Kabasan v. Kabasan

• Decision Date: 16 January 2018
• Docket Number: No. COA17-254,COA17-254
• Citation: 257 N.C.App. 436,810 S.E.2d 691
• Parties: Sonia KABASAN, Plaintiff, v. Dennis KABASAN, Defendant.
• Court: North Carolina Court of Appeals

257 N.C.App. 436

810 S.E.2d 691

Sonia KABASAN, Plaintiff,

v.Dennis KABASAN, Defendant.

No. COA17-254

Court of Appeals of North Carolina.

Filed: January 16, 2018

Siemens Family Law Group, Asheville, by Jim Siemens, for plaintiff-appellee.

Cecilia Johnson, Asheville, for defendant-appellant.

ZACHARY, Judge.

This appeal arises from domestic litigation between Dennis Kabasan (defendant) and his ex-wife Sonia Kabasan (plaintiff). Defendant appeals from equitable distribution, alimony, and child support orders entered by the trial court on 22 August 2016. Defendant has raised fourteen issues on appeal, in two of which he challenges the trial court's acceptance of Phaedra Xanthos as an expert in accounting, as well as the court's adoption of most of plaintiff's proposed findings and conclusions. Defendant also contends that the trial court abused its discretion in the classification, valuation, and distribution of certain assets in its equitable distribution order. Defendant further argues that the trial court erred in the calculations and rulings made in the court's alimony and child support orders. After consideration of defendant's arguments, in light of the record on appeal and the applicable law, we affirm in part and reverse and remand in part.

Factual and Procedural Background

The parties met in Brazil and were married there on 16 January 1999. Plaintiff was born in Brazil in 1960, and lived in Brazil until her marriage to defendant. Defendant, who was born in 1946, worked until his retirement in 2010 as a physician at the Veterans Administration Hospital in Asheville, North Carolina. Prior to marrying, the parties executed a prenuptial agreement. After they married, the couple moved to Asheville. One child was born to the marriage, a daughter born in 2000. During the marriage, the parties acquired property in the United States and Brazil. They traveled to Brazil, and plaintiff spent time in Brazil with her family.

On 27 December 2013, plaintiff filed a complaint, which was assigned Buncombe County No. 13 CVD 5370, seeking divorce from bed and board, postseparation support, alimony, attorney's fees, and possession of the marital home. Defendant filed an answer on 31 January 2014, denying the material allegations of plaintiff's complaint, raising various defenses, stating a counterclaim for joint legal and physical custody of their daughter, and asking the court to impose travel restrictions on the minor child. In his answer and counterclaim, defendant also alleged that the parties’ prenuptial agreement barred plaintiff's claims for alimony, postseparation support, and attorney's fees, and that the terms of the prenuptial agreement should govern the division of the parties’ property. Plaintiff filed a reply on 28 March 2014, in which she agreed that the prenuptial agreement was valid, asked the court to determine child custody, and sought child support from defendant. On the same day, the trial court entered an order that awarded plaintiff temporary postseparation support and child support, granted the parties joint legal and physical custody of the minor child, and granted plaintiff a writ of possession of the marital home. On 9 July 2015, the trial court entered a final child custody order granting the parties joint legal and physical custody of their daughter.

On 26 August 2015, plaintiff filed a complaint that was assigned Buncombe County No. 15 CVD 3789, seeking absolute divorce, equitable distribution of the parties’ marital assets, and consolidation of the action with her previously-filed complaint. Plaintiff alleged that the prenuptial agreement did not bar her claim for equitable distribution, and that a division of the marital estate "in favor of plaintiff" would be equitable. On 18 September 2015, defendant filed an answer and counterclaim seeking, inter alia , an equal division of the marital estate. The parties were divorced on 26 February 2016. On 8 March 2016, the trial court entered a declaratory judgment that the prenuptial agreement was valid and would be enforced, and that an equal division of the marital estate would be equitable.

A trial was conducted on the issues raised by the parties’ pleadings beginning on 25 April 2016, and on 22 August 2016, the trial court entered orders for equitable distribution, alimony, and child support. The evidence adduced at trial and the provisions of the court's orders are discussed below, as relevant to the issues raised on appeal. Defendant has appealed to this Court from these orders.

Standard of Review

"It is undisputed that ‘[t]he standard of review on appeal from a judgment entered after a non-jury trial is whether there is competent evidence to support the trial court's findings of fact and whether the findings support the conclusions of law and ensuing judgment.’ " Cushman v. Cushman , 244 N.C. App. 555, 556–58, 781 S.E.2d 499, 501 (2016) (quoting Pegg v. Jones , 187 N.C. App. 355, 358, 653 S.E.2d 229, 231 (2007) ). "The trial court's findings of fact are binding on appeal as long as competent evidence supports them, despite the existence of evidence to the contrary." Resort Realty of the Outer Banks, Inc. v. Brandt , 163 N.C. App. 114, 116, 593 S.E.2d 404, 408 (2004) (citation omitted). "Simply stated, where the trial court's findings of fact are supported by competent evidence, and the findings of fact, in turn, support the trial court's conclusions of law, the decision of the trial court will be affirmed. This Court will not reweigh the evidence." Pegg, 187 N.C. App. at 358, 653 S.E.2d at 231. Moreover, "where a trial court's findings of fact are not challenged on appeal, they are deemed to be supported by competent evidence and are binding on appeal." Juhnn v. Juhnn , 242 N.C. App. 58, 63, 775 S.E.2d 310, 313 (2015) (citation omitted). "While findings of fact by the trial court in a non-jury case are conclusive on appeal if there is evidence to support those findings, conclusions of law are reviewable de novo ." Robbins v. Robbins , 240 N.C. App. 386, 394, 770 S.E.2d 723, 728 (internal quotation marks omitted), disc. review denied , ––– N.C. –––– , 775 S.E.2d 858 (2015).

Defendant has appealed from orders for equitable distribution, child support, and alimony. "[W]hen reviewing an equitable distribution order, this Court will uphold the trial court's written findings of fact as long as they are supported by competent evidence. However, the trial court's conclusions of law are reviewed de novo . Finally, this Court reviews the trial court's actual distribution decision for abuse of discretion." Mugno v. Mugno , 205 N.C. App. 273, 276, 695 S.E.2d 495, 498 (2010) (citations and quotation marks omitted). Similarly, our review of a child support order

is limited to a determination whether the trial court abused its discretion. Under this standard of review, the trial court's ruling will be overturned only upon a showing that it was so arbitrary that it could not have been the result of a reasoned decision. The trial court must, however, make sufficient findings of fact and conclusions of law to allow the reviewing court to determine whether a judgment, and the legal conclusions that underlie it, represent a correct application of the law.

Spicer v. Spicer , 168 N.C. App. 283, 287, 607 S.E.2d 678, 682 (2005) (citations omitted). This Court has summarized our review of alimony orders as follows:

If the court's findings of fact are supported by competent evidence, they are conclusive on appeal, even if there is contrary evidence. Whether a spouse is entitled to an award of alimony or post-separation support is a question of law. This Court reviews questions of law de novo .... The trial court's determination of the amount of alimony is reviewed for an abuse of discretion.

Collins v. Collins , 243 N.C. App. 696, 699, 778 S.E.2d 854, 856 (2015) (citing Rickert v. Rickert , 282 N.C. 373, 379, 193 S.E.2d 79, 82 (1972) ) (other citations omitted).

Qualification of Plaintiff's Expert Witness

Defendant first argues that the trial court "abused its discretion when it accepted Phaedra Xanthos as an expert in forensic accounting and valuation" and that the court "should have disqualified her and her testimony once it became apparent she was not competent to testify as an expert." We disagree.

Initial Qualification of Ms. Xanthos as an Expert in Accounting

Defendant argues that it was error to allow Ms. Xanthos to testify as an expert in "forensic accounting and valuation." Although in its equitable distribution order, the trial court found that Ms. Xanthos "was qualified as an expert in forensic accounting and valuation," the transcript establishes that, following voir dire, the trial court ruled that "Ms. Xanthos is qualified by this Court in the area—as an expert in the area of accounting." At no time during the trial did the trial court rule that Ms. Xanthos was an expert in forensic accounting and valuation. We conclude that Ms. Xanthos testified as an expert in accounting, rather than as an expert in related specialties. Moreover, at trial, defendant did not dispute that Ms. Xanthos was well-qualified as an expert in accounting, forensic accounting, or valuation. Following voir dire, defendant's counsel stated:

Your Honor, I certainly don't deny that she, Miss Xanthos, has an impressive resume. Certainly she's well qualified in fraud investigations, in business valuations, all of these things listed here. I would contend, however, that she is certainly not an expert in coverture fractions, in valuing pensions in North Carolina, anything like that.... So I have very real reservations about Miss Xanthos presenting herself as an expert in this case specifically as to a retirement account and an annuity.

Discussion

On appeal, defendant argues that the trial court abused its discretion by failing to disqualify Ms. Xanthos as an expert, on the grounds that she offered "speculative" testimony as to the value of certain financial assets and real property, and that her...