Haywood v. Haywood

• Decision Date: 21 April 1992
• Docket Number: No. 9114DC188,9114DC188
• Citation: 106 N.C.App. 91,415 S.E.2d 565
• Parties: Egbert L. HAYWOOD, Jr. v. Mary R. HAYWOOD.
• Court: North Carolina Court of Appeals

Page 565

415 S.E.2d 565

106 N.C.App. 91

Egbert L. HAYWOOD, Jr. v. Mary R. HAYWOOD.

No. 9114DC188.

Court of Appeals of North Carolina.

April 21, 1992.

Hunter, Wharton & Lynch by John V. Hunter III, Raleigh, for plaintiff-appellant.

Randall, Jervis, Hill & Anthony by John C. Randall, Durham, for defendant-appellee.

GREENE, Judge.

The plaintiff appeals from an equitable distribution order entered 7 September 1990.

This appeal is the second appeal of this case to this Court. For the procedural history of this case prior to this appeal, see Haywood v. Haywood, 95 N.C.App. 426, 427-28, 382 S.E.2d 798, 799, disc. rev. denied, 325 N.C. 706, 388 S.E.2d 454 (1989). The facts which are relevant for the disposition of this appeal are contained in the context of the discussion of each assignment of error.

The issues are whether (I) the trial court was required to make findings of fact on whether the plaintiff had rebutted the gift presumption regarding (A) the Plymouth Road lot and (B) the 200 12th Street lot; (II) the plaintiff rebutted the defendant's showing that the 100 gold Krugerrands are marital property; (III) the defendant's master's degree is property under the equitable distribution statute; and (IV) the trial court was required to make findings on the plaintiff's evidence concerning his personal debts and medical problems.

I

(A) Plymouth Road House and Lot

The plaintiff argues that although the Plymouth Road house is marital property, because the parties acquired the lot upon which the house sits in exchange for his separate property, the lot remains his separate property.

The evidence at trial tends to show that on 9 April 1975, Arden Properties, Inc., which was controlled by the plaintiff's parents, gave the plaintiff a $20,000 note payable to the plaintiff on demand. The parties were married on 3 March 1978, and in March, 1980, the plaintiff signed over his note to Thunder Oil Corporation, a corporation predominately owned by the plaintiff's parents, in exchange for the lot located on Plymouth Road in Durham, North Carolina which Thunder Oil transferred to the parties as tenants by the entireties. According to our Supreme Court,

[i]f a spouse uses separate funds to acquire property titled by the entireties, the presumption is that a gift of those separate funds was made, and the statute's interspousal gift provision applies. Unless that presumption is rebutted by clear, cogent and convincing evidence, the statute dictates that the gift 'shall be considered separate property only if such an intention is stated in the conveyance.' N.C.G.S. § 50-20(b)(2) (1987 [& Supp.1991] ).

McLean v. McLean, 323 N.C. 543, 552, 374 S.E.2d 376, 382 (1988). Therefore, because the plaintiff used his demand note to acquire the Plymouth Road lot which in the deed was titled by the entireties, the presumption arises that the plaintiff made a gift of his separate property to the marital estate. Consistent with McLean, the trial court found that the deed "to the parties as tenants by the entireties contained no reservation of interest nor was it encumbered by any deed of trust and was a gift to the marriage and is therefore marital property." The plaintiff, however, introduced evidence to rebut the presumption, and the trial court failed to make a finding on that evidence.

As with evidence of N.C.G.S. § 50-20(c) (1987 & Supp.1991) factors, when a party claims property to be separate and supports his or her claim with evidence, the trial court must consider the evidence and make a finding which demonstrates that the trial court has considered the evidence. See Taylor v. Taylor, 92 N.C.App. 413, 419, 374 S.E.2d 644, 648 (1988); cf. Armstrong v. Armstrong, 322 N.C. 396, 404-06, 368 S.E.2d 595, 599-600 (1988) (findings required when party presents evidence of distributional factor). Without a finding of fact showing that the trial court has considered the party's evidence, a reviewing appellate court is unable to determine whether the trial court properly applied the law in determining the property to be marital. Coble v. Coble, 300 N.C. 708, 712, 268 S.E.2d 185, 189 (1980). Here, the plaintiff testified that at the time of the conveyance he did not intend to make a gift of his separate property to the marital estate. This testimony is some competent evidence to rebut the presumed gift of his separate property to the marital estate. Lawrence v. Lawrence, 100 N.C.App. 1, 9, 394 S.E.2d 267, 270 (1990); Draughon v. Draughon, 82 N.C.App. 738, 739-40, 347 S.E.2d 871, 872 (1986), cert. denied, 319 N.C. 103, 353 S.E.2d 107 (1987); see Thompson v. Thompson, 93 N.C.App. 229, 232, 377 S.E.2d 767, 768-69 (1989) (defendant testified that he did not intend to have wife's name placed on deed). Accordingly, because the plaintiff produced some competent evidence to rebut the presumption of gift to the marital estate, the trial court was required to consider the evidence and make a finding as to whether the plaintiff had rebutted the presumption with clear, cogent, and convincing evidence, such determination being within the trial court's discretion. Thompson, 93 N.C.App. at 232, 377 S.E.2d at 768-69; Draughon, 82 N.C.App. at 739-40, 347 S.E.2d at 872. The trial court erred in failing to make the required finding. If on remand the trial court determines that the Plymouth Road lot is marital property, the trial court must nonetheless consider as a distributional factor that the plaintiff contributed his separate property to the marital estate. N.C.G.S. § 50-20(c)(12) (1987 & Supp.1991); Lawrence, 100 N.C.App. at 23, 394 S.E.2d at 279 (Greene, J., concurring) (means for acquiring marital property important in determining equitable distribution).

The plaintiff also argues that the trial court erred in finding that the Plymouth Road house had a value of $225,000 at the date of distribution. We disagree. A trial court's findings of fact are conclusive on appeal when there is any competent evidence in the record to support them. Nix v. Nix, 80 N.C.App. 110, 112, 341 S.E.2d 116, 118 (1986). There is some competent evidence in the record to support the trial court's finding that the marital home located on Plymouth Road had a value of $225,000 at the date of distribution. The plaintiff does not argue that the trial court distributed the marital home on the basis of its value at the date of distribution. In fact, the trial court valued the property at the date of separation at $106,578.63 and distributed that amount as marital property. N.C.G.S. § 50-21(b) (1987 & Supp.1991) (trial court must value marital property as of date of separation); Mishler v. Mishler, 90 N.C.App. 72, 77, 367 S.E.2d 385, 388, disc. rev. denied, 323 N.C. 174, 373 S.E.2d 111 (1988) (trial court must distribute date of separation value of marital property). The trial court must nonetheless consider evidence of the value of the marital property at the date of distribution because the post-separation appreciation in the value of marital property is a distributional factor under N.C.G.S. § 50-20(c)(11a) or (12) (1987 & Supp.1991). Mishler, 90 N.C.App. at 77, 367 S.E.2d at 388; Truesdale v. Truesdale, 89 N.C.App. 445, 448, 366 S.E.2d 512, 514 (1988). The plaintiff does not argue that the trial court failed to consider the post-separation appreciation as a distributional factor. The plaintiff argues, however, and we agree that on remand the trial court must consider the defendant's post-separation mortgage payments on the Plymouth Road house as a distributional factor under N.C.G.S. § 50-20(c)(11a) or (12) as opposed to giving the defendant a credit for those payments. Fox v. Fox, 103 N.C.App. 13, 20-21, 404 S.E.2d 354, 358 (1991); Miller v. Miller, 97 N.C.App. 77, 80-81, 387 S.E.2d 181, 184 (1990).

(B) 200 12th Street House and Lot

The plaintiff argues that the trial court erroneously classified the house built on the 200 12th Street lot located in Butner, North Carolina as marital property because the house was built before the parties' marriage. We disagree. Contrary to the plaintiff's testimony, the defendant testified and the trial court found that this house was built during the parties' marriage. We agree with the plaintiff, however, that the 200 12th Street lot has not been properly classified as marital property.

It is undisputed that the plaintiff used separate property to acquire the 200 12th Street lot which was titled by the entireties. Therefore, the presumption arises that the plaintiff made a gift of his separate property to the marital estate. McLean, 323 N.C. at 552, 374 S.E.2d at 382. The plaintiff testified, however, that he did not intend to make a gift of his separate property to the marital estate. As stated with regard to the Plymouth Road lot, because the plaintiff produced some competent evidence to rebut the presumption of gift to the marital estate, the trial court was required to consider the evidence and make a finding as to whether the plaintiff had rebutted the presumption with clear, cogent, and convincing evidence. The trial court erred in failing to make the required finding. If on remand the trial court determines that the 200 12th Street lot is marital property, the trial court must consider as a distributional factor that the plaintiff contributed his separate property to the marital estate. N.C.G.S. § 50-20(c)(12); Lawrence, 100 N.C.App. at 23, 394 S.E.2d at 279 (Greene, J., concurring).

II 100 Gold Krugerrands

The plaintiff argues that the trial court erred in classifying the 100 gold Krugerrands as marital property. We agree.

The trial court must identify and classify "property as marital or separate 'depending upon the proof presented to the trial court of the nature' of the assets." Atkins v. Atkins, 102 N.C.App. 199, 206, 401 S.E.2d 784, 787 (1991) (citation omitted). The party seeking to have property classified as marital or separate bears the burden of showing by a preponderance of the evidence that the property is...