Mishler v. Mishler
| Decision Date | 03 May 1988 |
| Docket Number | No. 8726DC1045,8726DC1045 |
| Citation | 367 S.E.2d 385,90 N.C.App. 72 |
| Court | North Carolina Court of Appeals |
| Parties | Robert K. MISHLER v. Dorothy H. MISHLER. |
Casstevens, Hanner, Gunter & Gordon by Robert P. Hanner II, Charlotte, for plaintiff-appellant.
DeLaney and Sellers by Timothy G. Sellers, Charlotte, for defendant-appellee.
Plaintiff first contends that the trial court erred in not allowing additional evidence and in failing to make findings of fact concerning the parties' intent to keep their finances separate during the course of their marriage. We disagree.
Despite the fact that the parties had their own individual checking accounts, the record is replete with evidence that no such informal agreement by the parties ever existed. Defendant used her savings to make mortgage payments on real property that plaintiff had purchased prior to the marriage. Defendant, herself, contends that no such financial arrangement existed. What is obvious from the record is that the trial court simply did not believe plaintiff's argument. Plaintiff's contention is totally without merit.
Plaintiff next contends that the trial court erred in classifying certain property as marital and in its valuation of that property. We disagree.
For the most part, plaintiff's contentions concerning certain small items of personal property are frivolous and we decline to discuss each one separately. The fact that these items were acquired during the marriage and the fact that defendant listed them as marital in her equitable distribution affidavit is sufficient evidence that these items were marital.
Concerning the value of these items, plaintiff's basic argument is that the trial court did not accept his estimated value but valued most of the assets at or near defendant's estimated value. This Court is not here to second guess values of marital and separate property where there is evidence to support the trial court's figures. Counsel is cautioned that such arguments are a waste of this Court's time.
There is one item in plaintiff's list which seems to have been incorrectly classified as wholly marital in nature while there is only evidence to support a finding that it is part separate and part marital at best. This error, however, in view of the total value of the marital property, is of such limited significance as not to require a recomputation of the respective awards to the parties. See Harris v. Harris, 84 N.C.App. 353, 352 S.E.2d 869 (1987); see also Hunt v. Hunt, 85 N.C.App. 484, 355 S.E.2d 519 (1987). We reemphasize that in the complex litigation of equitable distribution, this Court will not remand a judgment for obviously insignificant errors.
Plaintiff next contends that the court erred in classifying a $20,000 loan and a $3,000 loan as marital. We disagree. The loans were made during the marriage and the trial court simply did not believe plaintiff's testimony that the loans were made only to him.
Plaintiff also contends that the trial court erred "by failing to consider the debts of the parties when determining what constitutes an equitable distribution of the marital property, by failing to make necessary findings of fact regarding the identification of those debts which comprised marital debts, and by failing to make proper conclusions of law to support its order."
In a case involving equitable distribution, a trial court is required to consider the liabilities of each party whether the debts are joint or individual. Geer v. Geer, 84 N.C.App. 471, 353 S.E.2d 427 (1987); G.S. 50-20(c)(1). In the present case, during plaintiff's testimony concerning these matters, the following transpired on direct examination:
Q. What is your present debt situation, Mr. Mishler?
A. Oh, about $50,000.00.
Q. Can you list that for us right quick?
THE COURT: SUSTAINED. The Affidavit includes that, and if it doesn't, so be it.
In addition, the court improperly restricted defendant's cross-examination of plaintiff by setting an arbitrary limit on the time that the court would allow for cross-examination. The court told defendant that any time taken in cross-examination would be deducted from the time allotted for legal argument. The trial court was incorrect in taking such action. Defendant argues in a cross-assignment of error that this prevented her from, among other things, inquiring about plaintiff's expenses.
The two incidences above make it questionable whether the trial court gave proper consideration to the issue of debts and this case must be remanded to allow the parties sufficient opportunity to present and refute evidence on this matter.
Both plaintiff and defendant contend that the trial court erred in its classification, valuation and distribution of certain real property. Before dealing with these contentions, an explanation of the facts involving this property is needed.
On 6 July 1977, prior to the parties' marriage, plaintiff purchased two lots in Sunset Beach for a price of $10,700. His down payment and his contribution towards the principal before marriage amounted to $4,880. The balance of the principal, $5,820, was paid during the marriage. The combined fair market value of the two lots at the date of marriage was $14,000. The fair market value at the date the parties separated was $40,000. The trial court determined that the lots were part separate and part marital in nature. In determining the separate and the marital interest in the property, the trial court used the following formulas:
$40,000 x $ 5,820 = $16,629 of marital interest
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$14,000
$40,000 x $ 8,180 = $23,371 of separate interest
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$14,000
The $14,000 figure, which represents the total contribution to the acquisition of the property, consisted of the actual payments both separate and marital, and the $3,330 increase in the fair market value from the date of purchase to the date of marriage.
Twelve mobile home lots in Holden Beach, North Carolina were also purchased by plaintiff before the marriage. As with the two lots above, marital funds were used to pay off the remainder of the principal after marriage. The same formula was used to determine the separate and marital interest in the Holden Beach property, with the court adding to plaintiff's separate contribution the appreciation of the property between the date of purchase and the date of marriage. Other real property, including the marital residence in Huntersville, North Carolina, was also classified, valued and distributed. In its division of marital property, the trial court distributed the Holden Beach lots, the Sunset Beach lots and the Huntersville property to plaintiff. Between the time of the parties' separation and the date of the equitable distribution hearing, the value of these properties had increased substantially.
Plaintiff's first contention concerning these properties is that the court erred in classifying them as part separate and part marital because of the parties' informal marital agreement to...
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