Willis v. Willis

Decision Date04 August 1987
Docket NumberNo. 8626DC1069,8626DC1069
Citation358 S.E.2d 571,86 N.C.App. 546
CourtNorth Carolina Court of Appeals
PartiesSam WILLIS v. Sarah WILLIS.

Paul J. Williams, Charlotte, for plaintiff-appellee.

R. Lee Myers, Myers, Hulse & Brown, Charlotte, for defendant-appellant.

BECTON, Judge.

In an opinion in the above-styled matter filed 19 May 1987, this Court addressed the two issues presented and "[a]ffirmed in part, reversed in part, and remanded" this case to the trial court. We affirmed on one issue, holding that the trial court's error, in not valuing all of the marital property as of the date of separation, was not prejudicial. We reversed on the other issue, holding that the trial court erred in concluding that the Claremont Road property was marital property and in finding that it had actively appreciated in the amount of $9,990. We now conclude, based on the defendant-appellant's 24 June 1987 Petition to Rehear and a review of the Record on Appeal that the trial court's error, in not valuing all of the marital property as of the date of separation, was prejudicial and that the entire case should be reversed and remanded. The original opinion filed in this case, Willis v. Willis, 85 N.C.App. 708, 355 S.E.2d 828 (1987), is hereby superseded by this opinion.

I

Defendant, Sarah Willis, appeals from an equitable distribution judgment entered pursuant to N.C. Gen.Stat. Sec. 50-20 (1984). The trial judge concluded that the property should be divided equally. Plaintiff, Mr. Willis, was awarded property having a total value of $16,946.38, and Mrs. Willis received property valued at $18,331.38. Additionally, Mrs. Willis was ordered to pay Mr. Willis $1,385 to compensate for the difference between the values of their respective distributive awards. Mrs. Willis contends that the trial judge erred in his valuation and classification of some of the property. We agree and remand for further proceedings consistent with this opinion.

II

Plaintiff, Sam Willis, filed his Complaint on 28 March 1985, seeking divorce from bed and board, alimony, pendente lite and permanent, and an equitable distribution of the marital property. Mrs. Willis filed an Answer and Counterclaim seeking the same relief for herself. The following facts are not in dispute.

Mr. and Mrs. Willis were married in August 1981. Before their marriage, in December 1979, Mr. Willis sold Mrs. Willis a house and lot on Claremont Road. During three years of marriage the Willises lived at the Claremont Road house, and Mr. Willis made all of the mortgage payments which amounted to $9,900.00

Mrs. Willis raises two issues on appeal: (1) whether the trial court erred in concluding that the Claremont Road property was marital and in finding that it had actively appreciated in the amount of $9,990; and (2) whether the trial court failed to evaluate all of the marital property as of the date of separation and therefore failed to equitably distribute the marital property. We address these in order.

III

Mrs. Willis first argues that the Claremont Road property is her separate property because she purchased it before the marriage and it has remained in her name only. Mrs. Willis's reliance on the inception of title to determine whether the property should have been classified as marital or separate is misguided. This Court recognized in Wade v. Wade, 72 N.C.App. 372, 380, 325 S.E.2d 260, 268-69 (1985) that "acquisition is an ongoing process of making payment for property or contributing to the marital estate rather than being fixed on the date that legal title to property is obtained." The approach adopted by our courts is commonly known as the "source of funds" approach. See generally Sharp, "The Partnership Ideal: The Development of Equitable Distribution in North Carolina," 65 N.C.L. Rev. 195 (1987). Its objective is to ensure that "both the separate and marital estates receive a proportionate and fair return on its investment." Wade at 382, 325 S.E.2d at 269. See also Lawrence v. Lawrence, 75 N.C.App. 592, 331 S.E.2d 186 (1985). When acquisition is ongoing, the property may have a dual classification. In the instant case, the trial judge applied a dual classification to the Claremont Road property, finding that it had a separate property value of $8,410 and a marital property value of $9,900.

Although the evidence supports the trial judge's dual classification of the property, in that the property was acquired in part by the separate estate and in part by the marital estate, we must still determine whether the trial judge erred in determining the proportions invested by the separate and marital estates. The sole factual finding regarding the Claremont Road property's increase in value during the marriage was that the property...

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11 cases
  • Smith v. Smith
    • United States
    • North Carolina Court of Appeals
    • August 17, 1993
    ...]." N.C.Gen.Stat. § 50-20 (Cum.Supp.1992). In so doing, the court must conduct a three-step analysis. Willis v. Willis, 86 N.C.App. 546, 358 S.E.2d 571 (1987). First, the court must identify and classify all property as marital or separate based upon the evidence presented regarding the nat......
  • Whiting v. Whiting
    • United States
    • West Virginia Supreme Court
    • July 17, 1990
    ...v. Rothman, 65 N.J. 219, 320 A.2d 496 (1974); Willis v. Willis, 85 N.C.App. 708, 355 S.E.2d 828, rev'd on other grounds, 86 N.C.App. 546, 358 S.E.2d 571 (1987); Little v. Little, 74 N.C.App. 12, 327 S.E.2d 283 (1985); Smoot v. Smoot, 233 Va. 435, 357 S.E.2d 728 (1987). See generally 27B C.J......
  • Jessee v. Jessee
    • United States
    • North Carolina Court of Appeals
    • June 7, 2011
    ...between the parties.” Estate of Nelson v. Nelson, 179 N.C.App. 166, 168, 633 S.E.2d 124, 126–27 (2006) (citing Willis v. Willis, 86 N.C.App. 546, 550, 358 S.E.2d 571, 573 (1987)), aff'd, 361 N.C. 346, 643 S.E.2d 587 (2007). As part of this process, “[d]ebt[s], as well as assets, must be cla......
  • Glaspy v. Glaspy
    • United States
    • North Carolina Court of Appeals
    • May 15, 2001
    ...items, the trial court cannot be said to have divided the property equitably. See N.C. Gen. Stat. § 50-20(c); Willis v. Willis, 86 N.C.App. 546, 358 S.E.2d 571 (1987). A failure to divide the property equitably would clearly prejudice defendant. In the instant case, the trial court failed t......
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1 books & journal articles
  • Determining the nonmarital portion of retirement benefits and other property.
    • United States
    • Florida Bar Journal Vol. 81 No. 2, February 2007
    • February 1, 2007
    ...about 75 percent, not 93 percent as in Landay. (14) Brandenberg v. Brandenberg, 617 S.W. 2d 871 (Ky. Ct. App. 1981); Willis v. Willis, 358 S.E. 2d 571 (N.C. 1987; In re Herr, 705 S.W. 2d 619 (Mo. Ct. App. 1986)); Thomas v. Thomas, 377 S.E. 2d 666 (Ga. (15) While Straley v. Frank, 612 So. 2d......

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