Fleming v. Fleming
| Decision Date | 07 October 2014 |
| Docket Number | No. COA13–1347.,COA13–1347. |
| Court | North Carolina Court of Appeals |
| Parties | Kimberly Ann FLEMING, Plaintiff, v. Douglas Wade FLEMING, Defendant. |
Church Watson Law, PLLC, by Seth A. Glazer and Kary C. Watson, for plaintiff-appellant.
Arthurs & Foltz, LLP, by Douglas P. Arthurs and Joy M. Chappell, for defendant-appellee.
Kimberly Ann Fleming (“Plaintiff”) appeals from the trial court's child custody, child support, equitable distribution, and alimony order. On appeal, she argues that the trial court erred by (1) failing to comply with the requirements of N.C. Gen.Stat. § 50–20 ; (2) failing to appropriately calculate the income of Douglas Wade Fleming (“Defendant”) for purposes of determining his child support obligation; and (3) failing to award alimony to her despite finding that she was a dependent spouse, Defendant was a supporting spouse, and Defendant had engaged in marital misconduct. After careful review, we vacate and remand for further proceedings.
Factual Background
The parties were married on 22 June 2001 and separated on 12 September 2007, shortly after Plaintiff learned that Defendant was involved in an extramarital affair. Plaintiff and Defendant subsequently divorced. The parties have two minor children together, twin daughters born in 2001.
On 24 September 2007, Plaintiff filed an action against Defendant for child custody, child support, post-separation support, alimony, and equitable distribution. Defendant filed an answer and counterclaims for child custody and equitable distribution on 29 November 2007. On 13 December 2007, the trial court entered an order requiring Defendant to continue to pay the first and second mortgages on the marital home, health insurance for the parties, car expenses, taxes, and for Plaintiff's cellular phone service “in lieu of post-separation support” to her. A temporary custody order awarding primary physical custody of the children to Plaintiff was entered on 25 July 2008.
Defendant owns North Carolina Mohawk Tire Company d/b/a Mr. Nobody (“Mr.Nobody”), a tire and automotive business. Prior to the parties' marriage, Defendant acquired an interest in Mr. Nobody by purchasing 5 of the outstanding 30 shares of stock in the business. During the course of the parties' marriage, Defendant acquired the remaining 25 shares of Mr. Nobody using marital funds.
Mr. Nobody has two locations, and during their marriage, the parties purchased the two parcels of land where the business operates. Mr. Nobody pays rent to the parties for the use of both properties. Defendant is employed by Mr. Nobody and received monthly income from the business throughout the course of the marriage. During the marriage, Mr. Nobody paid for numerous personal expenses of the parties, including the cost of their vehicles and the insurance and taxes on those vehicles, monthly gas expenses, cell phones for the family, and for insurance and taxes relating to both Mr. Nobody locations.
The parties' respective claims for child custody and support, equitable distribution, and alimony were heard in Gaston County District Court in February 2012. On 4 June 2013, the trial court entered an order (1) giving the parties joint legal custody of the minor children and Plaintiff primary physical custody; (2) requiring Defendant to make monthly child support payments to Plaintiff; (3) ordering Defendant to make a distributive cash award to Plaintiff; and (4) denying Plaintiff's request for alimony. Plaintiff gave timely notice of appeal to this Court.
Analysis
I. Equitable Distribution
Plaintiff's first argument on appeal is that the trial court erred in the equitable distribution portion of its order by failing to comply with the statutory requirements set forth in N.C. Gen.Stat. § 50–20. Specifically, Plaintiff contends the trial court erred by failing to make findings regarding the classification or value of numerous items of property before distributing them in its order, including the residence at 5034 Stone Ridge Drive; the Fleetwood Southwind motorhome; the parties' household goods, furniture, furnishings, and personal property; the Harley Davidson Sportster; three four-wheelers; a dirt bike; and the parties' bank accounts, retirement accounts, investment accounts, and credit card debt. We agree.
Our review of an equitable distribution order is limited to determining whether the trial court abused its discretion in distributing the parties' marital property. Accordingly, the findings of fact are conclusive if they are supported by any competent evidence from the record.
However, even applying this generous standard of review, there are still requirements with which trial courts must comply. Under N.C.G.S. § 50–20(c), equitable distribution is a three-step process; the trial court must (1) determine what is marital and divisible property; (2) find the net value of the property; and (3) make an equitable distribution of the property.
Robinson v. Robinson,210 N.C.App. 319, 322, 707 S.E.2d 785, 789 (2011) (citations, quotation marks, and brackets omitted). Thus, in order to enter a proper equitable distribution judgment, the trial court must first “specifically and particularly classify and value all assets and debts maintained by the parties at the date of separation” and in doing so, “be specific and detailed enough to enable a reviewing court to determine what was done and its correctness.” Id.at 323, 707 S.E.2d at 789 (citations, quotation marks, and emphasis omitted).
Here, the trial court distributed various property to the parties without first classifying or valuing those assets. See Wirth v. Wirth,193 N.C.App. 657, 664, 668 S.E.2d 603, 608–09 (2008) ; Cunningham v. Cunningham,171 N.C.App. 550, 556, 615 S.E.2d 675, 680 (2005) (). By distributing certain items of property without classifying or valuing them, the trial court also disregarded its responsibility to calculate the total net value of the marital estate. See Robinson,210 N.C.App. at 323, 707 S.E.2d at 789–90 ().
With regard to the parties' residence at 5034 Stone Ridge Drive, the trial court ordered that the residence be placed on the market and sold pursuant to the parties' stipulation and that the net proceeds—after the mortgage and equity line were satisfied—be divided equally between the parties. Although this Court has recognized “the trial court's power to order the sale of marital assets as part of an equitable distribution,” it has also recognized that the trial court must first value the property before distributing it. See Wall v. Wall,140 N.C.App. 303, 307–08, 536 S.E.2d 647, 650 (2000) ().
Because the trial court's equitable distribution order distributes property to the parties without proper findings as to the classification or value of the property, we must vacate the equitable distribution order and remand for a new trial so that the trial court may “hear arguments and receive evidence from both parties ... in order to address the errors discussed above and to properly identify, classify, and value the parties' property as required by statutory law and case law.” Dalgewicz v. Dalgewicz,167 N.C.App. 412, 424, 606 S.E.2d 164, 172 (2004), see also Robinson,210 N.C.App. at 326, 707 S.E.2d at 791.
While Plaintiff also contends that the trial court's distribution of the parties' property was not equitable because the trial court made an unequal distribution in favor of Defendant without considering the statutorily required factors set forth in N.C. Gen.Stat. § 50–20(c), she bases this argument on the unequal distribution of that property which the trial court actually valued. However, because the trial court failed to value much of the parties' property before distributing it, we are unable to determine whether the distribution was, in fact, unequal. See Dalgewicz,167 N.C.App. at 424, 606 S.E.2d at 172 (). Therefore, we vacate the equitable distribution order and remand for a new hearing so that the trial court may hear evidence and enter an order properly classifying, valuing, and distributing the parties' property.1
II. Child Support
Plaintiff's second argument on appeal is that the trial court erred in its calculation of Defendant's income for purposes of determining his child support obligation. The North Carolina Child Support Guidelines (“the Guidelines”) “apply as a rebuttable presumption in all legal proceedings involving the child support obligation of a parent ...” Holland v. Holland,169 N.C.App. 564, 567, 610 S.E.2d 231, 234 (2005) (citation and quotation marks omitted). This Court reviews a trial court's child support order for abuse of discretion. Id.“To support a reversal, an appellant must show that the trial court's actions were manifestly unsupported by reason.” Head v. Mosier,197 N.C.App. 328, 332, 677 S.E.2d 191, 195 (2009) (citation and quotation marks omitted).
Pursuant to the Guidelines, “[c]hild support calculations ... are based on the parents' current incomes at the time the order is entered.” Form AOC–A–162, Rev. 1/11. With regard to a parent's income from self-employment or operation of a...
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