Link to original WordPerfect file
How to access the above link?
**FINAL**
JAYSHREE KHAJANCHI, Plaintiff, v. KIRIT A. KHAJANCHI, Defendant
No. COA99-1056
(Filed 21 November 2000)
1.Divorce--equitable distribution--unequal division proper
The trial court did not abuse its discretion in an equitable distribution case asserted prior
to the divisible property amendments in 1997 by distributing the marital estate unequally by
$200,000 more in property in favor of defendant-husband and by giving each party two Hallmark
stores even though plaintiff-wife requested all four stores, because: (1) the trial court specifically
found that the four Hallmark stores owned by the parties had greatly appreciated in value since
the date of separation, and the appreciation was due to the efforts of defendant; (2) the trial court
noted the forty-six percent increase in the value of the four Hallmark stores was created by active
appreciation attributable to the post-separation efforts of defendant; (3) the trial court considered
as a distributional factor that defendant incurred considerable financial losses from the date of
separation onward due to the forced sale of the parties' Georgia residence and his payments of
numerous marital debts; (4) the trial court distributed all the other marital debts to defendant and
balanced this allocation by distributing additional assets to defendant; (5) the trial court made an
interim distribution of $180,000 to plaintiff from the marital assets of the parties; and (6) the trial
court distributed two Hallmark stores to each party after considering store locations, the parties'
requests, the parties' conduct, and the economic ramifications of each combination.
2. Divorce--equitable distribution--distributional factors--discretion of trial court
The trial court did not abuse its discretion in an equitable distribution case asserted prior
to the divisible property amendments in 1997 by failing to classify and distribute as marital debt
the sales cost and income taxes incurred in connection with the sale of the parties' Georgia real
estate, because: (1) even if post-separation debt payments are treated as a distributional factor, the
trial court may in its discretion choose to give no weight to that particular factor; and (2)
defendant was not prejudiced in any way by the trial court's actions since those distributional
factors resulted in an unequal distribution in his favor.
3. Divorce--equitable distribution--marital debts
The trial court did not err in an equitable distribution case asserted prior to the divisible
property amendments in 1997 by its distribution of the assets and debts of the parties' Hallmark
stores even though defendant-husband contends the trial court should have used the same method
it used for the division of a Wachovia Bank checking account when it distributed the stores' debts
owed to Hallmark, Enesco, and Lefton, because: (1) the trial court chose to distribute the amount
of the Enesco and Lefton invoices equally since it had no way of determining from the evidence
how much of the inventory was in the two stores distributed to plaintiff-wife; (2) neither party
chose to incur the expense of a complete inventory to determine whether the merchandise in
question was in existence and in which store it was located; and (3) defendant had no objection to
an equal division of the Enesco or Lefton accounts at trial.
Appeal by both plaintiff and defendant from judgment entered
8 January 1999 by Judge Shelly S. Holt in New Hanover County
District Court. Heard in the Court of Appeals 14 August 2000.
Jayshree Khajanchi (plaintiff) and Kirit A. Khajanchi
(defendant) were married on 26 November 1968, separated on 29February 1996, and divorced on 1 August 1997. Their two children
are emancipated. Prior to the entry of their divorce judgment,
both plaintiff and defendant asserted claims for equitable
distribution of their marital property and debts.
Plaintiff and defendant moved to Wilmington, North Carolina,
in 1981. In 1986, the parties purchased a Hallmark franchise
(Jay's Hallmark) in Wilmington. Plaintiff-wife operated the
business until 1991, when defendant-husband began working in the
store with her. In mid-1993, the parties purchased three Hallmark
stores in Myrtle Beach, South Carolina. Following the separation
of the parties, defendant operated all four Hallmark stores,
receiving a salary, bonuses, and other benefits from his management
of the stores. Prior to the trial of the equitable distribution
claims, the wife received $180,000.00 in interim distributions.
In addition to the four Hallmark stores, on the date of
separation the parties also owned a home in Wilmington, another
residence in Georgia, and a condominium at Wrightsville Beach.
Their personal property included three automobiles, numerous IRAs
and other investment accounts, checking accounts, household
furnishings, jewelry, Hallmark "collectibles," and a life insurance
policy with cash value.
The trial court valued the marital assets of the parties at
$2,591,155.00 and the marital debt at $694,940.00 on the date of
separation. After hearing evidence on various distributional
factors, the trial court concluded that an equal distribution would
not be equitable, and ordered an unequal distribution in favor of
defendant-husband. Both parties appealed.
Lea, Clyburn & Rhine, by J. Albert Clyburn and James W. Lea,
III, for plaintiff appellant-appellee.
Carlton S. Prickett, Jr., for defendant appellant-appellee.
HORTON, Judge.
The division of property between married persons following
separation or divorce was relatively simple in North Carolina
before the enactment of the Equitable Distribution Act in l981.
Prior to that time, this State was one of a dwindling group of
common law "title" jurisdictions, in which property was assigned to
the spouse holding its "title." In most cases, that spouse was
the husband. Typically, only real property was jointly titled to
the spouses. Although the number of women in the work force
increased after the end of World War II, the husband's employment
was still likely to be the primary source of income for the
parties, and any deferred compensation or retirement benefits were"owned" by him. The title system of allocation "tended to
reward
the spouse directly responsible for its acquisition, while
overlooking the contribution of the homemaking spouse." White v.
White, 312 N.C. 770, 774, 324 S.E.2d 829, 831 (l985). See also 3
Suzanne Reynolds, Lee's North Carolina Family Law § 12.5, at ___
(forthcoming publication, 5th ed. December 2000); Sally B. Sharp,
Equitable Distribution of Property in North Carolina: A Preliminary
Analysis, 61 N.C.L. Rev. 247 (1983).
The common law "title" system was not only unfair, but also
spawned unnecessary litigation. Dependent spouses routinely made
claims for alimony and requested possession of the dwelling house
and its contents, and absolute divorces were often contested to
encourage a more reasonable property settlement. However,
[w]ith the advent of no-fault divorce,
dependent spouses lost the "bargaining power"
of refusing to consent to a divorce. . . . The
combination of no-fault divorce and a "title
only" rule for property distribution sometimes
led to unconscionable results. See, e.g.,
Leatherman v. Leatherman, 297 N.C. 618, 256
S.E.2d 793 (1979) (wife worked in home and in
husband's closely held corporation for many
years but could receive only one-half the
marital home upon divorce under prevailing
legal theories). Pressure mounted for North
Carolina to follow the lead of other states in
adopting statutes based on community property
or equitable distribution principles. . . .
The General Assembly responded in 1981 by
enacting "An Act for Equitable Distribution of
Marital Property," codified as N.C.G.S. §§ 50-
20, -21.
McLean v. McLean, 323 N.C. 543, 549, 374 S.E.2d 376, 380 (l988).
Equitable distribution, as enacted in North Carolina, was
grounded in the notion that marriage is a partnership enterprise,
both economic and otherwise, "to which both spouses make vitalcontributions and which entitles the homemaker spouse to a share of
the property acquired during the relationship." White, 312 N.C. at
775, 324 S.E.2d at 832. "In other words, '[t]he goal of equitable
distribution is to allocate to divorcing spouses a fair share of
the assets accumulated by the marital partnership.' The heart of
the theory is that 'both spouses contribute to the economic
circumstances of a marriage, whether directly by employment or
indirectly by providing homemaker services.'" Smith v. Smith, 314
N.C. 80, 86, 331 S.E.2d 682, 686 (1985) (citations omitted). Thus,
the Act authorized our state's district courts to consider factors
other than legal title in distributing the marital assets upon the
dissolution of the marriage. In keeping with this statutory
mandate, we have stated that "the policy behind G.S. 50-20 is
basically one of repayment of contribution." Hinton v. Hinton, 70
N.C. App. 665, 669, 321 S.E.2d 161, 163 (1984).
In an effort to equitably account for post-separation events,
the Equitable Distribution Act was amended in 1997 to add the
category of "divisible" property. 1997 N.C. Sess. Laws ch. 302, §§
2-5. As a result of those amendments, the trial courts were
directed to classify, value and distribute certain real and
personal property received after the date of separation, including
the appreciation and diminution in the value of marital property,
passive income from marital property, and certain increases in
marital debt. N.C. Gen. Stat. § 50-20(b)(4) (1999). The 1997
amendments were effective 1 October 1997 and applied to actions for
equitable distribution filed on or after that date. The claims for
equitable distribution in this case were asserted prior to theeffective date of the amendments relating to "divisible property";
thus our discussion below is confined to our statutory and case law
as it existed prior to the enactment of the 1997 amendments.
Upon a party's application for equitable distribution, the
trial court is to determine what is "marital" property and provide
for an equitable distribution of such property. N.C. Gen. Stat.
§ 50-20(b)(1) (definition of marital property); N.C. Gen. Stat.
§ 50-20(c); Truesdale v. Truesdale, 89 N.C. App. 445, 448, 366
S.E.2d 512, 514 (1988). The court's task is divided into three
parts: classification, valuation, and distribution. Cable v.
Cable, 76 N.C. App. 134, 137, 331 S.E.2d 765, 767, disc. review
denied, 315 N.C. 182, 337 S.E.2d 856 (1985).
At the classification stage, the court must determine whether
the property was acquired during the marriage by the efforts of one
or both spouses, or whether it is the separate property of one
spouse. Marital debts must likewise be classified. "[O]nly those
assets and debts that are classified as marital property and valued
are subject to distribution under the Equitable Distribution
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). After classification, the items of marital
property must be valued as of the date of the separation of the
parties, since the marital estate is "frozen" at that time. Becker
v. Becker, 88 N.C. App. 606, 607, 364 S.E.2d 175, 176 (1988). A
net value for each item must be reached by considering the "market
value, if any, less the amount of any encumbrance serving to offset
or reduce market value." Alexander v. Alexander, 68 N.C. App. 548,551, 315 S.E.2d 772, 775 (1984). Finally, the court must
distribute the marital property and debts in an "equitable" manner
between the parties. Beightol v. Beightol, 90 N.C. App. 58, 367
S.E.2d 347, disc. review denied, 323 N.C. 171, 373 S.E.2d 104
(l988).
Here, the parties do not take exception to any findings of
fact or conclusions of law with regard to the trial court's
classification and valuation of any property or debts. Their
objections are to the distribution of the marital property,
particularly the four Hallmark stores owned by them.
I. Plaintiff's Appeal
Plaintiff-wife appeals from the decision of the trial court to
distribute the marital estate unequally in favor of defendant-
husband. She contends that, in light of the distributional factors
found by the trial court, the trial court abused its discretion in
ordering an unequal distribution. After careful review, we disagree
and affirm the trial court.
The North Carolina Equitable Distribution Act is
a legislative enactment of public policy so
strongly favoring the equal division of
marital property that an equal division is
made
mandatory "unless the court determines
that an equal division is not equitable."
N.C.G.S. 50-20(c). The clear intent of the
legislature was that a party desiring an
unequal division of marital property bear the
burden of producing evidence concerning one or
more of the twelve factors in the statute and
the burden of proving by a preponderance of
the evidence that an equal division would not
be equitable. Therefore, if no evidence is
admitted tending to show that an equal
division would be inequitable, the trial court
must divide the marital property equally.
When evidence tending to show that anequal division of marital prop
erty would not
be equitable is admitted, however, the trial
court must exercise its discretion in
assigning the weight each factor should
receive in any given case. It must then make
an equitable division of the marital property
by balancing the evidence presented by the
parties in light of the legislative policy
which favors equal division.
White, 312 N.C. at 776-77, 324 S.E.2d at 832-33.
As
White indicates, the party who desires an unequal division
bears evidentiary burdens concerning the relevant statutory
factors, and also has the burden of proving by a preponderance of
the evidence that an equal division would not be equitable. These
burdens become even more significant
when we consider the fact that
the trial court has broad discretion in determining the weight to
be accorded to statutory factors and in distributing the marital
estate.
Alexander, 68 N.C. App. at 552, 315 S.E.2d at 775-76. If
the trial court divides property unequally, it must make findings
of fact based on the evidence in support of its conclusion that an
equal division would not be equitable.
Id.
The trial court's decision "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, 312 N.C. at 777, 324 S.E.2d at 833.
See also
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);
Smith v. Smith, 111 N.C. App. 460, 433 S.E.2d 196
(l993),
rev'd on other grounds, 336 N.C. 575, 444 S.E.2d 420 (1994)
(upholding trial court's distribution where trial court found the
presence of a factor but stated in the final order that it chosenot to give any weight to that factor). A single distributional
factor can support an unequal distribution of the marital property
and debts.
Andrews v. Andrews, 79 N.C. App. 228, 235, 338 S.E.2d
809, 814,
disc. review denied, 316 N.C. 730, 345 S.E.2d 385 (1986).
The trial court's distribution will not be disturbed on appeal
absent evidence that it is manifestly unsupported by reason.
Lawing v. Lawing, 81 N.C. App. 159, 162, 344 S.E.2d 100, 104
(1986). See also
Nix v. Nix, 80 N.C. App. 110, 341 S.E.2d 116
(1986)(upholding trial court's award of 100% of the marital estate
to one party due to a finding that significant post-separation
appreciation of one marital asset had accrued to the benefit of the
other party), and
Godley v. Godley, 110 N.C. App. 99, 429 S.E.2d
382 (1993)(affirming trial court's award of 90% of the marital
estate to one party based upon the presence of several
distributional factors).
During their marriage, the Khajanchis acquired four Hallmark
stores: Jay's Hallmark in Wilmington, North Carolina, and the
Briarcliff, Myrtle Square and Inlet Square stores in Myrtle Beach,
South Carolina. The Khajanchis incurred significant debt to
purchase these stores, and those debts were still in existence when
the marriage ended in 1996. In addition, there were mortgage debts
on each of the Khajanchis' three residences, as well as an
automobile debt. The trial court was primarily concerned with
distributing these marital debts and the four Hallmark stores
during the equitable distribution proceeding.
After careful consideration of the evidence, the trial court
determined that "an equal division of the marital estate is notequitable. Rather, an unequal distribution of the marital estate
in favor of Defendant, as set forth herein, is equitable." The
trial court then distributed about $200,000.00 more in property to
defendant-husband than to plaintiff-wife. The effect of the
division was that the defendant received $100,000.00 more than he
would have received under an equal division.
[1]The plaintiff contends that the trial court erred in
making an unequal division of the marital assets, that the trial
court improperly considered as distributional factors certain post-
separation payments made by defendant, and that the trial court
improperly distributed the four Hallmark stores, because plaintiff
requested all four Hallmark stores and was given only two of them.
We disagree with each of plaintiff's arguments.
Because of post-separation changes in the value of property,
our trial courts were often required -- prior to the 1997
amendments -- to make an unequal distribution in order to achieve
equity. "If the court determines that an equal division of the
marital property is not equitable, the court shall divide the
marital property . . . equitably." N.C. Gen. Stat. § 50-20(c).
See also
White, 312 N.C. at 777, 324 S.E.2d at 833 (stating that
the trial court must exercise its discretion in considering the
factors in N.C. Gen. Stat. § 50-20(c) and then make an equitable
division of the marital property once it determines that an equal
division is inequitable.)
Here, the able trial judge meticulously considered a host of
distributional factors, such as the value of separate property
owned by the parties and the value of business interests acquiredby them after the date of separation. As part of its detailed
order, the trial court made the following findings:
17. After the parties['] separation a
nd
at the time of trial, each party had acquired
additional assets which are hers or his
separate property: Plaintiff-Wife now owns a
50% interest in five (5) Taco Bell restaurants
in California and Defendant-Husband now owns
the "Jacksonville" Hallmark store.
18. In 1997, the five (5) Taco Bell
restaurants in which Plaintiff has a 50%
interest earned a total net profit of
$300,000.
19. From December 31, 1997, through
January 20, 1998, the Defendant had control of
bank accounts, both business and personal,
which collectively may have had as much as
$918,000 on deposit; however, at the time of
trial it was shown that there were several
outstanding checks and other payments which
Defendant had made from these accounts which
were not reflected on the account balances
shown by Plaintiff and therefore the total
balance in these accounts at trial was closer
to approximately $350,000.
20. Of the approximate $350,000 which
Defendant had on deposit at the time of trial
in the various accounts, approximately
$152,000 was in a personal savings account
. . . and represented payments received by him
from two (2) bonuses in 1997 of $100,000 each
from the Wilmington store and the three (3)
Myrtle Beach stores less his payment of
$45,000 for estimated income taxes on these
bonuses.
21. Two (2) of the bank accounts which
were included in the evidence offered by
Plaintiff that Defendant had approximately
$918,000 at the time of trial were bank
accounts which were opened after the date of
separation . . . .
. . . .
26. Defendant preserved marital assets
after the parties' separation by paying the
monthly payments on the mortgages, and by also
paying off the mortgage on the Georgiaresidence at the time of its sale; by making
the payments on the Ford Explorer debt; and by
making the monthly payments on the "Hallmark
debt".
27. After the separation, the Defendant
paid the sum of $4,987 to or on behalf of
Plaintiff . . . .
28. After the parties' separation, the
"Georgia house" was sold in December,
1996 . . . . Defendant incurred $6,631 in
"closing costs" and $31,985 for income taxes
arising from the sale of this property . . . .
29. After the date of separation, the
Defendant liquidated [an investment account].
As a result of this sale, Defendant incurred
an income tax liability of $24,000.
30. After the date of separation, [the
Plaintiff received an interim distribution of
$180,000].
31. Any distributional payment by
Defendant to Plaintiff would be with "after-
tax dollars" of Defendant and would be non-
taxable to Plaintiff.
. . . .
33. Since the parties' separation the
Defendant has had the sole responsibility for
managing and maintaining all four of the
Hallmark stores.
. . . .
37. The increase in value of these four
(4) stores to $2,062,890 at the time of trial,
being an almost forty-six percent (46%)
increase in value from their total value of
$1,415,366 at the date of separation, is
active appreciation attributable primarily to
the post-separation efforts of Defendant.
. . . .
39. . . . The principal amoun
t owed [on
the "Hallmark debt"] was reduced from $418,469
at the date of separation to $256,145 as of
the date of trial, with this reduction in the
balance being the result of payments made by
Defendant after separation and up to the dateof trial. . . .
. . . .
43. The division and distribution of the
four (4) stores, . . . is based on location as
well as gross sales from 1997. Defendant-
husband lives in Wilmington and the Briarcliff
store is the closest store to the Wilmington
store. The Myrtle Square and Inlet Square
stores had 48% of the gross sales of the four
stores in 1997. The Court finds this division
and distribution of the stores to be equitable
if Defendant is assigned the entire Hallmark
debt.
44. The Defendant-husband is being
assigned all marital debt.
The trial court specifically found that the four Hallmark
stores had greatly appreciated in value since the date of
separation, and the court found that the appreciation was due to
the efforts of the defendant-husband. At the date of separation,
the four stores were collectively worth $1,415,366.00. The trial
court also found that:
36. The date of trial values for the four Hallmark
stores are as follows:
a. Wilmington (Jay's Hallmark) $ 815,040
b. Briarcliff (MyrBch) &nbs
p; 413,787
c. Myrtle Square (MyrBch) &
nbsp; 467,819
d. Inlet Square (MyrBch) &n
bsp; 366,244
&nb
sp; TOTAL...$ 2,062,890
The trial court noted that this change represented an increased
value of nearly forty-six percent and was created by "active
appreciation attributable primarily to the post-separation efforts
of Defendant. For example, after the parties separated the
Defendant not only managed these stores without assistance from
Plaintiff but he also remodeled the Wilmington store and doubled
the size of the Myrtle Square store." The trial court also considered as a distributional factor
that defendant incurred considerable financial losses from the date
of separation onward because of the forced sale of the Georgia
residence and his payments of numerous marital debts. Plaintiff
contends the trial court's consideration of these facts was error.
However, after examining the record, we disagree and find the trial
court properly weighed the factors.
The judge distributed the Georgia house to defendant at
$88,000.00, its date-of-separation value. The house was sold by
defendant before the final equitable distribution order was
entered. However, defendant did not actually receive the entire
$88,000.00 realized from the sale. From that amount, defendant
paid $5,298.00 in repair costs to prepare the house for sale,
$6,631.00 in sales costs, and $31,985.00 in income taxes on the
sale proceeds.
Further, the trial court distributed all the other marital
debts to defendant. Defendant-husband incurred a substantial income
tax liability of $24,000.00 when he liquidated the couple's 20th
Century money fund/investment account after the date of separation
to pay bills and expenses associated with his management of the
Hallmark stores. The trial court also made an interim distribution
of $180,000.00 to plaintiff from the marital assets of the parties.
These payments were also properly taken into consideration by the
trial court in making its distributional decision. To balance the
allocation of these debts to defendant-husband, the trial court
distributed additional assets to defendant. This was within the
trial court's discretion under our decision in White, and was notan abuse of discretion.
Faced with the task of actually dividing the four stores
between the parties, the trial court assessed numerous distributive
scenarios by evaluating store locations, the parties' requests, the
parties' conduct, and the economic ramifications of each
combination. The trial court stated that it was initially inclined
to distribute all four stores to defendant, since he operated all
of them from the date of separation to the time of trial; however,
the trial court also considered the plaintiff's request for
continued involvement in the businesses. The trial court
ultimately distributed the Wilmington and Briarcliff stores to
defendant and the Myrtle Square and Inlet Square stores to
plaintiff. This was a permissible distribution, because we have
previously held that "there appears to be no other guide than the
discretion and good conscience of the trial judge in determining
which party gets which specific property." Andrews, 79 N.C. App.
at 236, 338 S.E.2d at 814. Based on the findings of fact made by
the trial court, we hold the trial court did not abuse its
discretion in making its distributional decision, nor did it abuse
its discretion in distributing two of the four Hallmark stores to
each of the parties.
II. Husband's Appeal
[2]Defendant-husband first contends that the trial court
erred in failing to classify and distribute as marital debt the
sales cost and income taxes incurred in connection with the sale of
the Georgia real estate. We disagree. As discussed above in
section I of this opinion, defendant-husband incurred substantialexpenses in connection with the sale of the Georgia real estate,
including $5,298.00 for repairs, $6,631.00 in closing costs, and
income tax liability on the sale proceeds of $31,985.00. The trial
court distributed the property to defendant-husband at the gross
sales price, treated the outstanding mortgage as a marital debt,
and treated the other expenditures by defendant-husband as
distributional factors.
Prior to the enactment of the divisible property amendments in
1997, the trial court had wide latitude in dealing with debts
incurred in connection with the sale or maintenance of jointly
owned real estate. Generally speaking, the manner in which the
trial court distributes or apportions marital debts is a matter
committed to the trial court's discretion.
Rawls, 94 N.C. App. at
676, 381 S.E.2d at 182. That exercise of discretion is given
considerable weight by this Court. For example, in
Truesdale, we
stated that the trial court can award adjustive credits as part of
an overall marital property distribution.
Truesdale, 89 N.C. App.
at 450, 366 S.E.2d at 516. See also
Hendricks v. Hendricks, 96
N.C. App. 462, 386 S.E.2d 84,
cert. denied, 326 N.C. 264, 389
S.E.2d 113 (1990) (post-separation payments made by a spouse may be
treated as credits for that spouse's equitable share of the marital
estate).
Post-separation payments may also be treated as a
distributional factor.
Haywood v. Haywood, 106 N.C. App. 91, 96,
415 S.E.2d 565, 568 (1992),
rev'd in part and remanded on other
grounds, 333 N.C. 342, 425 S.E.2d 696 (1993). However, even if
post-separation debt payments are treated as a distributionalfactor, the trial court may, in its discretion, choose to give no
weight to that particular factor.
Smith, 111 N.C. App. at 510, 433
S.E.2d at 226. Here, the trial court had discretion to treat
defendant's post-separation payments of the Hallmark debt, the
mortgage payments, the car payments, and other marital debts as
distributional factors. Defendant-husband was not prejudiced in
any way by the action of the trial court because those
distributional factors resulted in an unequal distribution in his
favor.
[3]Second, defendant argues that the trial court erred in its
distribution of the assets and debts of the Hallmark stores.
Specifically, defendant complains that the trial court was
inconsistent in its division of a Wachovia Bank checking account,
and store debts owed to Hallmark, Enesco, and Lefton. We disagree,
and affirm the action of the trial court.
From the date of separation through 12 May 1998, defendant-
husband operated all four Hallmark stores. Pursuant to the order
of equitable distribution, plaintiff began operating two of the
Myrtle Beach stores, Inlet Square and Myrtle Square, on 13 May
1998, and defendant began operating the remaining Myrtle Beach
store and the remaining Wilmington store on that date. The
Wilmington store, Jay's Hallmark, was a sole proprietorship, while
the three Myrtle Beach stores were owned by AJITS, Inc., a
corporation formed by the Khajanchis. Proceeds from the three
Myrtle Beach stores were deposited in a checking account at
Wachovia Bank, which had a net balance of $32,877.00 on 12 May
1998. The trial court prorated the checking account balancebetween plaintiff and defendant based on the date of trial values
of the three Myrtle Beach stores, distributing 66.7% of the account
to plaintiff and the remaining 33.3% to defendant. Defendant-
husband does not quarrel with that division, but complains that the
trial court abused its discretion in failing to use the same method
in distributing the debts owed to Hallmark, Enesco, and Lefton by
the three Myrtle Beach stores.
As to the debts owed to Enesco and Lefton, the trial court
found:
55. Enesco supplies both "everyday"
merchandise as well as "seasonal" merchandise
and the $5,854 owed to Enesco may be for
merchandise which was in Plaintiff's two (2)
stores when she took over the management on
May 13. The parties should share equally in
the payment of this total bill.
56. The $2,803 owed to Lefton represents
invoices which pre-date May 13 and are for
"everyday" merchandise which may or may not
have been in Plaintiff's two stores when she
took control of these stores. The parties
should share equally in the payment of this
total bill.
It appears that the trial judge had no way of determining from
the evidence how much of the inventory represented by the Enesco
and Lefton invoices was in the two Myrtle Beach stores distributed
to plaintiff on May 13. Therefore, the trial judge chose to
distribute the amount of the invoices equally. In that action we
find no error.
We first note that, if anyone was prejudiced by the ruling of
the trial court, it was plaintiff because the trial judge could not
say with any certainty whether the invoiced merchandise was in her
two stores. However, plaintiff did not appeal from these findingsby the trial court. "Where no exceptions have been taken to the
findings of fact, such findings are presumed to be correct and are
binding on appeal."
Dull v. Dull, 265 N.C. 562, 563, 144 S.E.2d
587, 588 (1965). Second, neither party chose to incur the expense
of a complete inventory to determine whether the merchandise in
question was in existence on 13 May 1998 and in which store it was
located. It is well settled that the party advocating an unequal
division in an equitable distribution proceeding has the burden of
showing, by a preponderance of the evidence, an error in the trial
court's disposition.
White, 312 N.C. at 776-77, 324 S.E.2d at 832-
33. The burden in this case is on defendant to show such error.
He cannot meet this burden by relying on his own failure to provide
evidence from which the trial court could make a more definitive
ruling.
Finally, it appears that at the trial of the matter defendant
had no objection to an equal division of the Enesco or Lefton
accounts. When defendant was asked about these accounts at a
hearing on 7 December 1998, the following exchange occurred:
Q. And what is your
position then on Anesco?
[sic]
A. I feel that since
a lot of this
merchandise is, you know, not sold I'd be
willing to share half of it if I had to.
Q. That's your position on Anesco? [sic]
A. That's right.
Q. And Lefton is $2,800.00?
A. Right.
As to the Hallmark invoice, the trial court determined that:
54. The Hallmark invoices, whichPlaintiff co
ntends Defendant owes, total
$69,412; however, $42,616 of this $69,412 debt
represents "Season Rebills" which are invoices
for unsold "seasonal" merchandise that are not
owing and due until May of 1999. The
merchandise represented by these "Season
Rebills" invoices was part of the inventory of
Plaintiff's two stores when she took over on
May 13 and may be sold in the future out of
her two stores. Plaintiff should be
responsible for payment of $23,514 on the
"Season Rebills" invoices and Defendant should
pay $19,102 on said invoices. The balance of
$26,796 are for invoices which pre-date May 13
and are for merchandise received by
Plaintiff's two stores prior to May 13 and
which may or may not have been sold by
Defendant prior to Plaintiff assuming control
of these stores. Defendant should pay this
$26,796 balance on invoices owed to Hallmark.
Again, the trial court made a diligent effort to account for
merchandise associated with holidays and special occasions, as
distinguished from everyday merchandise. As to the merchandise for
holidays, the trial court apparently divided it between plaintiff
and defendant, assigned to defendant the portion of the invoice
based on holidays prior to 13 May 1998, and assigned the balance to
plaintiff. As to the invoice for "everyday" merchandise, the trial
court assigned the entire balance to defendant, apparently
reasoning that the invoice represented merchandise already sold by
defendant. Given the evidence and testimony presented by the
parties, the trial court made an equitable distribution of the
Hallmark debt and the entire marital estate. This assignment of
error is overruled.
There being no abuse of discretion in the division of the
marital estate and debt, the judgment of the trial court is
Affirmed.
Chief Judge EAGLES and Judge MARTIN concur.
*** Converted from WordPerfect ***