Robbins v. Robbins

• Decision Date: 07 April 2015
• Docket Number: No. COA14–742.,COA14–742.
• Citation: 770 S.E.2d 723,240 N.C.App. 386
• Court: North Carolina Court of Appeals
• Parties: Charles Daniel ROBBINS, Plaintiff, v. Karen Thomas ROBBINS, Defendant.

240 N.C.App. 386

770 S.E.2d 723

Charles Daniel ROBBINS, Plaintiff,

v.Karen Thomas ROBBINS, Defendant.

No. COA14–742.

Court of Appeals of North Carolina.

April 7, 2015.

Garrens, Foster & Sargeant, P.A., Kinston, by Jonathon L. Sargeant, for plaintiff.

W. Gregory Duke, Greenville, for defendant.

McCULLOUGH, Judge.

Defendant appeals from an equitable distribution order entered 8 January 2014. Based on the reasons stated herein, we affirm in part, and reverse and remand in part, the order of the trial court.

I. Background

On 31 May 2011, plaintiff Charles Daniel Robbins filed a complaint against defendant Karen Thomas Robbins for equitable distribution and interim equitable distribution. Plaintiff and defendant were married on 1 June 1987 and separated on or about 5 February 2011. Plaintiff argued that it would be equitable for plaintiff to receive more than fifty percent of the marital property. Plaintiff alleged that after the parties' separation, the parties' marital residence had been damaged by recent storms in Greene County. Plaintiff further alleged that defendant had filed claims with the parties' insurance carrier for said damage and "is not using said insurance proceeds to repair the marital property of the parties and is spending said funds for her personal gain." Plaintiff argued that the trial court should require defendant to provide an accounting for insurance proceeds received and spent by plaintiff.

On 8 August 2011, defendant filed an answer and counterclaims for post-separation support and alimony, equitable distribution, and attorneys' fees.

Following a hearing held on 5 July 2011, the trial court entered an order for interim equitable distribution on 6 September 2011. The trial court found that defendant was in sole possession of the marital residence, that storms had damaged the marital residence, and that defendant had filed claims with the insurance carrier for the damages. Based upon the foregoing, the trial court ordered the following:

1. That within sixty (60) days from today, July 5, 2011, the defendant, Karen Thomas Robbins, shall provide a written accounting to counsel for plaintiff with documents showing the following:

a. All insurance claims of any kind made with regard to the marital residence or any personal property of either party from January 1, 2011 to the present;

b. All insurance proceeds received by the defendant, including the amount and date received;

c. All insurance proceeds dispersed [sic] or spent for any reason prior to July 5, 2011 including a specific list of items or services purchased; and

d. The current balance of all insurance proceeds which are being held by the defendant pursuant to this order.

2. That effective July 5, 2011, the defendant, Karen Thomas Robbins, be and the same is hereby restrained and enjoined from trading, spending or otherwise transferring any insurance proceeds in her possession or control until further order of the Court.

On 13 August 2012, plaintiff filed a motion for contempt against defendant arguing that although defendant had the ability to comply with the 6 September 2011 order for interim equitable distribution, she had wrongfully, willfully, and intentionally failed and refused to do so. Plaintiff asserted that:

a. The defendant failed to produce any documents or records by the court ordered deadline of September 3, 2011;

b. On or about February 14, 2012, the defendant produced several documents to counsel for plaintiff which included statements handwritten by various persons which were dated in November of 2011. Said documents failed to comply with the Order of the Court in that the documents:

1. Did not include any documents showing the amount of insurance proceeds received;

2. Did not include the dates insurance proceeds were received;

3. Did not include the dates any insurance proceeds were dispersed [sic];

4. Did not include any detailed itemization of the items or services purchased with the insurance money; and

5. Did not include any contact information which would allow counsel for plaintiff to verify any of the information provided.

c. In open court on June 12, 2012, the defendant produced an additional insurance document.

Plaintiff also prayed that the court order defendant to pay plaintiff's attorneys' fees.

On 7 September 2012, the trial court entered a civil contempt order against defendant. The trial court found that defendant had failed to produce any documents or records by the court ordered deadline of 3 September 2011 and that the information produced by defendant was incomplete, late, and not in compliance with the trial court's 6 September 2011 order. The trial court also found that defendant suffered from severe anxiety, clinical depression, multiple seizures, and short-term memory loss. After considering defendant's medical condition and current medications, the trial court concluded that defendant should be given a means to purge herself of contempt and ordered that she could purge herself by fully complying with the 6 September 2011 order on or before 14 September 2012 by filing the required information with the Clerk of Court of Greene County and serving a copy on plaintiff's counsel; coming to the office of the Clerk of Court of Greene County on 7 September 2012 to be served with the civil contempt order by acceptance or by a sheriff's deputy; and, paying plaintiff's attorneys' fees in the amount of $1, 25.00 by 1 December 2012.

Following hearings held during the 9 January 2013 and 6 February 2013 terms of Greene County District Civil Court, the trial court entered an equitable distribution order on 25 February 2013. The trial court noted that although defendant was present at the 9 January 2013 hearing, she was not present and not represented by counsel at the 6 February 2013 hearing. Nevertheless, the trial court completed the equitable distribution hearing and found that an equal distribution of the net marital estate was not equitable in the parties' case based on defendant's neglect of the marital residence. Plaintiff was awarded more than one-half of the net marital estate. The marital residence was awarded to plaintiff and defendant was ordered to vacate the marital residence within thirty days of the filing of the order.

On 8 March 2013, defendant filed a motion for a new trial pursuant to Rule 59 of the North Carolina Rules of Civil Procedure. Defendant argued that she missed the 6 February 2013 equitable distribution hearing based on a medical illness.

On 8 May 2013, the trial court entered an order setting aside the 25 February 2013 equitable distribution order and allowing defendant an opportunity to complete the presentation of her evidence. The equitable distribution hearing was completed on 18 November 2013.

On 8 January 2014, the trial court entered an equitable distribution order making the following pertinent findings of fact:

15. Following the parties' separation, the house was damaged by a tornado on April 16, 2011. Homeowners insurance was in effect on April 16, 2011, paid for by the defendant, when a tornado damaged the marital residence of the parties. This insurance coverage was paid for by the Defendant and the proceeds checks were made payable to the Defendant. As a result of the tornado, the homeowners' insurance company, Nationwide Insurance Company, paid the Defendant several claim installments which totaled $16,572.00.

....

17. With regard to the Insurance Proceeds, the court finds that said insurance proceeds were paid for damages to a marital asset that being the marital residence located at 571 Central Drive in Snow Hill, North Carolina. The parties purchased and owned this asset jointly during the marriage, and both parties have an equitable interest in the insurance proceeds from the damage to this asset. As such, the court finds that the Insurance Proceeds received by the defendant for the damages to the marital residence are classified as marital property and should be divided by the court in Equitable Distribution.

....

19. In her testimony to this court on November 18, 2013 and November 19, 2013, the defendant admitted under oath that she had violated the July 5, 2011 Order of the Court as follows:

a. The defendant was not truthful in her previous accounting to the court in that the defendant paid $900.00 to Henry Manning from the insurance proceeds which was not listed in her accounting to the court;

b. The defendant was not truthful in her previous accounting to the court in that the defendant paid money from the insurance proceeds to four (4) other individuals who were not listed in her accounting to the court;

c. The defendant was not truthful in her previous accounting to the court in that the defendant calculated the total cost of materials which were allegedly purchased with the insurance proceeds by simply deducting the cost of labor from the total amount of the insurance proceeds and assuming that the remaining amount was spent entirely for materials; d. The defendant spent and dispersed [sic] insurance proceeds after July 5, 2011 when she was under the Order of this court not to spend or disperse [sic] insurance proceeds. The defendant presented multiple receipts for materials into evidence which are dated after July 5, 2011, and the defendant specifically testified that she paid multiple individuals for labor and repairs to the marital residence with insurance money after July 5, 2011 and without the permission of the court.

....

21. The failure of the defendant to comply with the July 5, 2011 Order of the Court has created an [sic] number of problems for the court in attempting to determine which repairs to the marital residence were made with the insurance proceeds. In addition, due to the defendant's failure to comply with the July 5, 2011 court order, the plaintiff was not involved in any decision making with regard to the repairs to the marital residence and the Court finds that the decisions of the defendant as to what repairs to make to the marital residence have had a

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