Wade v. Wade

• Decision Date: 05 February 1985
• Docket Number: No. 8415DC52,8415DC52
• Citation: 325 S.E.2d 260,72 N.C.App. 372
• Parties: Billy Clifton WADE v. Carolyn Dodson WADE.
• Court: North Carolina Court of Appeals

Page 260

325 S.E.2d 260

72 N.C.App. 372

Billy Clifton WADE v. Carolyn Dodson WADE.

No. 8415DC52.

Court of Appeals of North Carolina.

Feb. 5, 1985.

Vernon, Vernon, Wooten, Brown, Andrews, Garrett & Sandifer by Wiley P. Wooten and T. Randall Sandifer, Burlington, for plaintiff.

Hemric, Hemric & Elder, P.A. by H. Clay Hemric, Jr. and Nancy G. Hemric, Burlington, for defendant.

WELLS, Judge.

Plaintiff first contends the trial court erred in dismissing his appeal. We agree. Under the provisions of Rule 6 of the Rules of Appellate Procedure, motions to dismiss an appeal for failure of an appellant to provide appropriate security for cost on appeal must be directed to the appellate court where the appeal is docketed. The trial court was without jurisdiction to enter its order of dismissal; therefore, that order is vacated. The appeal from the judgment of 21 September 1983 is properly before this court.

We turn now to the merits of the appeal. In its judgment of equitable distribution, the trial court found that plaintiff had in his possession marital property with a value in excess of $200,000 including the parties' house and the land under and surrounding the house, "rural land with a value of not less than $10,000, and substantial amounts of personal property including numerous trucks, numerous bulldozers, earth movers, tractors, boats, cars, motorcycles, vans, and large sums of money." The court found that defendant had in her possession a 1977 automobile with a value of $4,000 which was marital property, and that defendant was entitled as a matter of law to an equitable distribution of the marital property. The court also made numerous findings regarding plaintiff's failure to comply with discovery orders, his falsification of documents, and his untruthful testimony. The court concluded from the latter findings that plaintiff's actions constituted fault and that it was within the court's authority to consider such fault in determining an equitable distribution of the marital property.

The court awarded defendant the 1977 automobile, the house and the land underlying it, and awarded the remaining marital property to plaintiff. The approximate total value of the property awarded defendant was $76,400. Since the land on which the house was built was titled solely in plaintiff's name, the court ordered plaintiff to deed to defendant the house and all of the land underlying or contiguous to the house, excluding that part of the land on which plaintiff's business was built, but not to exceed three acres. The court further ordered that plaintiff, in lieu of deeding such property to defendant, could elect to pay defendant the sum of $80,000 in cash or certified funds.

Plaintiff argues the judgment of equitable distribution must be vacated because (1) it is not supported by the evidence and (2) the court did not have authority to order the transfer of his land which he claims was his separate property. Of the five assignments of error upon which these arguments are predicated, however, none address any specific finding of fact and none mention any lack of authority regarding the transfer of separate property. It is fundamental that appellate review depends on specific exceptions and proper assignments of error presented in the record on appeal. Rule 10 of the Rules of Appellate Procedure; Glace v. Throwing Co., 239 N.C. 668, 80 S.E.2d 759 (1954). The assignment of error must clearly disclose the question presented. Lewis v. Parker, 268 N.C. 436, 150 S.E.2d 729 (1966). A single assignment generally challenging the sufficiency of the evidence to support numerous findings of fact, as here, is broadside and ineffective. Lancaster v. Smith, 13 N.C.App. 129, 185 S.E.2d 319 (1971). The sufficiency of the evidence is accordingly not before us. Moreover, plaintiff's assignments do not clearly present the question of the authority of the court to award separate property. However, the appeal itself constitutes an exception to the judgment and brings forward any error of law apparent on its face.

After carefully examining the judgment, we conclude that it does not comply with the standards for orders of equitable distribution we established in Alexander v. Alexander, 68 N.C.App. 548, 315 S.E.2d 772 (1984); therefore, it must be vacated and the cause remanded for entry of a proper judgment. The court did not identify with sufficient detail the property which it determined was marital property. The court specifically identified the 1977 automobile and the house as marital property, however, the remaining marital property was referred to in very general terms. The court ruled that plaintiff's misconduct made a detailed listing of the marital property difficult and that plaintiff bore responsibility for the lack of specificity in the judgment. Despite the difficulty of the task, the court was required to identify the marital property with sufficient detail to enable an appellate court to review the decision and test the correctness of the judgment. See Quick v. Quick, 305 N.C. 446, 290 S.E.2d 653 (1982). The fact that there is evidence in the record from which sufficient findings could be made does not excuse the error. Id.

In determining what distribution of the property is equitable, the court must use the net value of the property rather than its fair market value as used by the court here. See N.C.Gen.Stat. § 50-20(c) (Cum.Supp.1983); Alexander v. Alexander, supra. G.S. § 50-20(c) sets forth a presumption of equal division which requires that the marital property be equally divided between the parties in the absence of some reason(s) compelling a contrary result. Id. In the present case, the trial court distributed the property unequally giving defendant less than an equal share but failed to state in the judgment the reasons justifying the unequal division. Furthermore, based on the record before us, it is not clear that an unequal division in favor of plaintiff was warranted. On remand, if the court concludes that an equal division is not equitable, it must clearly set forth findings of fact based on the evidence which support its conclusion. Id.

In making its determination, the court must consider the factors listed in G.S. § 50-20(c) and set forth findings of fact in its judgment reflecting its consideration of the relevant factors. The court may not, as it attempted to, punish plaintiff by considering his misconduct during litigation as a factor under G.S. § 50-20(c)(12). See Hinton v. Hinton, 70 N.C.App. 665, 321 S.E.2d 161 (1984). ¹

We next address whether the court's award of the house and subjacent land to defendant constitutes error of law. The court determined that the house was marital property and was a separate asset from the realty on which it was built and not just an improvement to realty. The evidence clearly shows that plaintiff owned the underlying land prior to the marriage and that it is titled solely in his name. Nevertheless, the court found that plaintiff had in his possession as marital, property subject to equitable distribution, the house and the land under and surrounding the house.

We first consider whether the court was correct in finding that the house was a separate asset from the land on which it was built. Property law generally recognizes two classes of property, real and personal property. See N.C.Gen.Stat. § 12-3 (1976); Black's Law Dictionary 1095 (5th ed. 1979). A house, once affixed to the land underneath it, typically becomes part of the realty to which it is affixed. Ingold v. Assurance Co., 230 N.C. 142, 52 S.E.2d 366 (1949). Though this rule is subject to the exception that the parties may provide to the contrary by contract, express or implied, the burden of proof is on the party claiming the house is personal property to show that it retained that character. Id. There is no evidence of any such agreement in this case. Therefore, we must view the house and the land as one asset, that asset being real property.

Next we must determine whether this asset is marital or separate property as defined in G.S. § 50-20(b). That statute defines marital and separate property as follows, in relevant part:

(1) "Marital property" means all real and personal property acquired by either spouse or both spouses during the course of the marriage and before the date of the separation of the parties, and presently owned, except property determined to be separate property in accordance with subdivision (2) of this section ...

(2) "Separate property" means all real and personal property acquired by a spouse before marriage or acquired by a spouse by bequest, devise, descent, or gift during the course of the marriage. However, property acquired by gift from the other spouse during the course of the marriage shall be considered separate property only if such an intention is stated in the conveyance. Property acquired in exchange for separate property shall remain separate property regardless of whether the title is in the name of the husband or wife or both and shall not be considered to be marital property unless a contrary intention is expressly stated in the conveyance. The increase in value of separate property and the income derived from separate property shall be considered separate property ...

Under the statute, only that property which is marital in character is subject to distribution. See G.S. § 50-20(c).

Plaintiff attempted to show at trial that the house and land were his separate property because he acquired the unimproved land prior to the marriage and he contributed some $40,000 of his separate property to the cost of the house whereas defendant contributed only about $5,000. Though it is clear plaintiff acquired the unimproved land prior to the marriage, the trial court found plaintiff's testimony regarding his contributions to the cost of the house untruthful and tainted by forgery. The court found that defendant contributed substantial amounts of money to the...