Rosario v. Rosario

• Decision Date: 01 August 2000
• Docket Number: No. COA99-1183.,COA99-1183.
• Citation: 533 S.E.2d 274,139 NC App. 258
• Court: North Carolina Court of Appeals
• Parties: Arlene ROSARIO, Plaintiff, v. Luis M. ROSARIO, Defendant.

533 S.E.2d 274

139 NC App. 258

Arlene ROSARIO, Plaintiff, v. Luis M. ROSARIO, Defendant.

No. COA99-1183.

Court of Appeals of North Carolina.

August 1, 2000.

Jennifer R. Pope, Jacksonville, for plaintiff-appellee.

Lanier and Fountain, by Timothy R. Oswalt, Jacksonville, for defendant-appellant.

EDMUNDS, Judge.

Defendant appeals from a judgment awarding plaintiff an unequal division of their marital estate. We reverse.

The parties were married on 2 May 1986 and separated on 12 September 1997. On 2 October 1997, plaintiff filed this action seeking a divorce from bed and board, child custody, alimony, and equitable distribution of the marital estate. Defendant answered on 14 November 1997 and counterclaimed, seeking divorce from bed and board, child custody, and equitable distribution. On 11 August 1998, the trial court entered an order awarding plaintiff a divorce from bed and board, post-separation support, twenty-eight percent of defendant's net retirement income, and possession of the marital home.

On 19 March 1999, signed nunc pro tunc 28 May 1999, the trial court entered judgment incorporating the prior order and awarding plaintiff an unequal division of the marital estate. Disregarding retirement income (which had been distributed in the August 1998 order) and the marital home (which defendant already had deeded to plaintiff at the time of the March hearing), the March 1999 judgment distributed to plaintiff approximately $12,000 in assets and $2,100 in debts and distributed to defendant approximately $26,250 in assets and $26,700 in debts. The trial court also denied plaintiff permanent alimony and awarded plaintiff attorney's fees. Defendant appeals the unequal distribution.

Defendant argues that the findings of fact and evidence in the record are insufficient to support an unequal division of the marital estate. N.C. Gen.Stat. § 50-20(c) (1999) provides: "There shall be an equal division by using net value of marital property ... unless the court determines that an equal division is not equitable. If the court determines that an equal division is not equitable, the court shall divide the marital property... equitably." The statute then sets forth twelve distributional factors for the court to consider when making its determination. See id.

In the case at bar, the trial court made the following pertinent findings of fact:

4. That the Court has previously ruled on the issues of postseparation support, interim allocation of marital assets, divorce from bed and board, and determination of child support owed, in an Order entered August 11, 1998, and said Order is adopted herein.

5. That the issues before the Court at this time are alimony, attorney fees, equitable distribution of the remaining marital property and debts, and payment of child support arrearages.

....

7. That the defendant is an able bodied person, still gainfully employed, and earning seventy-two (72%) per cent in monthly military retirement income; that the plaintiff is an able bodied person, still gainfully employed as an office assistant and now receiving twenty-eight (28%) per cent of the defendant's disposable military retirement income.

8. That it is not necessary for the Court to value the defendant's military retirement because the Court has chosen to make an in kind distribution of said asset as set forth in the previous Order of this Court.

9. That since the entry of the Order on August 11, 1998, the defendant has deeded his interest in and to the real estate and the marital home ... to the plaintiff.

....

11. That the plaintiff seeks an unequal distribution in the division of marital assets and debts. In considering whether an equal division is equitable, the Court has considered all of the statutory factors raised by both parties, including:

a. The marriage's eleven year four month duration.

b. The income and liabilities of each party.

c. The plaintiff's contention that she helped the career potential of the defendant.

d. The plaintiff's contribution of separate funds to the marital home.

e. The tax consequences to the parties.

f. The post separation use and maintenance of the marital home and payment of mortgage payments.

Additionally, in both its findings of fact and conclusions of law, the trial court described and provided a fair market value of the parties' assets. The court then listed and distributed the marital debt of the parties, again providing descriptions and amounts due.

Our courts have established several basic principles pertaining to equitable distribution. In Armstrong v. Armstrong, our Supreme Court discussed the requirement that a trial court make specific findings as to the ultimate facts (rather than the evidentiary facts) found by the trial court to support its conclusion regarding equitable distribution:

Although the trial court was not required to recite in detail the evidence considered in determining what division of the property would be equitable, it was required to make findings sufficient to address the statutory factors and support the division ordered.

"The purpose for the requirement of specific findings of fact that support the court's conclusion of law is to permit the appellate court on review `to determine from the record whether the judgment— and the legal conclusions that underlie it— represent a correct application of the law.'" When the findings and conclusions are inadequate, appellate review is effectively precluded. We do not imply that a trial court must make exhaustive findings regarding the evidence presented at the hearing; rather "the trial court should be guided by the same rules applicable to actions for alimony pendente lite and to actions for child support, thus limiting the findings of fact to ultimate, rather than evidentiary facts."

322 N.C. 396, 405-06, 368 S.E.2d 595, 600 (1988) (emphasis added) (internal citations omitted). Ultimate and evidentiary facts have been defined as follows:

"Ultimate facts are the final facts required to establish the plaintiff's cause of action or the defendant's defense; and evidentiary facts are those subsidiary facts required to prove the ultimate facts....

....

... An ultimate fact is the final resulting effect which is reached by processes of logical reasoning from the evidentiary facts."

Peoples v. Peoples, 10 N.C.App. 402, 409, 179 S.E.2d 138, 142 (1971) (first two omissions in original) (quoting Woodard v. Mordecai, 234 N.C. 463, 470, 472, 67 S.E.2d 639, 644, 645 (1951) (citations omitted)).

If evidence is presented only as to one of the section 50-20 statutory factors and that evidence weighs toward an unequal distribution, a finding as to that single factor will support the trial court's conclusion of unequal distribution. See, e.g., Jones v. Jones, 121 N.C.App. 523, 466 S.E.2d 342 (1996)

; Patterson v. Patterson, 81 N.C.App. 255, 343 S.E.2d 595 (1986); Andrews v. Andrews, 79 N.C.App. 228, 338 S.E.2d 809 (1986),

disapproved of on other grounds by Armstrong, 322 N.C. 396, 368 S.E.2d 595. However, if evidence is presented as to several statutory factors, the trial court must make findings as to each factor for which evidence was presented. See, e.g., Collins v. Collins, 125 N.C.App. 113, 479 S.E.2d 240 (1997); Surrette v. Surrette, 114 N.C.App. 368, 442 S.E.2d 123 (1994); Little v. Little, 74 N.C.App. 12, 327 S.E.2d 283 (1985); Alexander v. Alexander, 68 N.C.App. 548, 315 S.E.2d 772 (1984). Finally, a finding stating that the trial court has merely given "due regard" to the section 50-20 factors is insufficient as a matter of law. See, e.g., Daetwyler v. Daetwyler, 130 N.C.App. 246, 502 S.E.2d 662 (1998),

aff'd per curiam, 350 N.C. 375, 514 S.E.2d 89 (1999); Mrozek v. Mrozek, 129 N.C.App. 43, 496 S.E.2d 836 (1998); Collins, 125 N.C.App. 113,

479 S.E.2d 240.

Apart from these basic principles, opinions have diverged as to the necessary specificity of a trial court's findings. For example, in Judkins v. Judkins, the following findings were held sufficient to support an unequal distribution:

"That the Court has considered all of the factors as set forth in G.S. 50-20(c) to include the following:

1. The earning ability of each party;

2. The need of the custodial parent for the use and possession of the marital residence and furniture located therein;

3. The value of defendant's separate property;

4. The defendant's expectation of additional pension.

That based on the foregoing, the Court is of the opinion and finds as a fact that an unequal division of the marital assets and liabilities is equitable...."

113 N.C.App. 734, 741, 441 S.E.2d 139, 142-43 (1994) (omission in original).

Similarly, in Atkinson v. Chandler, the Court examined the sufficiency of the following findings:

6. At the time the Parties were married, the Defendant was employed by the United States Navy and retired on December 1, 1995 with twenty (20) years and one month of service and retired at the rank of an E5.

7. The Defendant receives military retirement and disability retirement of approximately $800.00 (eight hundred dollars) per month.

8. The Parties had approximately six (6) years of marriage and overlapping military service but pursuant to George v. George [115 N.C.App. 387, 444 S.E.2d 449 (1994)] the Defendant's military pension was not vested until after the parties separated, therefore, this is the Defendant's separate property.

9. At the time the Parties were married, the Plaintiff was employed as a civilian at AAFES and was residing in a home located at 1314 Folger Avenue, Fayetteville, NC which had been awarded to her pursuant to a previous separation and divorce.

10. During the course of the marriage, the mortgage was retired by payment of $5,028.53.

11. The Plaintiff is retired from AAFES and the marital interest of her pension is $11,540.00 and this amount is vested because it was accumulated during the marriage.

12. During the course of the marriage, the Parties acquired First Union Accounts, accounts at UCB, IRAs and the Plaintiff had

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