Young v. Young

• Decision Date: 18 May 1999
• Docket Number: No. COA98-779.,COA98-779.
• Citation: 133 NC App. 332,515 S.E.2d 478
• Parties: David Nelson YOUNG, Plaintiff, v. Cynthia Tharp YOUNG, Defendant.
• Court: North Carolina Court of Appeals

515 S.E.2d 478

133 NC App. 332

David Nelson YOUNG, Plaintiff, v. Cynthia Tharp YOUNG, Defendant.

No. COA98-779.

Court of Appeals of North Carolina.

May 18, 1999.

Ralph S. Pennington, Wilmington, for plaintiff-appellant.

Johnson & Lambeth by Carter T. Lambeth, Wilmington, for defendant-appellee.

GREENE, Judge.

David Nelson Young (Plaintiff) appeals from the equitable distribution judgment of the trial court.

Plaintiff and Cynthia Tharp Young (Defendant) married 4 September 1987, separated 15 May 1995, and divorced 26 July 1996. The parties' record on appeal contains a form titled "SCHEDULE A." This form, promulgated pursuant to local rules of the Fifth Judicial District (the district in which this case was tried), is a chart with columns for listing: the parties' property; each party's respective contentions as to whether the listed property is marital, separate, or mixed; and each party's respective contentions as to the value of the listed property on the date of separation and at trial. Also included in the record is a form, likewise promulgated pursuant to local rules, titled "SCHEDULE D." This form is a chart with columns for listing: the parties' debts; each party's respective contentions as to whether the debt is marital, separate, or mixed; and each party's contentions as to the balance of the debt on the date of separation and at trial. Schedule D lists, among other debts, a "Colonial National Bank Credit Card," an "MBNA Mastercard," a "Chevy Chase Mastercard," and a "VISA." Defendant contended, on this Schedule D, that these credit cards constitute marital debts. Schedule D does not contain any objection, amendment, or supplement by Plaintiff to Defendant's classification of these credit card debts.

A hearing was held on the disputed issues on 18 August 1997. The transcript reveals that the parties and the trial court relied on Schedule A and Schedule D throughout the proceedings and addressed the disputed items listed therein. The trial court subsequently entered an equitable distribution judgment in which it found the "Colonial National Bank Card," the "MBNA MasterCard," the "Chevy Chase MasterCard," and the "Visa Card" to be marital debts. The trial court "conclude[d] that an equal division of marital property is not equitable and an unequal division of property is equitable," divided the marital assets and debts accordingly, and ordered Defendant to make a distributive award in the amount of $17,500.00 to Plaintiff.

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The issue is whether Plaintiff made stipulations which relieved Defendant of her burden of proving certain credit card debts were marital.

The General Assembly has authorized our Supreme Court to promulgate rules of practice and procedure for the superior and district courts. N.C.G.S. § 7A-34 (1995). Pursuant to this authority, our Supreme Court requires the Senior Resident Judge and Chief District Judge in each judicial district to "take appropriate actions [such as the promulgation of local rules] to insure prompt disposition of any pending motions or other matters necessary to move the cases toward a conclusion." Gen. R. Pract. Super. and Dist. Ct. 2(d), 1999 Ann. R. N.C. 2; see also N.C.G.S. § 7A-146 (1995) (non-exclusive listing of the powers and duties of the Chief District Judge). "Wide discretion should be afforded in [the] application [of local rules] so long as a proper regard is given to their purpose." Lomax v. Shaw, 101 N.C.App. 560, 563, 400 S.E.2d 97, 98 (1991) (applying local superior court rules) (quoting Forman & Zuckerman v. Schupak, 38 N.C.App. 17, 21, 247 S.E.2d 266, 269 (1978)); McDonald v. Taylor, 106 N.C.App. 18, 21, 415 S.E.2d 81, 83 (1992) (applying local district court rules).

Local rules for the New Hanover County District Court require adherence to certain "mandatory discovery procedures" upon a request by any party for equitable distribution. Fifth Judicial District, New Hanover County District Court Local Rules, Rule 6.¹ These mandatory discovery procedures include:

The party requesting an equitable distribution of property (hereafter referred to as the initiating party) shall, within 30 days of the filing of the request, ... deliver to the opposing party a comprehensive listing of the property, both separate and marital, known by the initiating party to exist as of the date of separation. This listing need contain no values, but must state whether it is contended that the property is separate or marital or mixed. The contention as to how the property should be classified is not binding upon the [initiating] party and does not constitute an admission.

Within 60 days following receipt of the Property List from the initiating party, the responding party shall, using the list received, complete and serve upon the initiating party a single listing which adopts, amends, or supplements the listing received from the initiating party. This listing, again, need contain no values, but must reflect a non-binding contention as to whether each item is separate, marital or mixed. A failure to [adopt, amend, or supplement the initiating party's listing] shall constitute an admission and an affirmative representation that the list as

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