Dollar v. Dollar, NO. COA02-1406 (N.C. App. 11/4/2003)
| Decision Date | 04 November 2003 |
| Docket Number | NO. COA02-1406.,COA02-1406. |
| Parties | JEANNINE C. DOLLAR, Plaintiff, v. LELON C. DOLLAR, Defendant. |
| Court | North Carolina Court of Appeals |
Gary S. Lawrence for plaintiff-appellee.
Marshall & Taylor, P.C., by Jeffrey E. Marshall and Travis R. Taylor, for defendant-appellant.
Defendant Lelon C. Dollar appeals from the trial court's equitable distribution judgment and subsequent order modifying the judgment, both of which concluded that an equal division of the parties' marital property was not equitable and awarded a greater than equal share of all marital and divisible property to plaintiff, Jeannine C. Dollar. We affirm.
Plaintiff and defendant were married on 5 April 1975 and separated on 21 September 1998. On 4 December 1998, plaintiff filed an amended complaint seeking post-separation support, alimony, divorce from bed and board, equitable distribution of themarital estate, and attorney's fees. On 28 January 1999, defendant filed his answer to plaintiff's amended complaint and asserted counterclaims for divorce from bed and board and equitable distribution. The parties were granted an absolute divorce on 14 June 2000. Thereafter, the parties' claims for equitable distribution came on for hearing. By order entered 24 October 2001, the trial court awarded plaintiff an unequal share of the parties' marital and divisible property, and ordered defendant to pay a distributive award of $145,813.00 to plaintiff. In November 2001, defendant filed a motion for a new trial and a motion to stay enforcement of the equitable distribution judgment. On 22 January 2002, the trial court granted defendant's motion for stay. On 12 July 2002, following a hearing on defendant's motion for a new trial and plaintiff's cross-motion to dissolve the stay, the trial court entered an order which (1) contained additional findings of fact not included in the equitable distribution judgment; (2) reduced plaintiff's distributive award by $12,287.20, down to $133,525.801, but otherwise provided that the trial court's prior equitable distribution judgment "shall remain in full force and effect;" (3) lifted the stay on enforcement of the equitable distribution judgment; and (4) denied defendant's motion for a new trial. On 8 August 2002, defendant timely filed notice of appealfrom the 24 October 2001 equitable distribution judgment and the 12 July 2002 order.
At the outset, we note that the 24 October 2001 equitable distribution judgment indicates the trial court "received testimony and evidence from both Plaintiff and Defendant" at the equitable distribution hearing. Because defendant has failed to submit the transcript from the equitable distribution hearing or otherwise include the oral testimony in the record on appeal, the findings of fact contained in the equitable distribution judgment are presumed to be supported by competent evidence and are therefore conclusive on appeal. Fellows v. Fellows, 27 N.C. App. 407, 408, 219 S.E.2d 285, 286 (1975); Algary v. McCarley & Co., 74 N.C. App. 125, 126- 27, 327 S.E.2d 296, 297-98 (1985).
The 24 October 2001 equitable distribution judgment contained the following pertinent findings of fact:
3. The marriage of Plaintiff and Defendant was the second marriage for both parties. No children were born of this marriage; however, both Plaintiff and Defendant have children born of their respective first marriages.
. . . .
7. Pursuant to the stipulations of the parties, the division of marital assets contained on Schedule A [of the pre-trial order entered prior to the equitable distribution hearing] resulted in a division whereby the Plaintiff received marital assets totaling $328,752.00 and the Defendant received marital assets totaling $351,046.00.
. . . .
11. Prior to the marriage of the parties, the Plaintiff's father passed away.
12. Attached to the Pre-Trial Order is a schedule of separate property of both Plaintiff and Defendant. Thisschedule is incorporated herein by reference and made a part of this Order.
13. Part of Plaintiff's inheritance from her father was several parcels of real property located in Chatham County and one parcel in Harnett County. . . .
. . . .
15. Part of Plaintiff's inheritance was 68.5 acres located in Harnett County. The Plaintiff instructed her siblings to convey this tract in Harnett County to she and the Defendant, as tenants by the entirety. Plaintiff did so upon reliance on Defendant's promise to have the pharmacy [owned by defendant] and its assets placed in the names of both parties.
. . . .
17. Both parties had the Harnett County property appraised. . . . This Court finds as a fact that the Harnett County property had a value on date of separation and date of distribution of $92,000.00.
18. Prior to the marriage the Defendant was a one-third (1/3) owner of a pharmacy located in Apex, North Carolina. The Defendant also owned some stock in North Carolina Mutual Drug Stores.
19. During the marriage the Defendant purchased the remaining two-thirds (2/3) interest in the pharmacy and continued to purchase North Carolina Mutual Drug Stock.
20. Prior to the date of separation, the Defendant sold the pharmacy to Eckerd's Drug Stores. On the date of separation, the Defendant had received part of the payment from the sale of the pharmacy; however, following the separation the Defendant received a balance of $86,667.00.
21. The Defendant also sold his North Carolina Mutual Drug Stock prior to the date of separation. Prior to separation, the Defendant had received $50,752.00 from the sale of his NC Mutual Drug Stock. Following the date of separation the Defendant received an additional $50,752.00 from the sale of this stock.
. . . .
24. The total value of the proceeds from the sale of the Medical Center Pharmacy and the North Carolina Mutual Drug Stock; including the accounts which existed on thedate of separation and the proceeds received after date of separation total $339,657.00.
25. It was stipulated by the parties and their respective counsel that the proceeds from the sale of the pharmacy and the drug stock would be treated in the same manner in determining the portion of the proceeds that were marital and the portion that was separate property.
26. This Court finds as a fact that two-thirds (2/3) of the Medical Center Pharmacy was marital property and one- third (1/3) of the pharmacy was Defendant's separate property. The Defendant owned a one-third (1/3) interest on the date of separation and after the date of separation purchased the remaining two-thirds (2/3) interest from his two partners.
27. Of the total proceeds from the sale of the pharmacy and North Carolina Mutual Drug Stock, $226,438.00 is marital and $ 113,219.00 is the Defendant's separate property.
28. Subsequent to the marriage of the parties and prior to Plaintiff having the Harnett County property conveyed to Plaintiff and Defendant, the Defendant promised the Plaintiff that he would convey his interest in the Medical Center Pharmacy to the two of them; thereby creating a joint asset. It was on the basis of these representations and assurances by the Defendant that the Plaintiff caused the Harnett County property to be conveyed to her and the Defendant as tenants by the entirety.
29. The Defendant never conveyed his separate interest in the pharmacy to he and the Plaintiff; notwithstanding repeated assurances by the Defendant that he would do such.
30. The Plaintiff relied upon the assurances and representations by the Defendant that he would convey the pharmacy to the two of them, and had the Harnett County property conveyed to the two of them as tenants by the entirety.
31. In addition, to the Defendant's separate property as set forth on the Exhibit attached to the Pre-Trial Order, the Defendant has as his separate property, a one-third (1/3) interest in the proceeds from the sale of the Medical Center Pharmacy and the North Carolina Mutual Drug Stock; totally [sic] $113,219.00. The total of Defendant's separate property is $152,219.00.
32. In addition to her separate property as listed on the schedule attached to the Final Pre-Trial Order, the Plaintiff has as her separate property the following assets: [a certificate of deposit in the amount of $30,718.002 and a checking account containing $9,016.00].
33. The Harnett County property was inherited by the Plaintiff; however, she had it conveyed to the parties as tenants by the entirety in reliance upon Defendant's assurances that he would make his separate ownership interest in the pharmacy jointly owned property. The Court finds this to be a distributional factor justifying an unequal division in Plaintiff's favor.
. . . .
35. On the date of separation, the Court finds that the parties owned, in addition to property listed above, the following items of marital property with the corresponding values: [a] 1987 Lincoln [with a value of] $5,000.00 [and a] 1994 Buick [with a value of] $11,000.00[.]. . .
36. Since the separation of the parties, Defendant has possession and use of most of the parties['] marital assets. Defendant resided in the marital home until it was sold. This home was paid for and therefore Defendant had no monthly mortgage or rent payments. Defendant also had use of the marital funds. He purchased a new automobile; paying cash with marital funds. The Court finds this to be a distributional factor justifying an unequal division in favor of Plaintiff.
37. Defendant has paid taxes on the proceeds from the sale of the pharmacy and the Mutual drug stock. These taxes were as follows: . . . [resulting in a] [t]otal tax liability [of] $76,440.00[.]
38. Of the tax liability of $76,440.00, $51,627.00 is a marital liability and $25,813.00...
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