Taylor v. Taylor, 885DC472

• Decision Date: 30 December 1988
• Docket Number: No. 885DC472,885DC472
• Citation: 92 N.C.App. 413,374 S.E.2d 644
• Parties: Helen S. TAYLOR v. James H. TAYLOR.
• Court: North Carolina Court of Appeals

Page 644

374 S.E.2d 644

92 N.C.App. 413

Helen S. TAYLOR v. James H. TAYLOR.

No. 885DC472.

Court of Appeals of North Carolina.

Dec. 30, 1988.

Sperry and Cobb by George H. Sperry, Wilmington, for plaintiff-appellee.

Shipman and Lea by Gary K. Shipman, Wilmington, for defendant-appellant.

BECTON, Judge.

This is an appeal challenging the trial court's classification and distribution of the parties' marital property under the Equitable Distribution Act, N.C.Gen.Stat.Sec. 50-20 (1987). From a judgment ordering equal distribution of certain real and personal property classified as marital property, defendant appeals. We affirm in part, vacate and remand in part.

I

The plaintiff-appellee, Helen S. Taylor, and the defendant-appellant, James H. Taylor, married on 23 June 1974. The couple separated on 12 October 1985 and divorced on 14 November 1986.

On 23 and 24 March 1987, the trial court heard and received evidence on the Taylors' respective claims for equitable distribution of their marital property. The evidence, presented in the form of testimony from the parties and other witnesses, and in the form of books, records, reports, affidavits, and stipulations, produced "complexities of ... issues" that caused the judge to take the matter under advisement at the conclusion of the hearing. He entered judgment approximately nine months later, on 18 December 1987. We will summarize those parts of the judgment, and the evidence relevant to them, that most directly involve the issues now on appeal.

A. Classification of the Personal Property

Helen Taylor filed with the court, and testified from, an Equitable Distribution Affidavit. The affidavit listed under "Item # 5" two pieces of personalty Ms. Taylor claimed as belonging to her. These items, along with a wall clock that was a birthday gift from Ms. Taylor's mother, were found by the judge to constitute Helen Taylor's separate property. The judge found as fact that Helen Taylor's separate property had a net market value of $80. He found that James Taylor "may have some separate property[,] but the evidence is so elusive the court cannot find as a fact what his separate property would be."

"Item # 7" on the affidavit consisted of a four-page list of household furnishings and tools that Ms. Taylor averred "[were] marital property on the date of separation." This list detailed the articles, several of which Ms. Taylor claimed to have been inter-spousal gifts and wedding gifts, their dates of acquisition, and their value as of the date the Taylors separated.

At the hearing, James Taylor's attorney questioned Ms. Taylor about the household furniture. She acknowledged that Mr. Taylor "had ... furnished" their residence prior to the marriage, but she claimed that the items listed on her affidavit were purchased after the Taylors had married. Mr. Taylor testified at the hearing that Ms. Taylor might have acquired "a few pots and pans" during the marriage but that the residence was otherwise "fully stocked ... when she moved in."

Ms. Taylor also claimed that sundry tools were marital property. She acknowledged that Mr. Taylor had owned tools prior to the marriage and that she had purchased "about four or five" tools for him as gifts. Seeking to contradict her, Mr. Taylor testified he had purchased some of the tools prior to the marriage, claimed the Taylors did not possess various tools Helen Taylor had included on her affidavit, and claimed others had been gifts from Ms. Taylor.

B. Classification of the Real Property

The judge found as a fact that all of the real property the Taylors owned--two houses, a 20-acre tract of land, and three vacant lots--were marital property.

The evidence of both parties tended to show that the Taylors' marital residence, at 210 Bermuda Drive in Wilmington, had been Mr. Taylor's residence during a previous marriage. To acquire his former wife's interest in the house and its adjacent lot, Mr. Taylor paid her $2,115.73. On 15 January 1976, Mr. Taylor deeded the house and lot to himself and Helen Taylor to hold as tenants by the entirety.

The evidence also showed that on 7 October 1985, Mr. Taylor used $5,000 of marital funds as a down payment on a house and land at 541 Castle Hayne Road. The purchase price of this property was $38,000; the financing arrangement apparently called for payment of the $33,000 balance by October 1986. Title to the Castle Hayne property was taken in Mr. Taylor's name only; Ms. Taylor signed a document on 4 October 1985 releasing her marital interest in the property.

In September 1986, Mr. Taylor borrowed approximately $32,000 from a third-party tenant of the Castle Hayne Road property in order to pay off the original note. At the hearing, the tenant testified she had borrowed $25,000 from the Wachovia Bank to enable her to make the loan to Mr. Taylor and that, in lieu of rent, she made monthly payments to the bank. Mr. Taylor testified that the original lienholders had not yet cancelled the deed of trust and that there were a "few thousand dollars" still owing on the note. He testified further that he had given a second deed of trust to the tenant as security for her loan to him.

C. Pending Litigation

The judge found as fact that both parties had been gainfully employed since the marriage, but that James Taylor had lost his job and had a lawsuit pending against his former employer for wrongful termination. The judge further found that "if [Mr. Taylor] receives any monies from that lawsuit that are reimbursed him for medical expenses or los[t] wages ... [Helen Taylor] is entitled to one-half of said funds."

D. The Judgment

The judge valued the personal marital property at $23,252. He appended to the judgment two lists, one entitled "Wife Property," the other "Husband Property." These lists described the personalty, dates of acquisition, and value as of the date of separation. The property awarded to Helen Taylor totaled $11,626, as did the property awarded to James Taylor.

Deeming all of the realty to be marital property, the judge ordered the property sold, with the proceeds to be divided equally between the parties. He directed James Taylor to pay, from separate funds, the balance owing on the original $33,000 encumbrance on the Castle Hayne Road property prior to that property's sale.

James Taylor appeals from the judgment.

II

Equitable distribution follows a statutorily-prescribed formula. The trial court first classifies the property as marital or separate; next, it determines the marital property's net value; last, it distributes that property between the parties. E.g., Cable v. Cable, 76 N.C.App. 134, 137, 331 S.E.2d 765, 767 (1985), disc. rev. denied, 315 N.C. 182, 337 S.E.2d 856 (1985). Mr. Taylor acknowledges in his brief that trial courts have broad discretion in making an equitable distribution. See White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985). He further recognizes that if the judge's adequate findings of fact are supported by competent evidence, we will not disturb the judgment on review unless the appellant shows a clear abuse of discretion. See Johnson v. Johnson, 78 N.C.App. 787, 790, 338 S.E.2d 567, 569 (1986). Notwithstanding, Mr. Taylor argues on appeal that the trial judge incorrectly classified the marital and separate property and inequitably distributed the property found to be marital. We shall address each contention in turn.

III

In his brief, Mr. Taylor has abandoned voluntarily two assignments of error. Of the twelve assignments remaining, ten address the classification issue. The gist of Mr. Taylor's argument is that he brought forth enough evidence at the equitable distribution hearing to have allowed the trial judge to identify the tools and household furnishings as being Mr. Taylor's separate property and to identify the Bermuda Drive and Castle Hayne Road houses as being marital property in part and Mr. Taylor's separate property in part. Because Mr. Taylor has challenged the judge's findings of fact in this way, our review will be limited to the question whether any competent evidence in the record sustains the court's findings. See Nix v. Nix, 80 N.C.App. 110, 112, 341 S.E.2d 116, 118 (1986).

A. The Personal Property

N.C.Gen.Stat.Sec. 50-20(b) (1987) defines marital and separate property. The former is, in part, "all real and personal property acquired by either spouse or both spouses during the course of the marriage." N.C.Gen.Stat.Sec. 50-20(b)(1). Separate property is, partly, "all real and personal property acquired by a spouse by bequest, devise, descent, or gift during the course of the marriage." N.C.Gen.Stat.Sec. 50-20(b)(2).

The findings of the trial judge as to the character of the Taylors' personal property are culled from Helen Taylor's affidavit. The lists of "Wife Property" and "Husband Property" show that the judge accepted the averments of the affidavit and believed Ms. Taylor's testimony. Mr. Taylor had every equal opportunity to present his case for the judge's consideration. Mr. Taylor submitted a counter affidavit and cross-examined Ms. Taylor at the hearing. The core of Mr. Taylor's argument is that insufficient weight was accorded his evidence by the trial judge. However, "[t]he mere existence of conflicting evidence ... [does] not justify reversal." Lawing v. Lawing, 81 N.C.App. 159, 163, 344 S.E.2d 100, 104 (1986) (citation omitted).

In Lawing, the defendant husband assigned error to the trial judge's valuation of a ring. Both the husband and wife submitted affidavits delineating what they claimed to be the marital personalty, and each assigned value to that property. The plaintiff wife valued the ring at $5,000 while the husband estimated it to be worth $750. No other evidence was proferred concerning the ring's value. The judge valued the ring at $5,000. We said that "under the any competent evidence standard, [the wife's] affidavit clearly sufficed to support the trial court's finding as to the ring's value." Id. ...