Lawing v. Lawing, 8526DC993

• Decision Date: 03 June 1986
• Docket Number: No. 8526DC993,8526DC993
• Court: North Carolina Court of Appeals
• Parties: Jane Gaffney LAWING v. William Craig LAWING.

Page 100

344 S.E.2d 100

81 N.C.App. 159

Jane Gaffney LAWING v. William Craig LAWING.

No. 8526DC993.

Court of Appeals of North Carolina.

June 3, 1986.

Helms, Mullis & Johnston by W. Donald Carroll, Jr. and Catherine E. Thompson, Charlotte, for plaintiff.

Walker, Palmer & Miller by James E. Walker and H. Irwin Coffield, III, Charlotte, for defendant.

EAGLES, Judge.

These appeals raise a number of questions. The judgment represents for the most part a fair and sound resolution of the issues, but there are errors which require that the case be remanded.

STANDARD OF REVIEW

We presume that the proceedings in the trial court are correct until shown otherwise. Phelps v. McCotter, 252 N.C. 66, 112 S.E.2d 736 (1960). Where the record is silent on a particular point, we presume that the trial court acted correctly. Dobbins v. Paul, 71 N.C.App. 113, 321 S.E.2d 537 (1984). The party asserting error must show from the record not only that the trial court committed error, but that the aggrieved party was prejudiced as a result. G.S. 1A-1, R.Civ.P. 61; Medford v. Davis, 62 N.C.App. 308, 302 S.E.2d 838, disc. rev. denied, 309 N.C. 461, 307 S.E.2d 365 (1983).

The General Assembly has committed the distribution of marital property to the discretion of the trial courts, and the exercise of that discretion will not be disturbed in the absence of clear abuse. White v. White, 312 N.C. 770, 324 S.E.2d 829 (1985). Accordingly, the trial court's rulings in equitable distribution cases receive great deference and may be upset only if they are so arbitrary that they could not have been the result of a reasoned decision. Id. The trial court's findings of fact, on which its exercise of discretion rests, are conclusive if supported by any competent evidence. Humphries v. City of Jacksonville, 300 N.C. [81 N.C.App. 163] 186, 265 S.E.2d 189 (1980). The mere existence of conflicting evidence or discrepancies in evidence will not justify reversal. Coble v. Richardson Corp., 71 N.C.App. 511, 322 S.E.2d 817 (1984). Finally, formal errors in an equitable distribution judgment do not require reversal, particularly where the record reflects a conscientious effort by the trial judge to deal with complicated and extensive evidence. Andrews v. Andrews, 79 N.C.App. 228, 338 S.E.2d 809 (1986). With these general considerations in mind, we turn to the individual assignments of error.

DEFENDANT'S ASSIGNMENTS OF ERROR

I

In his first assignment of error, defendant argues that the court erroneously admitted plaintiff's testimony that "he [defendant] probably intended [business purchases of property] to be investments for he and I because he and I had done more to keep the [family] businesses going." Defendant himself testified later, in response to a question about investments for the family, that any enhancement in value of the family businesses would be for the benefit of the family. Where, as here, evidence of similar import to that objected to comes in elsewhere without objection, the objecting party loses the benefit of its objection. State v. Tysor, 307 N.C. 679, 300 S.E.2d 366 (1983); 1 H. Brandis, N.C. Evidence Section 30 (1982). Further, defendant has not shown how, if at all, plaintiff's vague testimony affected the court's judgment. Wood-Hopkins Contracting Co. v. N.C. State Ports Authority, 284 N.C. 732, 202 S.E.2d 473 (1974). This is especially important in light of the presumptions (1) that the court relied only on competent evidence, Id., and (2) that all property acquired during the marriage is marital property, unless the contrary is shown by clear, cogent and convincing evidence. Loeb v. Loeb, 72 N.C.App. 205, 324 S.E.2d 33, cert. denied, 313 N.C. 508, 329 S.E.2d 393 (1985). This assignment is overruled.

II

Defendant next assigns error to the court's valuation of a ring. Following the local practice, both sides introduced affidavits listing what they contended was the marital personalty with each item's value. Plaintiff valued the ring, which the court awarded to defendant, at $5,000; defendant valued it at $750. No other evidence regarding the ring was introduced. The court gave it a value of $5,000, which defendant now contends was error.

Under the "any competent evidence" standard, plaintiff's affidavit clearly sufficed to support the trial court's finding as to the ring's value. Humphries v. City of Jacksonville, supra.

Defendant argues that since the trial court selected the higher of two widely diverging values, it should have stated its reasons. He cites only In re Wolfe, 202 Mont. 454, 659 P.2d 259 (1983) which is clearly distinguishable. There where independent professional appraisers, one for each side, valued land at $1.6 and $1.2 million, the trial court erred in adopting without explanation the landowning husband's conclusory valuation of $450,000. This court has held that in certain situations the trial court must indicate its valuation method(s). Poore v. Poore, 75 N.C.App. 414, 331 S.E.2d 266 (professional practice), disc. rev. denied, 314 N.C. 543, 335 S.E.2d 316 (1985); but see Patton v. Patton, 78 N.C.App. 247, 337 S.E.2d 607 (1985) (Hedrick, C.J., dissenting) (valuation of corporation). However, this rule has not been applied to personal effects and household property previously and we decline to do so here.

We note that the finding excepted to is one of some 120 individual findings as to household items including such things as "1 lamp (green): Net FMV as of 6/19/1983 $15.00," "5 cats: ... $25.00," "1 telescope: ... $8.95," etc. Values for each item were asserted in long lists as part of each party's affidavits. It appears that in large measure the trial court adopted plaintiff's valuations, resolving any questions of witness credibility aided by extensive oral testimony by both parties. In the absence of evidence that plaintiff's valuation of the ring and her valuations of personalty generally were inherently incredible, defendant cannot now complain to this Court about the trial court's decision to accept plaintiff's valuation as to this one item. We therefore overrule this assignment.

III

Defendant's next question concerns various findings that certain property was marital. Defendant contends that the property in question was acquired through the family businesses, and the court either (1) incorrectly found that it belonged to the marital economy or (2) awarded specific property to plaintiff that the court elsewhere found was an asset of the businesses, erroneously giving plaintiff a double benefit. We note again the "any competent evidence" standard of review and the dual presumptions that the judgment is correct and that property is marital.

A

In his arguments on this question defendant relies in part on the following finding of fact:

The Court notes that a number of items of property, particularly real property, which were listed by the parties in their various exhibits, including their original equitable distribution affidavits, as marital property, are not found herein by the Court as either items of marital property or as items of either the plaintiff's or the defendant's separate property. The Court finds that the items so omitted are neither marital or the separate property of either party. The reason that most of these items are not so included is because, as appears of record, both parties agreed, the plaintiff's agreement coming in the form of a concession during final argument of counsel, that the parcels of real property so omitted are owned by one of the two business entities distributed herein to the defendant.

This finding, argues defendant, leaves ambiguous what property the court treated as marital property and what it valued as part of the assets of the businesses, allowing plaintiff a double recovery.

One of our roles in reviewing findings of fact is to reconcile apparently inconsistent findings and uphold the judgment when practicable. Davis v. Ludlum, 255 N.C. 663, 122 S.E.2d 500 (1961); Spencer v. Spencer, 70 N.C.App. 159, 319 S.E.2d 636 (1984). We presume the correctness of the judgment. We can readily reconcile the quoted finding with the court's specific findings regarding marital property: the court in making findings with respect to specific property obviously found that it was not an asset of the businesses; the B

quoted finding relates only to other property, the residue not treated specifically elsewhere in the judgment.

The record contains a "Summary of the Parties' Stipulated Positions" signed by plaintiff's attorneys. Defendant did not dispute the assertion made at trial that he had stipulated as outlined in the summary (claiming instead that he stipulated erroneously under pressure of time), and the court relied on the summary in the judgment. The record on appeal contains no objection by defendant to the inclusion of the summary in the record. Accordingly we conclude that the summary of stipulations is what it purports to be. See Asheville Woodworking Co. v. Southwick, 119 N.C. 611, 26 S.E. 253 (1896) (appellate court will not disturb trial court's ruling on what records of trial court contain). Compare Hall v. Lassiter, 44 N.C.App. 23, 260 S.E.2d 155 (1979) ("stipulation" not signed by both parties treated as "notice"), disc. rev. denied, 299 N.C. 330, 265 S.E.2d 395 (1980).

A stipulation, once made and of record, is binding on the parties in the absence of fraud or mutual mistake. Therefore, in our review of these assignments of error, we treat the facts stipulated to in the summary as established.

C

Turning to the specific items of property in question, defendant first contends that the court erroneously identified investment property in McCain, North Carolina ("McCain property") as marital property and erred in including it separately in the list of marital property, when it was actually property of LAC. The summary of stipulations indicates that the parties "stipulated to their ownership as 100% marital property of two parcels," including the...