Johnson-white v. White
| Decision Date | 15 February 2011 |
| Docket Number | No. 08 CVD 438,NO. COA10-569,COA10-569,08 CVD 438 |
| Court | North Carolina Court of Appeals |
| Parties | TERRI JOHNSON-WHITE, Plaintiff v. LARRY ALEN WHITE, Defendant |
Appeal by defendant from order entered 24 August 2009 by Judge J. H. Corpening, II, in New Hanover County District Court. Heard in the Court of Appeals 17 November 2010.
Johnson, Lambeth & Brown, by Maynard M. Brown and Carlton S. Prickett, Jr., for plaintiff-appellee.
Lea, Rhine & Rosbrugh, by James W. Lea, III, and Lori W. Rosbrugh, for defendant-appellant.
Larry Alen White ("defendant") received an unequal distribution of property in his favor and appeals portions of the trial court's equitable distribution order. Defendant also appeals the trial court's order awarding alimony to Terri Johnson-White ("plaintiff") and awarding plaintiff's attorney's fees. We affirm.
On 27 December 2002, plaintiff and defendant (collectively, "the parties") were married. There were no children born during the marriage. At the time of the marriage, plaintiff was 42 years old and defendant was 47 years old. Both parties owned property prior to their marriage and acquired property during the marriage. Prior to and during the marriage, defendant owned, operated, and managed A&P Hydraulics, Inc. ("A&P Hydraulics" or "the business"), which fabricated and sold hydraulic power test units for use on the maintenance of aircraft. Prior to the marriage, plaintiff was employed. However, during the marriage, plaintiff pursued an education and was not employed. On 30 August 2007, the parties separated.
On 29 Jaunary 2008, plaintiff filed a complaint in New Hanover County District Court seeking post-separation support ("PSS"), alimony, equitable distribution, and attorney's fees. Defendant filed an answer and counterclaim, seeking an equitable distribution of the parties' marital property with an unequal distribution in his favor. On 2 June 2008, the trial court entered a consent order requiring defendant to pay plaintiff $1,500.00 in monthly PSS, and a $3,000.00 lump sum payment as an interim distribution to be credited toward the amount defendant would subsequently owe plaintiff in the equitable distribution of their property. On 21 November 2008, the trial court granted the parties an absolute divorce.
On 24 August 2009, the trial court entered orders for an equitable distribution of property and alimony. In the trialcourt's unequal distribution of the marital property, defendant received 59% of the marital estate, and plaintiff received 41% after defendant's payment of a distributional payment. For alimony, defendant was ordered to pay plaintiff the sum of $2,500.00 per month for 48 months, beginning 1 July 2009 and ending 1 June 2013. The trial court also awarded plaintiff $3,500.00 for attorney's fees. Defendant appeals.1
Defendant argues that the trial court erred in determining the date of separation value of the marital interest in a parcel of real property. Defendant also argues that the trial court erred in determining the marital interest in an automobile, a boat, and a money market account. We disagree.
"The trial court must classify and identify 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) (quoting Johnson v. Johnson, 317 N.C. 437, 455, 346 S.E.2d 430, 440 n.4 (1986)). The burden of showing the property to be marital is on the party seeking to classify the asset as marital and the burden of showing the property to be separate is on the party seeking to classify the asset as separate. Id.
The party claiming the property to be marital must meet her burden by showing by the preponderance of the evidence that the property: (1) was "acquired by either spouse or both spouses"; and (2) was acquired "during the course of the marriage"; and (3) was acquired "before the date of the separation of the parties"; and (4) is "presently owned." N.C.G.S. § 50-20(b)(1). If this burden is met and a party claims the property to be separate, that party has the burden of showing the property is separate. This burden is met by showing by the preponderance of the evidence that the property was: (1) "acquired by a spouse by bequest, devise, descent, or gift during the course of the marriage" (third-party gift provision); or (2) "acquired by gift from the other spouse during the course of marriage" and the intent that it be separate property is "stated in the conveyance" (inter-spousal gift provision); or (3) was "acquired in exchange for separate property" and no contrary intention that it be marital property is "stated in the conveyance" (exchange provision). N.C.G.S. § 50-20(b)(2). If both parties meet their burdens, then under the statutory scheme of N.C.G.S. § 50-20(b)(1) and (b)(2), the property is excepted from the definition of marital property and is, therefore, separate property.
Once the trial court classifies the property, "[u]nder N.C. Gen. Stat. Sec. 50-20(c), only marital property is subject to distribution." Rogers v. Rogers, 90 N.C. App. 408, 409, 368 S.E.2d 412, 413 (1988).
Under N.C. Gen. Stat. § 50-20(c) (2003), 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 that property.... A trial court must value all marital and divisible property-collectively termed distributable property-in order toreasonably determine whether the distribution ordered is equitable.
Cunningham v. Cunningham, 171 N.C. App. 550, 555-56, 615 S.E.2d 675, 680 (2005) (). Under N.C. Gen. Stat. § 50-20(b)(4):
N.C. Gen. Stat. § 50-20(b)(4) (2008). "If the court determines that an equal division is not equitable, the court shall divide the marital property and divisible property equitably." N.C. Gen. Stat. § 50-20(c) (2008).
"The division of property in an equitable distribution is a matter within the sound discretion of the trial court." Cunningham, 171 N.C. App. at 555, 615 S.E.2d at 680 (internal quotations and citation omitted). "When reviewing an equitable distribution order, the standard of review 'is limited to a determination of whether there was a clear abuse of discretion.'"Petty v. Petty, _ N.C. App. _, _, 680 S.E.2d 894, 898 (2009) (quoting White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985)). "A trial court may be reversed for abuse of discretion only upon a showing that its actions are manifestly unsupported by reason." White, 312 N.C. at 777, 324 S.E.2d at 833. "Further, '[i]t is well established that a trial court's conclusions of law must be supported by its findings of fact.'" Squires v. Squires, 178 N.C. App. 251, 256, 631 S.E.2d 156, 159 (2006) (quoting Robertson v. Robertson, 167 N.C. App. 567, 574, 605 S.E.2d 667, 671 (2004)). "[T]he findings of fact are conclusive [on appeal] if they are supported by any competent evidence from the record." Beightol v. Beightol, 90 N.C. App. 58, 60, 367 S.E.2d 347, 348 (1988).
In addition, "[a] finding of fact not excepted to is binding on appeal." Williams v. Williams, 97 N.C. App. 118, 121, 387 S.E.2d 217, 219 (1990). As an initial matter, defendant challenges only certain findings of fact in the trial court's order. Therefore, all other unchallenged findings are binding on appeal.
Defendant does not dispute that the unimproved real property in Long Beach, North Carolina ("the Long Beach property"), is marital property. Defendant argues that the trial court erred in the valuation of plaintiff's marital interest in the Long Beach property. On the date of separation, the value was $52,500.00 and on the date of the hearing it decreased to $37,500.00.
Prior to the marriage, plaintiff owned a one-half interest in the Long Beach property which she inherited from her father.2 On 19 February 2003, approximately two months after the marriage, plaintiff conveyed her one-half interest in the Long Beach property to the parties as tenants by the entirety. Since there was no dispute regarding the classification of the Long Beach property as marital property, the trial court heard testimony regarding the value of the Long Beach property.
Sandy Hall ("Hall"), a real estate agent with more than 20 years of experience, testified on plaintiff's behalf. Hall testified, without objection, that the fair market value of the Long Beach property on the date of separation was $125,000.00. Hall explained that the consequences of owning properties that do not "perk" include the difficulty of receiving a septic tank permit ("a permit"), and without a permit, property values decrease. Hall further testified that the Long Beach property had not perked as of the date of the hearing...
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