Nordman v. Nordman
| Decision Date | 19 February 2019 |
| Docket Number | No. COA18-405,COA18-405 |
| Citation | 823 S.E.2d 167 (Table) |
| Parties | Melanie Jane NORDMAN, Plaintiff, v. Alan John NORDMAN, Defendant. |
| Court | North Carolina Court of Appeals |
Homesley, Gaines, Dudley & Clodfelter, LLP, by Leah Gaines Messick, for Plaintiff-Appellee.
HORACK TALLEY PHARR & LOWNDES, P.A., by Kyle A. Frost, Charlotte, for Defendant-Appellant.
Defendant Alan John Nordman ("Mr. Nordman") appeals from a combined equitable distribution and contempt order entered in a post-separation support, alimony, and equitable distribution action initiated by Melanie Jane Nordman ("Mrs. Nordman"). Mr. Nordman contends that the trial court erred in: (1) ordering an unequal distribution without sufficient findings of fact; (2) valuing and distributing certain assets; and (3) holding him in contempt. After careful review, we vacate in part, affirm in part, and remand.
Mr. Nordman and Mrs. Nordman were married 23 September 1973 in New York. In February 2012, the couple began to discuss the idea of moving to North Carolina but living apart in separate homes, agreeing to sell the marital home in Commack, New York and split the proceeds to buy new residences. Mrs. Nordman located a property in Mooresville, North Carolina and, in mid-2013, purchased it for $182,000. The sale of the New York home had not yet closed, however, so the couple jointly secured an interest-only loan in the amount of $127,400 to finance the purchase. Both parties signed the note and deed of trust for the mortgage, but only Mrs. Nordman’s name appeared on the deed to the house.
On 7 August 2013, Mrs. Nordman moved into the Mooresville home without Mr. Nordman. The marital home sold the following week, realizing a net sum of $319,995.30. Mr. Nordman placed these funds into joint accounts with Merrill Lynch and Capital One but quickly transferred significant sums into a Scottrade account solely in his name. In January 2014, Mr. Nordman also made a cash purchase of a home in Denver, North Carolina for $217,500 from the proceeds of the marital home; only Mr. Nordman’s name appears on the deed to the property. As a result of these transactions, Mrs. Nordman received $15,000 from the sale of the marital home in New York while Mr. Nordman received $304,995.34.
Mr. Nordman retired in January 2014 and began taking income from a federal pension, which included an elective survivor benefit in favor of Mrs. Nordman. Mrs. Nordman filed this action for post-separation support, alimony, and equitable distribution on 9 April 2014. Mr. Nordman filed an answer and counterclaims on 2 May 2014, seeking an unequal distribution and attorney’s fees.
On 24 September 2014, a preliminary injunction was entered prohibiting waste or conversion of marital assets.1 By another order entered 17 October 2014, the parties stipulated to an interim distribution requiring Mr. Nordman to pay 65% of each monthly mortgage payment on Mrs. Nordman’s home. The parties also agreed that Mrs. Nordman would receive 50% of Mr. Nordman’s federal pension "plus any cost-of-living increases or any other adjustments." Finally, the interim distribution order prohibited both parties from "alter[ing] or modify[ing] the medical insurance coverage or survivor benefit, which are paid out first from [Mr. Nordman’s] pension." Despite these orders, Mr. Nordman sold a Mazda automobile titled in both parties' names in 2015 and purchased dental insurance for himself—reducing his pension payments by roughly $67 a month—without the consent or agreement of Mrs. Nordman.
In light of Mr. Nordman’s actions, Mrs. Nordman filed a motion for contempt in November 2016 and an amended motion in January 2017. The parties' competing equitable distribution claims and Mrs. Nordman’s contempt motion came on for hearing on 24 January 2017. At the hearing, the trial court received evidence concerning distributional factors listed in Section 50-20 of our General Statutes, including the parties' physical health. See N.C. Gen. Stat. § 50-20(c)(3) (2017). Also at issue were the valuation of Mr. Nordman’s Denver home and the classification of: (1) a boat purchased by Mr. Nordman during the marriage; (2) a 2008 Honda Accord titled in both parties' names but driven by their adult son; and (3) tax debts paid by Mrs. Nordman.
The trial court entered an initial joint equitable distribution order and order on contempt on 18 April 2017. Following a combined motion for relief and new trial under Rules 59 and 60 of the North Carolina Rules of Civil Procedure filed by Mr. Nordman and a competing motion filed by Mrs. Nordman, the trial court entered an amended equitable distribution order and order on contempt on 9 August 2017.
In the amended order, the trial court found the fair market value of Mr. Nordman’s Denver home to be $300,305, an increase of $82,805 in value since the date of separation. Though the trial court found the increase to constitute both active appreciation and passive appreciation,2 it distributed the full increase in value to Mr. Nordman as divisible property. The trial court also distributed the Honda and boat to Mr. Nordman as marital property, and awarded Mrs. Nordman a credit from Mr. Nordman’s distribution for her payment of the tax debts. On the whole, the trial court found "that an unequal division of the marital estate is equitable[,]" and concluded that "[a]n unequal division of the marital estate is required to achieve equity with [Mrs. Nordman] receiving 51.5% of the marital estate and [Mr. Nordman] receiving 48.5%."
The trial court also held Mr. Nordman in contempt, finding that he had violated the trial court’s prior orders by: (1) adding dental benefits resulting in a reduction of pension benefits payable to Mrs. Nordman; and (2) selling the Mazda. The trial court ordered Mr. Nordman to pay $782.04 to cover the reduction in pension payments and awarded Mrs. Nordman $1,000 in attorney’s fees. Mr. Nordman filed notice of appeal on the day after the amended order was entered.
Equitable distribution orders, though they may not constitute final judgments depending on the circumstances, may nonetheless be immediately appealed pursuant to Section 50-19.1 of our General Statutes:
Notwithstanding any other pending claims filed in the same action, a party may appeal from an order or judgment adjudicating a claim for ... equitable distribution if the order or judgment would otherwise be a final order or judgment within the meaning of [N.C. Gen. Stat. §] 1A-1, Rule 54(b), but for the pending claims in the same action.
N.C. Gen. Stat. § 50-19.1 (2017). The equitable distribution order appealed in this case falls within this section. Although it does not dispose of all claims in the action, such as Mrs. Nordman’s alimony claim, it would constitute a final judgment within Rule 54(b) "but for the pending claims in the same action." Id. As a result, this Court has jurisdiction to hear Mr. Nordman’s appeal from the equitable distribution award.
The trial court’s decision to hold Mr. Nordman in contempt is likewise immediately appealable. "The appeal of any contempt order ... affects a substantial right and is therefore immediately appealable." Guerrier v. Guerrier , 155 N.C. App. 154, 158, 574 S.E.2d 69, 71 (2002) (citations omitted); see also N.C. Gen. Stat. §§ 1-277(a) & 7A-27(b)(3)(a) (2017) (). We therefore possess jurisdiction to hear Mr. Nordman’s appeal from the contempt portion of the order.
On review of an equitable distribution order rendered following a bench trial we must determine whether competent evidence supports the trial court’s findings of fact and whether those findings support the conclusions of law. Miller v. Miller , ––– N.C. App. ––––, ––––, 799 S.E.2d 890, 901 (2017). Similarly, "[o]ur standard of review in contempt proceedings is limited to whether there is competent evidence to support the findings of fact and whether the findings support the conclusions of law." Blazer v. Blazer , 109 N.C. App. 390, 392, 427 S.E.2d 139, 140 (1993). The findings of fact challenged on appeal are conclusive if supported by competent evidence, though we review any conclusions of law de novo . Miller , ––– N.C. App. at ––––, 799 S.E.2d at 901. When it comes to the trial court’s ultimate equitable distribution award, Robbins v. Robbins , 240 N.C. App. 386, 395, 770 S.E.2d 723, 728 (2015).
Mr. Nordman first argues that the trial court erred in ordering an unequal distribution because it generally failed to make any express findings on those factors in Section 50-20(c) for which evidence was presented. As for the specific findings that Mr. Nordman identifies as absent, he points out that both parties introduced evidence concerning their health and ages—a factor relevant to an unequal distribution under Subsection 50-20(c)(3)—and that the trial court failed to make any findings at all concerning it. Mrs. Nordman concedes that evidence relevant to this factor was introduced and that the trial court failed to make any such findings. After careful review of the record and relevant case law, and in light of the concession by Mrs. Nordman concerning the absence of findings on one of the factors, we agree with Mr. Nordman that remand is required.
We have previously held that "[a] trial court ‘must make findings of fact under section 50-20(c) regarding any of the factors for which evidence is introduced at trial.’ " Warren v. Warren , 175 N.C. App. 509, 518, 623 S.E.2d 800, 805 (2006) (quoting Friend-Novorska v. Novorska , 143 N.C. App. 387, 395, 545 S.E.2d 788, 794 (2001) ). "The requirement to make such...
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