testified and stipulated to the Court that an equal division was equitable," and directed defendant to pay plaintiff a distributive award of $52,595.05. Details of the trial court's order for equitable distribution are discussed below, as relevant to the issues raised on appeal. On 17 September 2014, defendant filed a "motion to vacate order, for [a] new trial pursuant to Rule 59 ... [and] to disqualify Judge Walter Mills [.]" On 9 October 2014, defendant appealed to this Court before obtaining a ruling on his Rule 59 motion.
Pegg v. Jones, 187 N.C.App. 355, 358, 653 S.E.2d 229, 231 (2007) (internal quotation omitted), aff'd per curiam, 362 N.C. 343, 661 S.E.2d 732 (2008). "The trial court's findings need only be supported by substantial evidence to be binding on appeal." Pulliam v. Smith, 348 N.C. 616, 625, 501 S.E.2d 898, 903 (1998) (citations omitted). In addition, "[i]t is well established by this Court that where a trial court's findings of fact are not challenged on appeal, they are deemed to be supported by competent evidence and are binding on appeal." Juhnn v. Juhnn, –––N.C.App. ––––, ––––, 775 S.E.2d 310, 313 (2015) ().
Furthermore, it is axiomatic that:
"The division of property in an equitable distribution is a matter within the sound discretion of the trial court." When reviewing an equitable distribution order, the standard of review "is limited to a determination of whether there was a clear abuse of discretion." "A trial court may be reversed for abuse of discretion only upon a showing that its actions are manifestly unsupported by reason."
Petty v. Petty, 199 N.C.App. 192, 197, 680 S.E.2d 894, 898 (2009) (), disc. review denied and appeal dismissed, 363 N.C. 806, 691 S.E.2d 16 (2010).
Defendant argues first that the trial court erred by denying his "motion for partial summary judgment as to the identification, classification, valuation, and distribution of the marital assets and debts of the parties." After the trial court denied defendant's pretrial motion, the court conducted a trial on the parties' claims for equitable distribution. Our Supreme Court has held:
The denial of a motion for summary judgment is an interlocutory order and is not appealable.... To grant a review of the denial of the summary judgment motion after a final judgment on the merits, however, would mean that a party who prevailed at trial after a complete presentation of evidence by both sides with cross-examination could be deprived of a favorable verdict. This would allow a verdict reached after the presentation of all the evidence to be overcome by a limited forecast of the evidence. In order to avoid such an anomalous result, we hold that the denial of a motion for summary judgment is not reviewable during appeal from a final judgment rendered in a trial on the merits.
Harris v. Walden, 314 N.C. 284, 286, 333 S.E.2d 254, 256 (1985) "Because this case was tried on the merits after denial of defendants' motion for summary judgment, under Harris, defendants' arguments regarding the summary judgment order cannot amount to reversible error, and we, therefore, do not address them." Houston v. Tillman, ––– N.C.App. ––––, ––––, 760 S.E.2d 18, 20–21 (2014).
Defendant contends that the trial court erred by failing to consider the distributional factors set out in N.C. Gen.Stat. § 50–20(c). This statute identifies factors for the trial court to consider in its determination of whether an equal division would be equitable and provides that:
There shall be an equal division by using net value of marital property and net value of divisible property 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 and divisible property equitably. The court shall consider all of the following factors under this subsection[.]
On appeal, defendant specifically maintains that the trial court erred by failing to consider N.C. Gen.Stat. § 50–20(c)(11a), which directs the trial court to consider, if it determines that an equal division would not be equitable, the ...
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