Hinton v. Hinton

• Decision Date: 16 October 1984
• Docket Number: No. 8310DC1222,8310DC1222
• Citation: 321 S.E.2d 161,70 N.C.App. 665
• Court: North Carolina Court of Appeals
• Parties: Johnnie HINTON, Jr. v. Margie C. HINTON.

Page 161

321 S.E.2d 161

70 N.C.App. 665

Johnnie HINTON, Jr. v. Margie C. HINTON.

No. 8310DC1222.

Court of Appeals of North Carolina.

Oct. 16, 1984.

DeMent, Askew & Gaskins by Johnny S. Gaskins, Raleigh, for plaintiff-appellant.

Edelstein, Payne & Jordan by Thomas W. Jordan, Jr., Raleigh, for defendant-appellee.

BRASWELL, Judge.

When plaintiff-husband filed an action for divorce based on one year's separation, defendant-wife filed a counterclaim asking for an equitable distribution of the marital property pursuant to G.S. 50-20. In his reply to the counterclaim the husband joined in the wife's prayer for relief of equitable distribution. The divorce action was filed 2 November 1982. An absolute divorce was granted on 26 January 1983. The judgment for equitable distribution was filed 14 September 1983.

In the separate hearing on the matter of equitable distribution of the marital property the trial court admitted evidence, over the husband's objection, showing that the husband had physically abused the wife during the course of their marriage. The court, relying in part on the evidence of husband's abuse of wife, concluded that an equal division of the marital property would not be equitable and awarded defendant-wife a greater share of the property. From the judgment entered, the husband appealed.

The primary issue presented by this appeal is whether marital misconduct, or fault, is a proper factor to be considered in determining what constitutes an equitable distribution of marital property. When we refer to fault, or marital misconduct, we mean conduct that undermines the marital relationship, such as cruelty, abandonment, adultery, or indignities. We believe fault is not a relevant consideration in distributing marital property.

G.S. 50-20(c) provides that a court in determining an equitable distribution of marital property must consider the eleven specific factors enumerated therein. In addition, the court is directed to consider as a twelfth factor "[a]ny other factor which the court finds to be just and proper." G.S. 50-20(c)(12). Fault is neither expressly included nor excluded from the list of appropriate factors. The statute leaves unanswered the question whether fault may be considered under the twelfth factor, which is commonly referred to as the catch-all provision.

There is little uniformity among states with equitable distribution statutes as to whether fault should be considered in distributing marital property. A number of states by statute exclude marital misconduct or fault as a consideration in equitable distribution proceedings, see, e.g., Del.Code Ann. tit. 13, Sec. 1513(a) (1981); Ill.Ann.Stat. Ch. 40, Sec. 503(d) (Smith-Hurd 1984); Minn.Stat.Ann. Sec. 518.58 (West 1984), while in other states, courts are required to consider fault in making an equitable distribution. See, e.g., Conn.Gen.Stat.Ann. Sec. 46b-81(c) (West 1984); Mass.Gen.Laws Ann. Ch. 208, Sec. 34 (West 1984); Mo.Ann.Stat. Sec. 452.330.1(4) (Vernon 1984). In at least two states, consideration of fault is discretionary with the trial courts. See Ala.Code Sec. 30-2-52 (1983); Vt.Stat.Ann. tit. 15, Sec. 751 (Equity 1984).

Even in those states which have an equitable distribution statute containing a catch-all provision similar or analogous to the one contained in N.C.G.S. 50-20(c)(12), their courts have been unable to agree on this issue. See Blickstein v. Blickstein, 99 A.D.2d 287, 472 N.Y.S.2d 110 (1984); In re Marriage of Williams, 199 N.W.2d 339 (Iowa 1972); Chalmers v. Chalmers, 65 N.J. 186, 320 A.2d 478 (1974) (fault not relevant consideration). But see LaRue v. LaRue, 216 Kan. 242, 531 P.2d 84 (1975); Hultberg v. Hultberg, 259 N.W.2d 41 (N.D.1977) (fault should be considered). As an illustration, we refer to Blickstein, supra, where the issue before the court was whether marital fault was a relevant consideration under the catch-all provision of New York's equitable distribution statute, N.Y. Domestic Relations Law Sec. 236, part B, subd. 5, par. d, cl. , which is remarkably similar to the catch-all provision in our statute. It provides that in addition to the nine listed statutory factors which the New York court must consider the court may consider "any other factor which the court shall expressly find to be just and proper." The court concluded that as a general rule, the marital fault of a party is not a relevant consideration in determining an equitable distribution, reasoning as follows:

It has been repeatedly emphasized that the marriage relationship is to be viewed as, among other things, an economic partnership and that upon dissolution the accumulated property should be distributed on the basis of the economic needs and circumstances of the case and of the parties .... It would be, in our view inconsistent with this purpose to hold that marital fault should be considered in property distribution. Indeed, it would introduce considerations that are irrelevant to the basic assumptions underlying the equitable distribution law, i.e., that each partner has made a contribution to the marital partnership and that upon its dissolution each is entitled to his or her fair share of the marital estate .... Moreover, fault is very difficult to evaluate in the context of a marriage and may, in the last analysis, be traceable to the conduct of both parties. (Citations omitted).

Id. 99 A.D.2d at 291-92, 472 N.Y.S.2d at 113.

We have carefully considered the arguments on both sides of this issue and recognize that strong arguments can be made both for and against the consideration of fault in equitable distribution proceedings. However, we are persuaded that the position most consistent with the policy and purpose of North Carolina's equitable distribution statutes is the position taken by the New York court in Blickstein--that fault is not a relevant or appropriate consideration in determining an equitable distribution of marital property.

Our equitable distribution statute, G.S. 50-20, was enacted in recognition of marriage as a partnership, economic and otherwise, to which both parties contribute either directly or indirectly. By enacting G.S. 50-20, our Legislature granted courts the power to consider factors other than legal title in distributing the marital assets upon the dissolution of the marriage thereby permitting courts to make an equitable distribution which effects a return to each party of that which he or she contributed to the marriage. As we interpret it, the policy behind G.S. 50-20 is basically one of repayment of contribution. We believe it would be inconsistent with this policy to hold that courts may consider fault in making such distributions.

In Chalmers v. Chalmers, 65 N.J. 186, 194, 320 A.2d 478, 483 (1974), the Supreme Court of New Jersey reached the same conclusion in interpreting its property distribution statute based on the following reasoning:

[T]he statutory provision for equitable distribution of property is merely the recognition that each spouse contributes something to the establishment of the marital estate even though one or the other may actually acquire the property. Therefore, when the parties become divorced, each spouse should receive his or her fair share of what has been accumulated during the marriage. The concept of fault is not relevant to such distribution since all that is being effected is the allocation to each party of what really belongs to him or her.

A second reason given by the court in Chalmers in support of its holding that fault should be excluded as a consideration in equitable distribution proceedings was that marriage is such an intricate relationship that it is often very difficult, if not impossible, to determine who is really at fault in the breakup of a marriage. Id. at 193, 320 A.2d at 482. We agree. We further believe that it was not the intent of our Legislature by its inclusion of the catch-all provision, G.S. 50-20(c)(12), to give courts the inherently arbitrary power to place a monetary value on the misconduct of a spouse in dividing property. Placing such a value on fault is what must necessarily occur if fault is to be considered in determining an equitable division of property. In our opinion the only justification for allowing courts to consider fault in dividing marital property is to permit them to use their power to punish the "guilty" spouse. We cannot believe this is what our Legislature intended. The statute must not be considered a penalty statute. As said in Note, The Discretionary Factor in the Equitable Distribution Act, 60 N.C.L.Rev. 1399, 1405 (1982), " 'fault may be merely the manifestation of a sick marriage.' (Citation omitted)."

One final reason for excluding fault as a consideration in equitable distribution proceedings is the fact that the Legislature has abolished fault-based divorces and established the "no fault" absolute divorce, G.S. 50-6, based on one year's separation. More importantly, the Legislature has demonstrated through G.S. 50-16.2 and G.S. 50-16.5(b) that the appropriate forum for the consideration of fault in divorce proceedings is in the determination and award of alimony. See Williams v. Williams, 299 N.C. 174, 261 S.E.2d 849 (1980). G.S. 50-16.2 requires that the dependent spouse first establish a fault ground in order to be entitled to an award of alimony. Furthermore, according to G.S. 50-16.5(b), the fault of the dependent spouse may be used in determining the actual amount of alimony given to the dependent spouse. It is clear that the Legislature intended fault to be a consideration in awarding alimony. No such intent is evident from G.S. 50-20 nor is fault appropriate in determining what is...