1. Divorce--equitable distribution--unreasonable delay--sanctions--discretion of
court--appellate review
Whether to impose sanctions and which sanctions to impose under N.C.G.S. § 50-21(e)
for unreasonable delay or attempted delay of an equitable distribution proceeding are decisions
vested in the trial court and reviewable on appeal for abuse of discretion. In applying this
standard, the appellate court will uphold a trial court's order of sanctions unless it is manifestly
unsupported by reason.
2. Divorce--equitable distribution--unreasonable delay--sanctions--attorney fees
The trial court did not abuse its discretion in ordering defendant wife to pay $1,500 of
plaintiff husband's attorney fees in an equitable distribution proceeding as a sanction for delays
and attempts to delay which were prejudicial to the plaintiff based upon competent evidence
of additional attorney fees incurred because defendant and her counsel failed to attend hearings.
3. Divorce--equitable distribution--request for unequal distribution--findings of
supported distributional factors
The trial court in an equitable distribution proceeding should have made specific
findings of fact as to each distributional factor upon which evidence was presented since
plaintiff husband requested an unequal distribution; however, defendant wife was not
prejudiced by the court's failure to do so where she asked for, and received, an equal
distribution of the marital property.
4. Divorce--equitable distribution--classification and valuation--conclusiveness on
appeal
The trial court's classification and valuation of jewelry in an equitable distribution
proceeding were conclusive on appeal where there was evidence to support them. Appeal by defendant from judgment entered 22 September
1997 by Judge E. J. Harviel in Alamance County District Court.
Heard in the Court of Appeals 6 January 1999.
Frederick J. Sternberg, for plaintiff-appellee.
John W. Lunsford, for defendant-appellant.
LEWIS, Judge.
Plaintiff and defendant were divorced by judgment dated 10
June 1996. On 22 September 1997, Judge E. J. Harviel entered an
equitable distribution judgment, and defendant assigns and
argues three errors from the judgment. We affirm the trial
court's judgment.
Defendant first assigns error to the trial court's order of
attorney fees to the plaintiff. Plaintiff moved for sanctions
under N.C. Gen. Stat. § 50-21(e) on 11 March 1997. By order
dated 24 March 1997, Judge Spencer Ennis awarded plaintiff
attorney fees pursuant to N.C. Gen. Stat. § 50-21(e)(1997),
which provides in pertinent part:
Upon motion of either party or upon the court's own
initiative, the court shall impose an appropriate
sanction on a party when the court finds that:
(1) The party has willfully obstructed or
unreasonably delayed, or has attempted to
obstruct or unreasonably delay, discovery
proceedings, including failure to makediscovery pursuant to G.S. 1A-1, Rule 37, or
has willfully obstructed or unreasonably
delayed or attempted to obstruct or
unreasonably delay any pending equitable
distribution proceeding, and
(2) The willful obstruction or unreasonable
delay of the proceedings is or would be
prejudicial to the interests of the opposing
party.
. . . .
The sanction may include an order to pay the other
party the amount of the reasonable expenses and
damages incurred because of the . . . delay, including
a reasonable attorneys' fee . . . .
The court reserved its ruling on the amount of sanctions and
ordered plaintiff to submit an affidavit of additional
"attorney's fees incurred by the Plaintiff as a result of the
Defendant's willful obstruction and unreasonable delay" or
attempt thereof. Plaintiff's attorney submitted an affidavit
which included a record of the total attorney fees incurred in
the case as well as a list of the $2404.80 in fees allegedly
resulting from the delay.
In the equitable distribution judgment, Judge Harviel found
as a fact that plaintiff was entitled to partial attorney's fees
as a sanction for willful delay or attempted delay that
prejudiced her. Judge Harviel ordered defendant to pay
plaintiff "$1,500.00 as a partial allowance on attorney's fees
pursuant to G.S. 50-21(e) . . . . " Defendant contends firstthat this award is inexcess of what plaintiff should have been awarded as delay-
related fees, and second that the court cannot award fees because
the judge failed to find any prejudice under N.C. Gen. Stat. §
50-21(e)(2) to plaintiff resulting from such delays. We address
these arguments in the logical rather than presented order;
first, whether sanctions were properly imposed, and second
whether the amount was excessive.
Generally, a trial judge has discretion to determine the
propriety and select the method of sanctions. See Bumgarner v.
Reneau, 332 N.C. 624, 630, 422 S.E.2d 686, 690 (1992) (affirming
that sanctions under Rule 37 for discovery violations are within
the sound discretion of the trial court); Goss v. Battle, 111
N.C. App. 173, 177, 432 S.E.2d 156, 159 (1993) (stating that the
determination of what sanction, if any, to impose under Rule
41(d) and N.C. Gen. Stat. 1-109 lies within the sound discretion
of the trial court). An award of sanctions for a discovery
violation under Rule 37 "will not be overturned on appeal absent
an abuse of discretion," Graham v. Rogers, 121 N.C. App. 460,
465, 466 S.E.2d 290, 294 (1996). Rule 11 sanctions are slightly
different in that imposition of sanctions is reviewable de novo,
but the choice of sanction is reviewable under an abuse of
discretion standard. See Turner v. Duke Univ., 325 N.C. 152,
165, 381 S.E.2d 706, 714 (1989); Page v. Roscoe, LLC, 128 N.C. App. 678, 680, 497 S.E.2d 422, 424 (1998).
[1]We have not previously addressed the standard of review
for sanctions imposed under section 50-21(e). The abuse of
discretion standard is applied to the imposition and selection of
sanctions under Rule 37. See Bumgarner, 332 N.C. at 631, 422
S.E.2d at 690; Graham, 121 N.C. App. at 465, 466 S.E.2d at 294.
Section 50-21(e)(1) includes Rule 37 violations as sanctionable
conduct. We hold, therefore, that whether to impose sanctions
and which sanctions to impose under G.S. § 50-21(e) are
decisions vested in the trial court and reviewable on appeal for
abuse of discretion. In applying an abuse of discretion
standard, this Court will uphold a trial court's order of
sanctions under section 50-21(e) unless it is "manifestly
unsupported by reason." White v. White, 312 N.C. 770, 777, 324
S.E.2d 829, 833 (1985).
[2]Among the trial court's findings of fact in this case
was:
17. That the Plaintiff shall be entitled to
a partial allowance on his Attorney's Fees
from the Defendant pursuant to the Order of
the Court dated March 24, 1997 pursuant to
G.S. 50-21(e) of the North Carolina General
Statutes as sanctions for the Defendant's
wilful [sic] obstruction and unreasonable
delay or attempt to obstruct or unreasonably
delay discovery proceedings and any equitable
distribution proceedings which were
prejudicial to the Plaintiff; that the sum of $1,500.00 is a reasonable sum to be assessed
herein upon review of the itemization of time
expended herein by the Attorney for the
Plaintiff.
This finding of fact indicates that the trial judge found delays
and attempts to delay "which were prejudicial to the Plaintiff."
Competent, record evidence of additional attorney fees incurred
because defendant and her counsel failed to attend hearings
supports this fact. Finding of fact #17 satisfies the
requirement of section 50-21(e)(2). The amount of fees awarded
is reasonable on this record, and we find no abuse of discretion
in either the imposition or the amount of the sanction.
Defendant's assignment of error is overruled.
[3]Defendant next contends that the trial court should have
made specific findings regarding each of the twelve section 50-
20(c) factors since plaintiff requested an unequal distribution.
See N.C. Gen. Stat. § 50-20(c) (1997). Defendant personally
signed the parties' pre-trial order which by its own terms
"stipulated" that "the defendant contends that an equal
distribution of marital property would be equitable." Plaintiff,
however, listed several factors and presented evidence in support
of an unequal distribution. The trial court made a finding of
fact that after considering the section 50-20(c) evidence, an
equal distribution of marital property would be equitable. Defendant is correct that the trial court should have made
specific findings of fact as to each factor upon which evidence
was presented. See N.C. Gen. Stat. § 50-20(j) (1997);
Armstrong v. Armstrong, 322 N.C. 396, 403, 368 S.E.2d 595, 599
(1988). As in Chandler v. Chandler, 108 N.C. App. 66, 73, 422
S.E.2d 587, 592 (1992), the "court made insufficient findings to
show that it considered the evidence that was presented under the
distributional factors of N.C.G.S. § 50-20(c)." However,
defendant makes no argument, showing, or claim that she was
prejudiced in any way by this omission. "[T]o obtain relief on
appeal, an appellant must not only show error, but that appellant
must also show that the error was material and prejudicial . . .
." Starco, Inc. v. AMG Bonding and Ins. Services, Inc., 124 N.C.
App. 332, 335, 477 S.E.2d 211, 214 (1996). See N.C. Gen. Stat. §
1A-1, Rule 61 (1990). Defendant asked for, and received, an
equal distribution of marital property. As such, her assignment
of error is overruled.
[4]Finally, defendant contends the trial court committed
reversible error in classification and valuation of items of
jewelry. She asserts that although the trial court is in the
best position to determine credibility of witnesses, an appellate
court should be free to change values and classifications of
property. This argument clearly lacks merit. In appellate review of a bench equitable distribution trial, the findings of
fact regarding value are conclusive if there is evidence to
support them, even if there is also evidence supporting a finding
otherwise. See Chandler, 108 N.C. App. at 73, 422 S.E.2d at 592.
The trial court has discretion in distributing marital property,
and "the exercise of that discretion will not be disturbed in the
absence of clear abuse." Lawing v. Lawing, 81 N.C. App. 159,
162, 344 S.E.2d 100, 104 (1986). "This Court is not here to
second-guess values of marital and separate property where there
is evidence to support the trial court's figures." Mishler v.
Mishler, 90 N.C. App. 72, 74, 367 S.E.2d 385, 386, rev. denied,
323 N.C. 174, 373 S.E.2d 111 (1988). Here, there was evidence to
support both the trial court's valuation and classification of
the jewelry. Defendant's final assignment of error is meritless.
Affirmed.
Judges Walker and Timmons-Goodson concur.
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