Langston v. Richardson
| Decision Date | 03 August 2010 |
| Docket Number | No. COA09-1535.,COA09-1535. |
| Citation | 696 S.E.2d 867 |
| Parties | James W. LANGSTON, Plaintiffv.Julie RICHARDSON, as Executrix of the Estate of Jeanne E. Langston, Defendant. |
| Court | North Carolina Court of Appeals |
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Appeal by plaintiff from judgment entered 9 June 2009 by Judge C. Christopher Bean in Perquimans County District Court. Heard in the Court of Appeals 27 April 2010.
The Twiford Law Firm, P.C., by Edward A. O'Neal, Elizabeth City, for plaintiff-appellant.
Trimpi & Nash, LLP, by John G. Trimpi, Elizabeth City, for defendant-appellee.
James W. Langston (“plaintiff”) appeals the trial court's equitable distribution judgment (“the order”). The trial court classified certain joint accounts as marital property, certain debt as separate property, and ordered an equitable distribution of property. We affirm.
On 1 September 1998, plaintiff and Jeanne Langston (“Mrs. Langston”) (collectively “the parties”) were married in Hertford County, North Carolina. There were no children born of the marriage. The parties lived together as husband and wife until 11 February 2004, when they separated.
Prior to the marriage, plaintiff owned several investment accounts. After the parties were married and prior to the date of separation, plaintiff added Mrs. Langston's name to the investment accounts. Also during the marriage, plaintiff and Mrs. Langston negotiated an equity line loan with Wachovia Bank (“the equity line”). On 23 January 2004, less than three weeks before the date of separation, Mrs. Langston withdrew $51,000.00 from the equity line and deposited the funds into a bank account listed in her individual name. Prior to Mrs. Langston's withdrawal, the total indebtedness of the equity line was $6,419.78. On the date of separation, the total indebtedness was $57,419.78.
On 14 May 2004, plaintiff filed a complaint in Perquimans County District Court seeking inter alia, an absolute divorce as well as a distribution of the parties' marital property and debt. Mrs. Langston answered and counterclaimed, seeking inter alia, an equitable distribution. Plaintiff subsequently moved to sever the issue of absolute divorce from the other claims. On 9 May 2005, the trial court granted plaintiff an absolute divorce.
Mrs. Langston died testate on 12 July 2005. Julie Richardson, Executrix of the Estate of Mrs. Langston (“defendant”), was substituted as the party defendant and appeared in a representative capacity in this matter. On 2 December 2008, an Equitable Distribution Pretrial Order was filed. Schedules were included explaining the reasons both parties contended that an equal division of property was not equitable.
The equitable distribution hearing was held on 23 March 2009 in Perquimans County District Court. Plaintiff was 89 years old, received income in the amount of $792.00 per month in Social Security benefits and approximately $1,500.00 per month in retirement benefits. Following the hearing, the trial court entered an order finding and concluding that the investment accounts were marital property and that $51,000.00 of the equity line loan was defendant's separate debt. The court distributed the Wachovia CAP Account, Dominion Direct Account, and Putnam Hartford Capital Manager Contract to plaintiff, and the America's Utility Fund Account to defendant. The court also ordered plaintiff to pay defendant's $51,000.00 separate debt and stated that plaintiff's “obligation to do so was considered as a major factor for an unequal distribution.” Plaintiff appeals.
“The division of property in an equitable distribution is a matter within the sound discretion of the trial court.” Cunningham v. Cunningham, 171 N.C.App. 550, 555, 615 S.E.2d 675, 680 (2005) (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).
Plaintiff argues that the trial court erred in concluding as a matter of law that the investment accounts were marital property. We disagree.
As an initial matter, we note that in the instant case, the trial court made sixty-nine findings of fact in the order. Plaintiff argues only Findings 20, 23, 28, 34 and 40. “Under N.C.R.App. P. 10(a), this Court's review is limited to those findings of fact and conclusions of law properly assigned as error.” Dreyer v. Smith, 163 N.C.App. 155, 156, 592 S.E.2d 594, 595 (2004) (citing Koufman v. Koufman, 330 N.C. 93, 98, 408 S.E.2d 729, 731 (1991)). Assignments of error not argued in plaintiff's brief are abandoned. N.C. R.App. P. 28(b)(6) (2009). “Where no exception is taken to a finding of fact by the trial court, the finding is presumed to be supported by competent evidence and is binding on appeal.” Koufman, 330 N.C. at 97, 408 S.E.2d at 731. Therefore, in the instant case, all the other findings to which plaintiff has not assigned error or argued are presumed to be supported by competent evidence and are binding on this Court.
A pending action for equitable distribution does not abate upon the death of a party. Estate of Nelson v. Nelson, 179 N.C.App. 166, 170, 633 S.E.2d 124, 128 (2006). “Pursuant to N.C. Gen.Stat. § 50-20 (2007), equitable distribution is a three-step process requiring the trial court to ‘(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.’ ” Petty, --- N.C.App. at ----, 680 S.E.2d at 898 (quoting Cunningham, 171 N.C.App. at 555, 615 S.E.2d at 680). “The initial obligation of the trial court in any equitable distribution action is to identify the marital property in accordance with G.S. 50-20 and the appropriate case law.” Cornelius v. Cornelius, 87 N.C.App. 269, 271, 360 S.E.2d 703, 704 (1987) (citing Mauser v. Mauser, 75 N.C.App. 115, 330 S.E.2d 63 (1985)). N.C. Gen.Stat. § 50-20(b) (2008) defines marital and separate property as follows:
“Under 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). “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. A party may satisfy her burden by a preponderance of the evidence.
Id. (citations omitted).
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.
Id. at 206, 401 S.E.2d at 787-88.
In the instant case, plaintiff testified as follows:
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