Robinson v. Robinson

• Decision Date: 15 March 2011
• Docket Number: No. COA10–604.,COA10–604.
• Citation: 707 S.E.2d 785
• Parties: Joel ROBINSON, Plaintiffv.Dawn ROBINSON, Defendant.
• Court: North Carolina Court of Appeals

707 S.E.2d 785

Joel ROBINSON, Plaintiff

v.Dawn ROBINSON, Defendant.

No. COA10–604.

Court of Appeals of North Carolina.

March 15, 2011.

OPINION TEXT STARTS HERE

Appeal by plaintiff from judgment entered 15 December 2009 by Judge Wendy M. Enochs in Guilford County District Court. Heard in the Court of Appeals 15 November 2010.

McKinney & Justice, P.A., Greensboro, by Rebecca Perry, for plaintiff-appellant.

Tuggle Duggins & Meschan, P.A., Greensboro, by Jessica B. Cox, for defendant-appellee.

MARTIN, Chief Judge.

Plaintiff Joel Robinson and defendant Dawn Robinson ¹ were married to each other on 21 December 1985, and separated sometime between 1 September 2006 and 2 January 2007. The parties had two children: Amber, born 28 February 1989, and Anson, born 11 December 1992. From the date of the parties' separation until the children reached the age of majority, they lived with Ms. Robinson. Amber reached the age of majority on 28 February 2007 and Anson recently reached the age of majority on 11 December 2010.

On 6 November 2007, Mr. Robinson filed a complaint for divorce, custody, and equitable distribution. Ms. Robinson filed an answer and counterclaims, seeking custody, child support, post-separation support, alimony, attorney's fees, and equitable distribution. The parties entered into a mediated parenting agreement in February 2008 with regard to Anson, providing that he would reside primarily with Ms. Robinson subject to scheduled visitation with Mr. Robinson, who was then a resident of Georgia. By order entered 4 November 2009, which recites that it was delivered to counsel for both parties, the matter was set for trial on 7 December 2009 on the remaining issues of child support, alimony, and equitable distribution.

Neither Mr. Robinson nor his then-attorney attended the 7 December 2009 hearing. The trial court heard evidence offered by Ms. Robinson and entered an Order and Judgment in which it made a distribution of property, set the 2010 visitation schedule for Anson, awarded retroactive and prospective child support, awarded alimony in the amount of $1,900.00 per month, and awarded attorney's fees in the amount of $12,836.40. Mr. Robinson appeals.

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On appeal, Mr. Robinson presents six issues for our review. He contends the trial court (I) erred in its equitable distribution of the parties' property and debts, (II) erred in awarding alimony, (III) erred in awarding child support, (IV) erred in calculating that he owed amounts for retroactive alimony and child support, (V) erred in setting the visitation schedule, and (VI) erred in awarding Ms. Robinson attorney's fees.

I. Equitable Distribution

Mr. Robinson first contends the trial court erred by failing to identify, classify, value, and distribute all of the parties' property and debts. Our review of an equitable distribution order is limited to determining whether the trial court abused its discretion in distributing the parties' marital property. Hartsell v. Hartsell, 189 N.C.App. 65, 68–69, 657 S.E.2d 724, 726 (2008) (quoting Stone v. Stone, 181 N.C.App. 688, 690, 640 S.E.2d 826, 827–28 (2007)); Beightol v. Beightol, 90 N.C.App. 58, 60, 367 S.E.2d 347, 348 (“The distribution of marital property is vested in the discretion of the trial courts and the exercise of that discretion will not be upset absent clear abuse.”), disc. review denied, 323 N.C. 171, 373 S.E.2d 104 (1988). “Accordingly, the findings of fact are conclusive if they are supported by any competent evidence from the record.” Beightol, 90 N.C.App. at 60, 367 S.E.2d at 348 (citing Alexander v. Alexander, 68 N.C.App. 548, 552, 315 S.E.2d 772, 776 (1984)).

However, even applying this generous standard of review, there are still requirements with which trial courts must comply. Under N.C.G.S. § 50–20(c), equitable distribution is a three-step process; the trial court must (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.” Beightol, 90 N.C.App. at 63, 367 S.E.2d at 350.

Mr. Robinson contends the trial court erred by not including findings as to the classification or value of a number of different items of property and debts, including: the marital residence located at 4625 Jamesford Drive, the home located at 3114 Iron Gate Trail titled in the names of both parties and Ms. Robinson's father, certain bank accounts, vehicles, vehicle loans, the home mortgages, and the total net marital estate. We agree.

The first step of the equitable distribution process requires the trial court to classify all of the marital and divisible property—collectively termed distributable property—in order that a reviewing court may reasonably determine whether the distribution ordered is equitable. See Cunningham v. Cunningham, 171 N.C.App. 550, 555–56, 615 S.E.2d 675, 680 (2005). In fact, “to enter a proper equitable distribution judgment, the trial court must specifically and particularly classify and value all assets and debts maintained by the parties at the date of separation.” Dalgewicz v. Dalgewicz, 167 N.C.App. 412, 423, 606 S.E.2d 164, 171 (2004) (emphasis added). In determining the value of the property, the trial court must consider the property's market value, if any, less the amount of any encumbrance serving to offset or reduce the market value. Alexander, 68 N.C.App. at 550–51, 315 S.E.2d at 775. Furthermore, “in doing all these things the court must be specific and detailed enough to enable a reviewing court to determine what was done and its correctness.” Carr v. Carr, 92 N.C.App. 378, 379, 374 S.E.2d 426, 427 (1988) (citing Wade v. Wade, 72 N.C.App. 372, 376, 325 S.E.2d 260, 266, disc. review denied, 313 N.C. 612, 330 S.E.2d 616 (1985)).

In this case, the trial court made no finding with respect to the total net value of the parties' marital estate. See, e.g., id. (finding that the order was incomplete as it failed to contain findings of fact concerning the net value of the total marital estate.); Little v. Little, 74 N.C.App. 12, 18, 327 S.E.2d 283, 288 (1985). Moreover, there was no finding as to the classification or value of the marital residence at 4625 Jamesford Drive, where Ms. Robinson was still living as of the hearing, notwithstanding substantial evidence in the record as to its value. See Soares v. Soares, 86 N.C.App. 369, 371–72, 357 S.E.2d 418, 419 (1987). In fact, the court failed to even mention that residence at 4625 Jamesford Drive in its order. With respect to the property located at 3114 Iron Gate Trail, the trial court found only that “[t]he parties acquired [the] house and lot at 3114 Iron Gate Trail” and then ordered that Mr. Robinson “convey his one-third undivided interest in said residence to [Ms. Robinson] and her father.” While Ms. Robinson's testimony with respect to that property leads this Court to believe that the trial court meant to classify the 3114 Iron Gate Trail property as separate property, it failed to explicitly do so. It is not enough that evidence can be found within the record which could support such classification; the court must actually classify all of the property and make a finding as to the value of all marital property. Warren v. Warren, 175 N.C.App. 509, 514–15, 623 S.E.2d 800, 804 (2006) (citing Coble v. Coble, 300 N.C. 708, 712, 268 S.E.2d 185, 189 (1980)).

In a related argument, Mr. Robinson also challenges the trial court's finding of fact that the parties

have stipulated and agreed that each should keep the household furniture and furnishings and vehicles now in each party's possession, having an approximately equal value. The parties have further stipulated and agreed that the defendant should be distributed her individual checking account having a balance of $329.45 and the joint checking account having a balance of $1,000.00 and that plaintiff should be distributed his individual checking account having a balance of $2,273.10.

Mr. Robinson argues that this finding is not supported by competent evidence because no such stipulation appears in the record. Therefore he contends the trial court erred by not valuing and distributing the personal property enumerated in the finding. Decisions of this Court validate his arguments. We have held that a simple oral division of marital property is not binding. See Holder v. Holder, 87 N.C.App. 578, 582, 361 S.E.2d 891, 893 (1987); McIntosh v. McIntosh, 74 N.C.App. 554, 555, 328 S.E.2d 600, 601 (1985) (providing that a contemporaneous inquiry of parties by trial court is required before accepting oral stipulations regarding distribution of marital property).

Separation agreements are favored, as they “tend to simplify, shorten, or settle litigation as well as save costs to the parties,” McIntosh, 74 N.C.App. at 556, 328 S.E.2d at 602, while “ ‘enabling divorcing partners to come to a mutually acceptable settlement of their financial affairs.’ ” Brenenstuhl v. Brenenstuhl, 169 N.C.App. 433, 435, 610 S.E.2d 301, 303 (2005) (quoting Hagler v. Hagler, 319 N.C. 287, 290, 354 S.E.2d 228, 232 (1987)). For this reason, N.C.G.S. § 50–20(d) makes binding such agreements between parties only if they are written, “duly executed, and acknowledged in accordance with the provisions of G.S. 52–10 and 52–10.1” (requiring agreements between spouses not to be against public policy and be acknowledged before a certifying officer not a party to the contract). These requirements for enforcement were enacted to insure against fraud and overreaching on the part of one of the spouses. McIntosh, 74 N.C.App. at 556, 328 S.E.2d at 602.

This Court held in McIntosh that the

same scrutiny which is applied to separation agreements must also be applied to stipulations entered into by a husband and a wife regarding the distribution of their marital property. Any agreement entered into by parties regarding the distribution of their marital property should be reduced to writing, duly executed and...