Warren v. Warren

• Decision Date: 17 January 2006
• Docket Number: No. COA04-1555.,COA04-1555.
• Parties: Nancy WARREN, Plaintiff, v. Bobby Carol WARREN, Defendant.
• Court: North Carolina Supreme Court

623 S.E.2d 800

Nancy WARREN, Plaintiff, v. Bobby Carol WARREN, Defendant.

No. COA04-1555.

Court of Appeals of North Carolina.

January 17, 2006.

Appeal by defendant from judgment entered 22 April 2004 by Judge Marvin P. Pope, Jr. in Buncombe County District Court. Heard in the Court of Appeals 20 September 2005.

Cecilia Johnson, Asheville, for plaintiff-appellee.

Mary Elizabeth Arrowood, Asheville, for defendant-appellant.

GEER, Judge.

Defendant Bobby Carol Warren appeals from the trial court's equitable distribution judgment providing for an equal division of marital property between defendant and plaintiff Nancy Warren. On appeal, Mr. Warren primarily argues that the trial court erred by failing to make findings of fact (1) as to why there should not be an in-kind distribution of certain real property, and (2) regarding evidence he offered in support of his request for an unequal distribution. We agree and remand for further findings of fact in accordance with this opinion.

Facts

The parties were married in 1984, separated in 2001, and subsequently divorced. Three children were born during the marriage. At the time of the order currently on appeal, the oldest child, born in 1984, was emancipated, but the couple's two minor children, born in 1986 and 1991, resided with Mr. Warren.

In September 2001, Ms. Warren filed a complaint in Buncombe County District Court seeking child custody and support, equitable distribution, post-separation support and alimony, and attorneys' fees. Mr. Warren filed an answer and counterclaim in November 2001, denying the relevant allegations and seeking, among other things, a custody determination and an unequal division of the couple's marital estate in his favor.

In its order entered 22 April 2004, the trial court found that the couple had $151,980.21 in marital assets, including: a 16.86 acre parcel of real property valued at $64,000.00; four vehicles, collectively valued at $15,040.00; bank accounts totaling $27,499.00; retirement accounts totaling $40,591.21; and $4,850.00 of miscellaneous personal property. The trial court also found that the couple's marital debt totaled $26,588.96.

To Mr. Warren, the trial court awarded the entire 16.86 acre tract, three of the vehicles, two of the bank accounts, one retirement account, and approximately half of the couple's personal property. The court valued these assets at $90,854.00. The court also allocated $21,720.96 of the marital debt to Mr. Warren. Accordingly, Mr. Warren was awarded a net share of the couple's marital estate amounting to $69,133.04. The remaining marital property, totaling $33,356.00, was awarded to Ms. Warren. The trial court allocated Ms. Warren $4,868.00 of the marital debt, resulting in her receiving a net share of the marital estate of $28,488.00.

Because the trial court found that an equal division of the property between Mr. Warren and Ms. Warren would be equitable, the court directed Mr. Warren to pay Ms. Warren "one-half of the economic difference between the marital property received by [Mr. Warren] and [Ms. Warren]" equal to $20,322.52. To effectuate payment, the court ordered Mr. Warren to obtain a commercial loan within three months and pay Ms. Warren in one lump sum or, alternatively, to pay Ms. Warren $10,000.00 within three months and then make monthly payments on the balance of $215.00 per month for five years or until the balance was paid in full. Mr. Warren has timely appealed to this Court.

Discussion

Before addressing the issues raised by Mr. Warren's appeal, we first acknowledge that Ms. Warren has included a motion to dismiss this appeal in the opening pages of her appellee brief. Such motions may not be raised in a brief, but rather must be made in accordance with N.C.R.App. P. 37. Smithers v. Tru-Pak Moving Sys., Inc., 121 N.C.App. 542, 545, 468 S.E.2d 410, 412 ("A motion to dismiss an appeal must be filed in accord with Appellate Rule 37, not raised for the first time in the brief...."), disc. review denied, 343 N.C. 514, 472 S.E.2d 20 (1996). This motion is not, therefore, properly before this Court and we decline to address it. In any event, we note that the motion is based in part on Mr. Warren's failure to file the exhibits of both parties, despite the stipulation in the record on appeal that he would do so. The exhibits, however, have proven immaterial to the resolution of this appeal.

I

On appeal, Mr. Warren contends that the trial court erred by concluding that the entire 16.86 acre parcel was marital property. Mr. Warren had initially inherited an interest in the parcel after the death of his father, who left a half-interest in the land to each of his sons. Ms. Warren's name was not included on the deed that resulted from this inheritance. Subsequently, Mr. Warren and his brother deeded the entire parcel to both Mr. Warren and Ms. Warren.

When previously separate real property becomes titled by the entireties, the law presumes the transfer to be a gift to the marital estate. McLean v. McLean, 323 N.C. 543, 551-52, 374 S.E.2d 376, 381-82 (1988). See also 3 Suzanne Reynolds, Lee's North Carolina Family Law § 12.33, at 12-100 (5th ed. 2002) ("The [marital gift] presumption applies in all instances when the spouses cause title to real property, or an interest in real property, to be in the entireties. The presumption applies when one spouse conveys to the other spouse in the entireties and when, because of a purchase, third parties convey to the spouses in the entireties.").¹ This presumption may be rebutted only by clear, cogent, and convincing evidence that there was no donative intent to make a gift to the marriage on the part of the alleged donor spouse. McLean, 323 N.C. at 551-52, 374 S.E.2d at 381-82.

It is uncontested that (1) after Mr. Warren inherited the parcel with his brother, Mr. Warren's interest was his separate property, and (2) when the entire parcel was conveyed to Mr. Warren and Ms. Warren, title vested in both as tenants by the entirety. Further, the deed conveying the parcel to both Mr. Warren and Ms. Warren does not indicate any intention that the parcel not become marital property. Thus, the burden was on Mr. Warren to provide clear, cogent, and convincing evidence that he did not intend to make his interest in the parcel a gift to the marital estate.

In support of his argument, Mr. Warren points to Ms. Warren's testimony, in which she stated that she did not believe Mr. Warren had ever given her an interest in the land. It is, however, the donor's, not the donee's, intent that is relevant. Id. Ms. Warren's understanding of the transaction is, therefore, immaterial.

Mr. Warren also points to his own testimony that he did not instruct the attorney performing the conveyance to transfer the property by the entireties and to his offer of proof that he "had no intent to make a gift to [plaintiff] of my inheritance whatsoever."² Our courts have held, however, that the donor's testimony alone that he lacked the requisite intent is insufficient to rebut the marital gift presumption. See Thompson v. Thompson, 93 N.C.App. 229, 232, 377 S.E.2d 767, 768-69 (1989) (defendant's testimony alone "certainly" did not rise to the level of clear, cogent, and convincing evidence). See also 3 Reynolds, supra, § 12.33, at 12-102 ("Often the only evidence of a lack of donative intent is the donor's testimony. The appellate cases of North Carolina have uniformly held that such evidence alone will not satisfy the burden of rebutting the presumption by clear, cogent, and convincing evidence."). Accordingly, because the only relevant evidence Mr. Warren offered to rebut the presumption was his own testimony, the trial court did not err in finding that the entire parcel was marital property.

Mr. Warren argues alternatively that, even assuming the 16.86 acre parcel was marital property, the trial court erred by failing either (1) to order an in-kind distribution of the property or (2) to make findings of fact justifying a distributive award rather than an in-kind distribution. In North Carolina, "it shall be presumed in every action that an in-kind distribution of marital or divisible property is equitable." N.C. Gen.Stat. § 50-20(e) (2003). This presumption "may be rebutted by the greater weight of the evidence, or by evidence that the property is a closely held business entity or is otherwise not susceptible of division in-kind." Id. This Court has recently held that "in equitable distribution cases, if the trial court determines that the presumption of an in-kind distribution has been rebutted, it must make findings of fact and conclusions of law in support of that determination." Urciolo v. Urciolo, 166 N.C.App. 504, 507, 601 S.E.2d 905, 908 (2004).

In this case, although the trial court did not order an in-kind distribution of the parcel, it made no findings of fact or conclusions of law regarding the presumption and whether it was rebutted. Plaintiff responds that the record contains evidence sufficient to support a finding that the presumption of an in-kind distribution had been rebutted. "It is not enough that there may be evidence in the record sufficient to support findings which could have been made. The trial court must itself determine what pertinent facts are actually established by the evidence before it...." Coble v. Coble, 300 N.C. 708, 712, 268 S.E.2d 185, 189 (1980). We must, therefore, "reverse the trial court on this assignment of error, and remand this matter for additional findings of fact on whether the presumption of an in-kind distribution has been rebutted...." Urciolo, 166 N.C.App. at 507, 601 S.E.2d at 908.

II

Mr. Warren next contends that the trial court erred in finding that a 1991 Ford Tempo was the property of the oldest child. The trial court made the following finding of fact with respect to the Ford Tempo: "That the 1991 Ford Tempo automobile is the separate property of the oldest child and is not subject to equitable distribution...