Embler v. Embler, COA02-279.

• Citation: 582 S.E.2d 628,159 NC App. 186
• Decision Date: 15 July 2003
• Docket Number: No. COA02-279.,COA02-279.
• Court: Court of Appeal of North Carolina (US)
• Parties: Jo Ann Upchurch EMBLER, Plaintiff, v. Henry James EMBLER, Defendant.

582 S.E.2d 628

159 NC App. 186

Jo Ann Upchurch EMBLER, Plaintiff, v. Henry James EMBLER, Defendant.

No. COA02-279.

Court of Appeals of North Carolina.

July 15, 2003.

Anderson Korzen & Associates, P.C. by John J. Korzen, Kernersville, for defendant-appellant.

Rudolf Maher Widenhouse & Fialko by M. Gordon Widenhouse, Jr., Raleigh, for plaintiff-appellee.

GEER, Judge.

Defendant, Henry Embler, appeals from an equitable distribution judgment, arguing that the trial court erred in: (1) ordering defendant to pay plaintiff, Jo Ann Embler, a distributive award of $24,876.00 without making any finding as to the existence of liquid assets sufficient to pay the award; (2) concluding that an unequal division of the marital property was equitable and awarding sixty percent of it to plaintiff; and (3) classifying defendant's pension plan solely as marital property. We reverse in part and remand for further findings of fact as to the distributional factors that the court considered in making the equitable distribution award and the source of funds from which defendant is to pay any distributive award.

The detailed facts and procedural history of the case are found in Embler v. Embler, 143 N.C.App. 162, 545 S.E.2d 259 (2001) (dismissing appeal as interlocutory). The parties were married in 1976, had one child in 1986, separated in 1993, and divorced in 1996. Plaintiff is a teacher with a master's degree in education and earns approximately $35,000.00 per year. Defendant is in management with BellSouth Telecommunications and earns approximately $69,000.00 annually. In considering the issue of equitable distribution, the trial court awarded sixty percent of the marital estate to plaintiff and required defendant to pay a distributive award of $24,876.00 to plaintiff within sixty days. Defendant claims that he has no liquid assets from which to pay this award and would incur penalties if he withdrew the necessary sums from his retirement account.

When reviewing a trial court's equitable distribution award, the appellate court's duty is to determine whether the trial court abused its discretion. White v. White, 312 N.C. 770, 324 S.E.2d 829 (1985). "A ruling committed to a trial court's discretion is to be accorded great deference and will be upset only upon a showing that it was so arbitrary that it could not have been the result of a reasoned decision." Id. at 777, 324 S.E.2d at 833. The trial court must, however, make specific findings of fact regarding each factor specified in N.C. Gen.Stat. § 50-20(c) (2001) on which the parties offered evidence. Rosario v. Rosario, 139 N.C.App. 258, 260-61, 533 S.E.2d 274, 275-76 (2000). We believe that the trial court's findings of fact in this case were insufficient.

I

Defendant first argues that the trial court erred in ordering him to pay plaintiff a distributive award of $24,876.00 without making any finding whether he had sufficient liquid assets to pay the award. We agree.

This case is analogous to Shaw v. Shaw, 117 N.C.App. 552, 451 S.E.2d 648 (1995). In Shaw, the trial court had ordered the defendant to pay the plaintiff an $8,360.72 distributive award, but did not specify a source of funds for that payment. The evidence suggested that the only asset from which defendant could pay the distributive award was his thrift plan; yet the evidence also established that any withdrawal from that plan would result in harsh tax consequences. This Court remanded the case to the trial court for a determination whether the defendant had assets, other than the thrift plan, from which he could make the distributive award payment. Id. at 555, 451 S.E.2d at 650. If not, then the trial court was required to either "(1) provide for some other means by which the defendant [could] pay $8,360.72 to the plaintiff; or (2) determine the consequences of withdrawing that amount from the thrift plan and adjust the award from defendant to plaintiff to offset the consequences." Id. See also N.C. Gen.Stat. § 50-20(c)(9), (11) (in determining whether an equal division of property is equitable, the court must consider the liquid or nonliquid character of all marital property and the tax consequences to each party).

While Mr. Embler's assets are greater than the defendant's in Shaw, the evidence suggests that those assets are still non-liquid in nature. Although defendant may in fact be able to pay the distributive award, defendant's evidence is sufficient to raise the question of where defendant will obtain the funds to fulfill this obligation. As in Shaw, the court below ordered defendant to pay the distributive award without pointing to a source of funds from which he could do so even though defendant had no obvious liquid assets. If defendant is ordered to pay the distributive award from a non-liquid asset or by obtaining a loan, the equitable distribution award must be recalculated to take into account any adverse financial ramifications such as adverse tax consequences. Shaw requires that we remand for further findings as to whether defendant has assets, other than non-liquid assets, from which he can make the distributive award payment. If defendant has insufficient liquid assets, then the trial court must (1) determine the means by which defendant is to pay the amount; and (2) adjust the award from defendant to plaintiff to offset any adverse financial consequences of using the non-liquid assets.

II

Defendant next contends that the trial court erred in concluding that an unequal division of the marital property was equitable and awarding sixty percent of it to plaintiff. We remand for further findings on the trial court's consideration of the distributional factors.

In order for this Court to conduct proper appellate review of an equitable distribution order, the trial court's findings must be specific enough that the appellate court can determine from reviewing the record whether the judgment represents a correct application of the law. Coble v. Coble, 300 N.C. 708, 714, 268 S.E.2d 185, 190 (1980). The trial court must make "specific findings as to the ultimate facts (rather than the evidentiary facts) found by the trial court to support its conclusion regarding equitable distribution...." Rosario, 139 N.C.App. at 260, 533 S.E.2d at 275 (emphasis original). Although the trial court need not find all possible facts from the evidence before it, "it [is] required to make findings sufficient to address the statutory factors and support the division ordered." Armstrong v. Armstrong, 322 N.C. 396, 405, 368 S.E.2d 595, 600 (1988).

More specifically, this Court has held:

[W]hen a party presents evidence which would allow the trial court to determine that an equal distribution of the marital assets would be inequitable, the trial court must then consider all of the distributional factors listed in G.S. 50-20(c), Smith v. Smith, 314 N.C. 80, 331 S.E.2d 682 (1985), and must make sufficient findings as to each statutory factor on which evidence was offered.

Locklear v. Locklear, 92 N.C.App. 299, 305-06, 374 S.E.2d 406, 410 (1988). This Court has previously held that a blanket statement that the trial court considered the distributional factors listed in N.C. Gen.Stat. § 50-20(c) is insufficient as a matter of law. Rosario, 139 N.C.App. at 262, 533 S.E.2d at 276.

Here, the trial court stated that it "considered the factors found and noted above in the findings of fact. The Court also considered the other statutory distributional factors." (Emphasis added) In its findings of fact, the trial court recited various contentions of the parties, but found only that (1) the absolute value of defendant's retirement portfolio greatly exceeds plaintiff's; (2) defendant's income is nearly double the plaintiff's; (3) the parties are almost the same age and have several more earning years ahead of them; (4) defendant has more retirement value accruing after the date of separation than his wife; (5) defendant paid certain marital debts after marriage; and (6) it is...