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**FINAL**
CAROL S. WALL, Plaintiff, v. CARROLL C. WALL, III, Defendant
No. COA99-732
(Filed 17 October 2000)
1. Divorce--equitable distribution--marital home--value
There was no prejudicial error in an equitable distribution
proceeding in the trial court's failure to set out its
calculations regarding the net value of the marital dwelling
where the net value could be made certain from the facts found by
the court.
2. Divorce--equitable distribution--marital home--order to sell
The trial court did not abuse its discretion in an equitable
distribution proceeding by ordering that the marital home be sold
and the proceeds divided between the parties where the court
classified and valued the residence before selling it.
3. Divorce--equitable distribution--pre-1997 action--value of
profit-sharing plan--stipulation
The trial court did not err in an equitable distribution
action in finding the value of a profit-sharing plan as of the
date of separation, but erred by dividing the post-separation
increases between the parties. Defendant is bound by a
stipulation regarding the value of the plan, and amendments
adding the concept of divisible property to the Equitable
Distribution Act are not applicable because this claim was
asserted before 1 October 1997.
4. Divorce--equitable distribution--evidence not considered--
defendant's health
The trial court in an equitable distribution proceeding
should have made findings to indicate that it had considered
defendant's testimony about his health situation, even if the
court rejected the testimony or gave it little weight. Once
evidence as to the parties' health or other matters is presented,
the trial court must consider the evidence and make sufficient
findings.
5. Divorce--equitable distribution--tax consequences--not
considered
No error was found in an equitable distribution action from
the trial court's failure to consider the tax consequences of its
equitable distribution order where defendant did not demonstrate
that evidence of tax consequences was brought to the court's
attention before the close of evidence.
6. Divorce--equitable distribution--pre-1997--debts paid afterseparation
The trial court did not abuse its discretion in a pre-1997
equitable distribution action in its treatment of debts paid by
defendant after separation. Prior to the 1997 amendments, a
trial court had a number of options in dealing with payments on a
debt after the date of separation; here, the court chose to treat
the debt payments as a distributional factor but gave little
weight to that factor.
7. Divorce--equitable distribution--delay between close of
evidence and entry of order--19 months
New evidence and a new equitable distribution order were
required where there was a delay of 19 months from the date of
the trial to the entry of judgment. While there is inevitably
some passage of time between the close of the evidence in an
equitable distribution case and the entry of judgment,
particularly in a lengthy, complicated matter, there was more
than a de minimis delay in this case.
Appeal by defendant from judgment entered 26 June 1998 by
Judge William N. Neely in Randolph County District Court. Heard in
the Court of Appeals 14 August 2000.
Michelle D. Reingold for defendant appellant.
No brief filed for plaintiff.
HORTON, Judge.
Carol S. Wall (plaintiff) and Carroll C. Wall, III
(defendant), were married on 19 December 1971. They separated on
5 May 1988 and were divorced by judgment entered 31 October 1994.
Plaintiff's claim for equitable distribution was heard during
September, October, and November 1996. The trial court took the
matter under advisement and entered a written order on 26 June
1998, purporting to be "nunc pro tunc" 6 January 1998. The trial
court concluded that an equal division would effect an equitable
distribution of the marital property and debt, and defendant
appealed.
Defendant contends that (I) the trial court erred in failingto properly value and distribute the marital home; (II)
the trial
court erred in failing to find a date-of-separation net value for
the husband's profit-sharing plan, and also erred in dividing the
post-separation appreciation of the plan assets. Defendant further
contends (III) that the trial court erred in failing to consider
his health condition as a distributional factor, (IV) failed to
consider the tax consequences of the division to the parties, and
(V) did not give him credit for payments on marital debt. Finally,
(VI) defendant argues that the 19-month delay in entry of the
equitable distribution order deprived him of due process.
I. The Marital Residence
[1]In North Carolina equitable distribution actions, trial
judges are required "to first determine what constitutes marital
property, to then determine the net market value of that property,
and finally, to distribute it based on the equitable goals of the
statute and the specific statutory factors."
Little v. Little, 74
N.C. App. 12, 16, 327 S.E.2d 283, 287 (1985). The trial court is
permitted to distribute only marital property in an equitable
distribution proceeding. N.C. Gen. Stat. § 50-20(c) (1999);
Truesdale v. Truesdale, 89 N.C. App. 445, 448, 366 S.E.2d 512, 514
(1988). The net market value of the marital property is calculated
as of the date of the parties' separation. N.C. Gen. Stat. § 50-20(c); N.C. Gen. Stat. § 50-21(b) (1999).
See also Al
exander v.
Alexander, 68 N.C. App. 548, 551, 315 S.E.2d 772, 775 (1984)
(defining net value as "market value, if any, less the amount of
any encumbrance serving to offset or reduce market value").
Here, the defendant argues that the trial court did not findthe net fair market value of the marital home on the da
te of
separation, as it was required to do. There was considerable
disagreement between the plaintiff and defendant as to valuation,
classification, and distribution of various items of property and
debts. In an effort to define and narrow the issues, the parties
entered into a detailed pretrial order on 14 May 1996. Based on
their extensive pretrial discovery, the parties created fifteen
schedules (identified as A through O) on which they listed all
property, both marital and separate, and attempted to classify and
value the property and debts. The schedules were attached to the
pretrial order and incorporated therein by reference. The pretrial
order was signed by the court, the parties, and their counsel on 14
May 1996.
As to the marital home, identified as the Country Club Drive
residence, the parties were unable to agree as to either its net
value or its distribution. On Schedule D of the pretrial order,
plaintiff contended that the residence had a net value of
$43,106.34 and defendant calculated the net value at $57,106.35.
Both parties requested that they be awarded the marital home in the
distribution of property. The parties also stipulated in the
pretrial order that there were encumbrances on the marital
residence on the date of separation, consisting of a mortgage to
BB&T of $132,136.71 and an equity line of $10,756.95, also to BB&T.
Subsequent to the trial of this case, the parties entered into a
written stipulation on 24 November 1997 that the "current gross
fair market value of the Country Club Drive residence is$221,250.00."
Based on these stipulations and evidence presented at trial,
the trial court found that the residence was valued at $186,000.00
on the date of separation and $221,250.00 on the date of trial.
The trial court provided for disposition of the marital home by
sale, with the proceeds to be used, in part, to pay off the costs
of sale and the encumbrances on the home. The court also found that
the mortgage on the date of separation was $132,136.71 and the
equity line debt on the date of separation was $17,753.20.
Defendant does not question the accuracy of the trial court's
findings, but argues that the trial court did not make an explicit
finding about the net value of the marital home on 5 May 1988, the
date of separation. However, the trial court found a gross fair
market value on the date of separation of $186,000.00, subject to
encumbrances of $132,136.71 and $17,753.20. Subtracting the
encumbrances from the gross value of the home leaves a net fair
market value on the date of separation of $36,110.09. While it
would have been better practice for the trial court to make a
specific finding as to the net fair market value of the dwelling
house on the date of separation, such value can be easily
calculated from its findings.
See Shoe Store Co. v. Wiseman, 174
N.C. 716, 717, 94 S.E. 452, 453 (1917) (applying the maxim "'[t]hat
is certain which can be made certain'" to ascertain the amount due
on notes in a bankruptcy proceeding). Though the net fair market
value of the Walls' residence was not explicitly set out, it can be
made certain from the facts found by the trial court. We hold,therefore, there is no prejudicial error in this case in the
failure of the trial court to set out its calculations with regard
to the net value of the marital dwelling.
[2]Nor do we find error in the trial court's disposition of
the dwelling house. The defendant argues that the trial court must
distribute the home to one of the parties, rather than ordering it
sold. We disagree.
We first note that the trial court is vested with wide
discretion in family law cases, including equitable distribution
cases.
Beightol v. Beightol, 90 N.C. App. 58, 60, 367 S.E.2d 347,
348,
disc. review denied, 323 N.C. 171, 373 S.E.2d 104 (1988)
(citation omitted). Thus, a trial court's ruling "will be upset
only upon a showing that it was so arbitrary that it could not have
been the result of a reasoned decision."
White v. White, 312 N.C.
770, 777, 324 S.E.2d 829, 833 (1985).
While we have never expressly discussed the trial court's
power to order the sale of marital assets as part of an equitable
distribution, our prior decisions have implicitly recognized the
power of the trial court to do so.
See, e.g.,
Dorton v. Dorton, 77
N.C. App. 667, 336 S.E.2d 415 (1985) (trial court did not err in
forbidding either party to receive a commission or broker's fee on
the sale of the marital home after ordering the home sold);
Soares
v. Soares, 86 N.C. App. 369, 357 S.E.2d 418 (1987) (trial court
erred in failing to value the marital home before ordering it
sold); and
Thomas v. Thomas, 102 N.C. App. 127, 401 S.E.2d 367
(1991) (citing
Soares for same proposition). We continue to stressthe importance of following the steps of first classifying, then
valuing and distributing marital property. Each step is a
prerequisite to the performance of the next, and failure to follow
the prescribed order will result in a fatally flawed trial court
disposition. "[O]nly those assets and debts that are
classified as
marital property and
valued are subject to
distribution under the
Equitable Distribution Act (Act) . . . ."
Grasty v. Grasty, 125
N.C. App. 736, 740, 482 S.E.2d 752, 755,
disc. review denied, 346
N.C. 278, 487 S.E.2d 545 (1997) (emphasis added). Here, there was
no dispute over the classification of the marital home as marital
property. Further, as we discussed above, the trial court properly
valued the marital home prior to its distribution. Rather than
distributing the home to one of the parties, the trial court
ordered the parties to sell the property by 13 January 1998 and use
the proceeds to pay off the costs of sale and the encumbrances on
the home; any remaining funds from the sale were to be distributed
to plaintiff-wife, with defendant-husband receiving a credit equal
to one-half of these proceeds. The trial court classified and
valued the Country Club Drive residence before distributing it, and
we find no abuse of discretion in the trial court's order that the
home be sold and proceeds divided between the parties.
II. The Pension Plan
[3]In
Becker v. Becker, 88 N.C. App. 606, 607, 364 S.E.2d
175, 176 (1988), this Court adopted a very restrictive reading of
the Equitable Distribution Act, and held that the marital estate
was "frozen" on the date of separation. Thus, any gains onmarital property after that date were not -- by definition --
marital property, even when the gains represented passive income
such as interest on a bank account.
See N.C. Gen. Stat. § 50-20(b)
(definitions of marital and separate property). Since such
increases were also not classifiable as separate property, the term
"non-marital property" was formulated to describe these types of
gains.
Chandler v. Chandler, 108 N.C. App. 66, 68, 422 S.E.2d 587,
589 (1992). In response to the problem of accounting for post-
separation increases in value during the distribution stage of
equitable distribution, this Court decided to treat such increases
as distributional factors, thereby accounting for their existence
but stopping short of "thawing" the marital estate to allow
additions after the date of separation. In
Truesdale, we
definitively stated that "[t]he post-separation appreciation of
marital property is itself neither marital nor separate property.
Such appreciation must instead be treated as a distributional
factor under Section 50-20(c)(11a) or (12) . . . ."
Truesdale, 89
N.C. App.
at 448, 366 S.E.2d at 514. In
Mishler v. Mishler, 90
N.C. App. 72, 367 S.E.2d 385,
disc. review denied, 323 N.C. 174,
373 S.E.2d 111 (1988), we held that "where there is evidence of
active or passive appreciation of the marital assets after that
date [the date of separation], the court must consider such
appreciation as a factor [in distributing the marital property]
under G.S. 50-20(c)(11a) or (12), respectively."
Id. at 77, 367
S.E.2d at 388 (emphasis added).
Further, we held that it was reversible error for a trialcourt to attempt to divide gains resulting from the increa
se in
value of marital property, ruling that the trial court must instead
consider the gains as a distributional factor, and then make a
division which recognized that factor.
See Becker, 88 N.C. App. at
607-08, 364 S.E.2d at 176-77. Fortunately, this restrictive
reading of the Act was remedied by the passage of the 1997
amendments to the Act, which added the category of divisible
property to deal with changes in marital property values after the
date of separation. 1997 N.C. Sess. Laws ch. 302, §§ 1-3. Here,
however, plaintiff asserted her claim for equitable distribution
prior to 1 October 1997, so that the amendments adding the concept
of "divisible property" to the Act are not applicable to this
claim.
As to the defendant's pension plan, the parties stipulated in
Schedule A of the pretrial order, item II-H, that the "[m]arital
portion of defendant's profit sharing plan (includes post date of
separation growth[)]" had a net value of $245,791.53 on the date of
separation, was in the possession of the defendant, and was to be
distributed to the defendant. On Schedule M of the pretrial order,
in an item numbered "10. III-H," the parties stipulated that the
separate portion of defendant's profit-sharing plan was valued at
$170,674.00 on the date of separation.
In its judgment, the trial court found that:
18. The marital portion of the
defendant's profit-sharing plan (including
post-date of separation growth) was
$245,791.53 at the time of trial. Additional
growth has occurred since trial. The newmarital portion of this plan, including all
growth on the funds in the account as of date
of separation, should be calculated by
accountant Robert Oates and such portion
divided equally between the parties.
The court then decreed that:
8. The marital portion of the defendant's
profit-sharing plan, including growth on the
balance of the account as of the date of
separation, shall be recalculated by Robert
Oates. Plaintiff shall receive one-half of
this amount plus an additional amount as
indicated below.
9. Upon the sale of the Country Club
Drive property, the proceeds shall be
distributed in accordance with Finding of Fact
9.d. The plaintiff shall receive what would
have been the defendant's half of the proceeds
to apply toward the $112,813.21 in property
required to equalize the division of the
marital estate between the parties. The
remainder of the $112,813.21 shall be
transferred to the plaintiff from the
defendant's profit-sharing plan following the
sale of the Country Club Drive residence.
Defendant contends that the trial court erred in its treatment
of the profit-sharing plan in at least two important respects:
first, he contends that the trial court never carried out its
mandate to value all property as of the date of separation, in that
the value used by the trial court included post-separation gains on
the marital portion of the profit-sharing plan. Second, defendant
argues that any post-separation gains following the separation of
the parties would not be subject to division by the trial court but
would be treated as distributional factors in the distribution.
We agree that it would normally be error for the trial court
to fail to value an item of marital property as of the date ofseparation, excluding gains or losses on the property since the
date of separation. Here, however, the parties and their counsel
stipulated to the value of the profit-sharing plan as of the date
of separation. Although that value obviously included some gains
on the plan assets after the date of separation, defendant is bound
by his stipulation, and estopped to question the value used by the
trial court.
Plaintiff and defendant engaged in years of discovery and
negotiation, followed by the execution of a detailed, 38-page
pretrial order. Such an order is designed to narrow the issues,
save trial time and expense, and lead to a just result. The
parties presented evidence in this case for some nine days,
producing a transcript of 1,314 pages. During the entire
proceeding, defendant did not question the accuracy of the
stipulation with regard to the value of his profit-sharing plan on
the date of separation, and the trial court properly relied on that
agreement. Parties are not free to enter into stipulations for the
purposes of trial, then abandon those agreements and chart a
different course when they sail into appellate waters.
Inman v.
Inman, 136 N.C. App. 707, 525 S.E.2d 820,
cert. denied, 351 N.C.
641, 543 S.E.2d 870 (2000). In
Inman, the parties signed a
pretrial order with stipulations as to the classification of
various items of property as marital property, and stipulated that
the marital property be equally divided.
Id. at 713, 525 S.E.2d at
824. The plaintiff later objected when items he believed to be his
separate property were deemed marital by the court; he alsodisagreed with other facts which were the subject of pretrial
stipulations.
Id. We noted in
Inman there was no evidence in the
record showing any attempt to modify the terms of the pretrial
order, nor was there any evidence showing that the stipulations
were not voluntarily agreed upon. Consequently, plaintiff was
bound by his stipulations.
Id. at 716, 525 S.E.2d at 825. The
same is true in the present case. The voluminous record does not
show any involuntary actions by the parties regarding their
stipulations. Absent such evidence, we will deem the parties bound
by their stipulations and will not allow retroactive alterations of
those stipulations. Therefore, based on the stipulation of the
parties, the trial court did not err in finding that the date of
separation net value of the profit-sharing plan was $245,791.53.
As to the division of the growth in the profit-sharing plan
since the date of separation, however, we must agree with
defendant's contention. Under our line of cases beginning with
Truesdale, the trial court may not divide the post-separation
increases between the parties. Therefore, insofar as the judgment
of the trial court attempts to do so, it is erroneous and is
reversed. On remand, the trial court will consider any increase in
value of the husband's profit-sharing plan as a distributional
factor in fashioning a new distribution order.
III. Defendant's Health As A Distributional Factor
[4]Defendant also contends that the trial court erred in
failing to consider his health condition as a distributional
factor. N.C. Gen. Stat. § 50-20(c)(3) provides that the court isto consider the "physical and mental health of both parties.&q
uot;
Where evidence of a distributional factor such as a party's health
is introduced, it is error for the trial court to fail to make
findings of fact with respect to that factor.
Alexander, 68 N.C.
App. at 553, 315 S.E.2d at 776 (failure of trial court to establish
physical health of the parties (among other things) in its findings
of fact rendered the findings deficient).
Once evidence as to the
parties' health or other matters is presented, the trial court must
consider the evidence and "make findings sufficient to address the
statutory factors and support the division ordered."
Armstrong v.
Armstrong, 322 N.C. 396, 405, 368 S.E.2d 595, 600 (1988).
In the case before us, defendant testified at length during
the nine-day trial about his health situation. He stated that he
has chronic bronchitis, chronic sinusitis, ulcerated colitis (an
inflammation of the colon), and back problems. He testified that
these conditions forced him to miss work at times, and required
hospitalization and continual doctor visits. Such testimony
required that the trial court make appropriate findings of fact
regarding the health of the defendant. Even if the trial court did
not find the defendant's testimony to be credible, the court still
should have made findings of fact to indicate that the court had
considered the testimony, but rejected it or gave it little weight.
On remand, the trial judge must consider the testimony defendant
offered relative to the state of his health, and make written
findings of fact based on the credible evidence.
IV. Tax Consequences
[5]Next, defendant argues that the trial court's failure to
consider the tax consequences of its equitable distribution order
was error. The trial court's finding of fact number 12(h) states
"[t]he division ordered herein takes into account the tax
consequences and tax issues raised by the parties, and equalizes
the consequences to the extent possible. No tax consequences
support a deviation from an equal distribution of property."
Although defendant contends there are possible adverse tax
consequences of the distribution which the trial court did not
consider, he does not direct us to any evidence in the voluminous
transcript which relates to the tax consequences he discusses in
his brief. The trial court is not required to consider tax
consequences unless the parties offer evidence about them.
Defendant may not now ascribe error to the trial court's failure to
make such findings without demonstrating that such evidence was
brought to the trial court's attention before the close of
evidence. Defendant has the burden of showing that the tax
consequences of the distribution were not properly considered, and
he has failed to carry that burden. Therefore, this assignment of
error is overruled.
V. Defendant's Payments on Debts
[6]Defendant also contends that the trial court failed to
consider payments he made on the marital home's mortgage debts and
other debts. However, in its finding of fact number 12(n), the
trial court found that [t]he husband has made post-date of separation
payments toward marital debt, joint debt,
taxes, expenses of the parties' children,
including college expenses, and maintenance
and upkeep of the marital property. These
were largely a factor of life style. Credit
for any such payments is inappropriate, except
that he will get credit for principal payment
on certain marital debt by receiving that debt
in the distribution. The husband was the only
party with ability to pay interest on the
parties' debt. There were delays on husband's
part in reaching a resolution of this matter,
and he insisted that there be no settlement
for several years.
We believe that "credit," in the context of the above finding
of fact, means "dollar for dollar" credit, not just credit in a
broader sense. Prior to enactment of the 1997 amendments, a trial
court had a number of options in dealing with payments on debt
after the date of separation.
Rawls v. Rawls, 94 N.C. App. 670,
676, 381 S.E.2d 179, 182 (1989) (stating that the manner in which
the court distributes or apportions marital debts is a matter
committed to the discretion of the trial court). The court could
give the payor an "adjustive credit" or make other appropriate
adjustment, or could simply treat the payments as a distributive
factor.
Truesdale, 89 N.C. App. at 450, 366 S.E.2d at 516
(stating
that trial court may award adjustive credits as part of an overall
marital property distribution);
Hendricks v. Hendricks, 96 N.C.
App. 462, 386 S.E.2d 84 (1989),
cert. denied, 326 N.C. 264, 389
S.E.2d 113 (1990) (properly crediting a spouse for post-separation
payments
made);
Haywood v. Haywood, 106 N.C. App. 91, 415 S.E.2d
565 (1992),
rev'd in part and remanded on other grounds, 333 N.C.
342, 425 S.E.2d 696 (1993) (post-separation payments treated asdistributional factor). Here, the trial court obviously chose to
treat the debt payments as a distributional factor, but gave little
weight to that factor. We have previously held that the trial
court could choose to give no weight to a distributional factor.
Smith v. Smith, 111 N.C. App. 460, 510, 433 S.E.2d 196, 226,
disc.
review denied, 335 N.C. 177, 438 S.E.2d 202 (1993),
rev'd on other
grounds, 336 N.C. 575, 444 S.E.2d 420 (1994) (trial court properly
found a distributional factor to be present and chose not to give
any weight to the factor). Consequently, we find here no abuse of
the trial court's discretion in its treatment of debts paid by
defendant after separation.
VI. Delay in the Entry of Judgment
[7]Defendant argues that his due process rights under both
the United States Constitution and the North Carolina Constitution
were violated by the delay of 19 months from the date of trial to
the entry of judgment in this matter. Defendant argues that an
overall goal of our Equitable Distribution Act is "wind[ing] up the
marriage and distribut[ing] the marital property fairly with as
much certainty and finality as possible."
Lawing v. Lawing, 81
N.C. App. 159, 183, 344 S.E.2d 100, 115 (1986).
We recognize there is inevitably some passage of time between
the close of evidence in an equitable distribution case and the
entry of judgment. That is particularly true in a lengthy,
complicated matter such as the case before us. Competent counsel
for the parties carried out extensive discovery, submitted numerous
legal briefs and responded to the briefs filed by their opponents. In many cases, a delay in the entry of judgment f
or 30 or 60
days following trial would not be prejudicial because there would
be little or no change in the situation of the parties or the
values assigned to the items of property. In this case, however,
there was a nineteen-month delay between the date of trial and the
date of disposition. This was more than a
de minimis delay, and
requires that the trial court enter a new distribution order on
remand. Where there is such an extensive delay, even though it be
due to factors beyond the trial court's control, we believe it
would be consistent with the goals of the Equitable Distribution
Act that the trial court allow the parties to offer additional
evidence as to any substantial changes in their respective
conditions or post-trial changes, if any, in the value of items of
marital property.
Thus, on remand, the trial court must reconsider the evidence
of the increase in value of the husband's profit-sharing plan
following separation, treating such increase as a distributional
factor, rather than attempting to divide the increase. Further,
the trial court must reconsider the evidence offered by the husband
on the state of his health, make appropriate findings about the
evidence, and give it appropriate weight in making a new
distribution decision. Finally, the trial court must give the
parties an opportunity to offer evidence on the changes, if any, in
value of the marital property since the trial of this matter. The
trial court is then to make a new distribution order.
Except as set out herein, the remainder of the equitabledistribution judgment from which this appeal was taken is a
ffirmed.
Affirmed in part, reversed in part, and remanded.
Chief Judge EAGLES and Judge MARTIN concur.
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