Small v. Small
| Decision Date | 15 September 1992 |
| Docket Number | No. 9126DC739,9126DC739 |
| Citation | 420 S.E.2d 678,107 N.C.App. 474 |
| Parties | Albert B. SMALL, Plaintiff v. Shelby H. SMALL, Defendant and Third-party Plaintiff v. ALJO ENTERPRISES, INC., Third-party Defendant. |
| Court | North Carolina Court of Appeals |
William G. Robinson, Charlotte, for plaintiff and third-party defendant, appellees, cross-appellant.
Joe T. Millsaps, and Cecil M. Curtis, Charlotte, for defendant and third-party plaintiff, appellant, cross-appellee.
In Paradise Lost John Milton described Hell as "confusion worst confounded." This proceeding, we dare not call it a case or a cause, has confused and confounded the parties, the lawyers and the trial judge. Now it confounds us. Despite the obviously well intentioned efforts of the trial lawyers and the trial court, the focus of this legal proceeding has become lost within the complex details of the financial affairs of the parties. The judgment itself as well as the errors assigned thereto by the parties on appeal reflects the loss of direction by all involved.
In a trial without a jury, it is the duty of the trial judge to resolve all issues raised by the pleadings and the evidence by making findings of fact and drawing therefrom conclusions of law upon which to base a final order or judgment. G.S. § 1A-1, Rule 52. See Rosenthal's Bootery, Inc. v. Shavitz, 48 N.C.App. 170, 268 S.E.2d 250 (1980); Heating & Air Conditioning Associates, Inc. v. Myerly, 29 N.C.App. 85, 223 S.E.2d 545, disc. review denied and appeal dismissed, 290 N.C. 94, 225 S.E.2d 323 (1976). When all issues are not so resolved by the trial court, this Court has no option other than to vacate the order and remand the cause to the trial court for completion. See Rosenthal's Bootery v. Shavitz, 48 N.C.App. at 173, 268 S.E.2d at 251; Davis v. Vintage Enterprises and Davis v. Colonial Mobile Homes, 23 N.C.App. 581, 209 S.E.2d 824 (1974).
The difficulty in this proceeding is determining what issues, if any, are raised by defendant's counterclaims, the responses of plaintiff and the third-party defendant, and the evidence presented at trial. Defendant alleges an interest in various items of personal property set forth in the pleading and also in various improved and unimproved parcels of real estate titled in the name of the corporation or in the name of plaintiff. Defendant thereafter prayed the court for "a division of all assets belonging to the parties under a theory of contract." Plaintiff prayed the court "[t]hat the interest of the Plaintiff and Defendant be first determined according to the separation agreement and the post[-]nuptial agreement," and Aljo requested "only that the appropriate division be determined in accordance with the contract made and entered into between the Third[-]party Plaintiff and the Third[-]party Defendant."
The evidence presented at trial, however, attempted only to demonstrate each party's contention as to defendant's percentage of...
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