DEBORAH W. HAY,
Plaintiff
v
.
EDWARD C. HAY, JR.,
Defendant
Kelly & Rowe, P.A., by E. Glenn Kelly, for plaintiff-appellee.
Robert E. Riddle, PA, by Robert E. Riddle, for defendant-
appellant.
HUNTER, Judge.
Edward C. Hay, Jr. (defendant) appeals from an equitable
distribution judgment, amended equitable distribution judgment, and
a second amended equitable distribution judgment awarding an
unequal division of the marital estate in defendant's favor. For
reasons stated herein, we affirm the judgments of the trial court.
Defendant and Deborah W. Hay (plaintiff) were married on 6
August 1972. Three children were born of the marriage. On 17 July
1997 the parties separated, and on 9 September 1998 the parties
were divorced. On 7 January 1998, plaintiff filed a complaint
seeking alimony, temporary and permanent post-separation support,
attorney's fees, writ of possession, equitable distribution, child
custody, and child support. The issues of child support andcustody, post-separation support, writ of possession and attorney's
fees were heard on 17 April 1998 and are not a part of this appeal.
Plaintiff's claim for equitable distribution was not heard on that
date.
Following the hearing, the trial court entered an order on 23
April 1998 in which it stated that defendant shall make the
monthly mortgage payments of $1,900 on the marital home. Upon
defendant's motion to amend the order, the trial court entered an
order on 29 June 1998 in which it noted that [t]he court did not
intend the obligation to continue the mortgage payment to be in the
nature of child support nor as postseparation support and to avoid
any confusion at the time of equitable distribution should clear up
this ambiguity. The trial court ordered that defendant should
make the monthly mortgage payments . . . 'in order to preserve the
marital estate.'
Plaintiff's claim for equitable distribution was heard on 1
June 2000, and the trial court entered judgment on 3 July 2000.
The trial court made extensive findings of fact regarding the
assets and liabilities of the parties, including that defendant had
continued to pay the monthly mortgage payments on the marital home
following the parties' separation. The trial court concluded the
marital property should be divided in favor of defendant and
awarded defendant $111,684.32 in marital property, and awarded
plaintiff $92,362.18 in marital property. The trial court then
assessed the marital debts, and assigned $28,215.00 of the debts to
defendant and $16,000.00 to plaintiff. The trial court noteddefendant had paid three of the debts assigned to him, and that
this fact was considered as a distributional factor.
Defendant filed a motion for a new trial or amendment of the
judgment on 10 July 2000. On 19 July 2000, the trial court entered
an amended equitable distribution judgment wherein it amended one
finding of fact unrelated to this appeal. On 4 August 2000,
defendant's motion for new trial or amendment of the judgment was
heard. The trial court entered a second amended equitable
distribution judgment on 16 August 2000 which attempted to clarify
the debt distributed to the parties. The trial court amended its
findings of fact to remove from defendant's list of debts assigned
to him those debts which he had paid. The trial court noted that
defendant's payment of the debts was either considered as a
distributional factor or the amount of the debts was deducted from
assets distributed to him. The trial court made adjustments
accordingly in the amount of marital property distributed to each
party, awarding plaintiff $91,162.18 of the marital property, and
defendant $110,484.32. Defendant appeals.
Defendant brings forth four assignments of error on appeal:
(1) the trial court erred in failing to award defendant a dollar
for dollar credit of the total sum of monthly mortgage payments
which defendant paid post-separation; (2) alternatively, the trial
court erred in failing to treat the payments and the depreciation
in the mortgage balance as divisible property; (3) the trial court
erred in treating the marital debts paid by defendant as
distributional factors as opposed to marital property to bedivided; and (4) the trial court erred in failing to order an
unequal division of the assets in defendant's favor after finding
that an unequal division in his favor would be equitable.
Initially, we note the trial court is vested with wide
discretion in family law cases, including equitable distribution
cases. Wall v. Wall, 140 N.C. App. 303, 307, 536 S.E.2d 647, 650
(2000). 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.' Id. (citation omitted).
Defendant first argues the trial court erred in failing to
give him a dollar for dollar credit for his monthly mortgage
payments following the parties' separation. Specifically,
defendant maintains the trial court's failure to do so was a
failure to follow the mandate of the order regarding child support
and post-separation support and resulted in one trial judge
overruling another. In the alternative, defendant argues the trial
court should have at least treated the payments and the decrease in
the mortgage balance as divisible property. We disagree with both
arguments.
We first reject defendant's argument that the trial court
effectively overruled a prior ruling of another trial court when it
failed to give defendant a dollar for dollar credit for post-
separation mortgage payments, but instead considered the payments
as a distributional factor. The original trial court order
regarding child support and post-separation support ordered
defendant to make monthly mortgage payments of $1,900.00 on themarital home. The trial court thereafter entered an amended order
to clarify this issue, stating that [t]he court did not intend the
obligation to continue the mortgage payment to be in the nature of
child support nor as postseparation support. It entered a
clarification which ordered defendant to pay the mortgage . . .
'in order to preserve the marital estate.'
Nowhere in the original order or amended order did the trial
court state its intent that defendant receive a dollar for dollar
credit for such payments. Nor will we read such an intent into the
trial court's order, particularly where the trial court was without
authority to conclusively determine issues pertaining to equitable
distribution when the matters before it were child support and
custody, post-separation support, writ of possession and attorney's
fees. The trial court which subsequently considered plaintiff's
motion for equitable distribution was in no way bound by the
decision regarding child support and post-separation support in
making its determination of an equitable distribution. We
therefore do not interpret the trial court's equitable distribution
judgment as overruling the prior order.
Moreover, the trial court had discretion to consider
defendant's payments . . . 'to preserve the marital estate' as a
distributional factor, as opposed to giving defendant a credit.
N.C. Gen. Stat. § 50-20(c)(11a) (1999) plainly states that in
distributing the marital property, the court shall consider [a]cts
of either party to maintain, preserve, develop, or expand . . . the
marital property or divisible property, or both, during the periodafter separation of the parties and before the time of
distribution. N.C. Gen. Stat. § 50-20(c)(11a). Payment by one
spouse on a marital home mortgage after the date of separation is
a factor appropriately considered by the trial court under G.S. 50-
20(c)(11a) and (c)(12) in determining what division of marital
property is equitable. Fox v. Fox, 103 N.C. App. 13, 21, 404
S.E.2d 354, 358 (1991) (rejecting defendant's argument that he was
entitled to credit for mortgage payments on marital home and for
taxes and insurance on home).
This Court has recently reiterated that post-separation
payments on marital debts may be treated as a distributional
factor. Khajanchi v. Khajanchi, 140 N.C. App. 552, 564, 537 S.E.2d
845, 853 (2000). Further, 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.
Id. We held in Khajanchi that the trial court was well within its
discretion in treating the defendant's post-separation mortgage
payments and payments on other marital debts as a distributional
factor. Id.; see also Wall, 140 N.C. App. at 313, 536 S.E.2d at
653-54 (trial court did not abuse discretion in treating post-
separation mortgage and other payments required to maintain marital
property as distributional factor to which it gave little weight);
Miller v. Miller, 97 N.C. App. 77, 80-81, 387 S.E.2d 181, 184
(1990) (rejecting plaintiff's argument that he was entitled to
credit for post-separation mortgage payments; such payments areproperly considered as distributional factors under N.C. Gen. Stat.
§ 15-20(c)).
By his second argument, defendant contends in the alternative
that the trial court should have at least considered the payments
made and the decrease in the mortgage debt as divisible property
under N.C. Gen. Stat. § 50-20(b)(4) (1999). He argues that his
mortgage payments resulted in an appreciation in the value of the
marital property, and should therefore fall within the following
category of divisible property:
All appreciation and diminution in value of
marital property and divisible property of the
parties occurring after the date of separation
and prior to the date of distribution, except
that appreciation or diminution in value which
is the result of postseparation actions or
activities of a spouse shall not be treated as
divisible property.
N.C. Gen. Stat. § 50-20(b)(4)a. We likewise reject this argument.
The Equitable Distribution Act was amended in 1997 to include
this category of divisible property in an effort to equitably
account for post-separation events. Khajanchi, 140 N.C. App. at
556, 537 S.E.2d at 848. Although the issues in Khajanchi were
decided under pre-1997 law, we noted:
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.
Id. However, under the plain language of N.C. Gen. Stat. § 50-
20(b)(4)a, appreciation that results from the activities or actionsof one spouse is not treated as divisible property. Therefore,
assuming defendant's mortgage payments resulted in an appreciation
in the value of the marital home, it was the result of his actions,
and any resulting appreciation does not fall within the category of
divisible property as defined by N.C. Gen. Stat. § 50-20(b)(4).
It is not clear from the plain language of N.C. Gen. Stat. §
50-20(b)(4) how the legislature intends for trial courts to treat
property falling within the subsection (a) actions or activities
of a spouse exception. For instance, such property cannot
constitute separate property, as it does not fit within the
definition of separate property as set forth in N.C. Gen. Stat. §
50-20(b)(2). What is clear, however, is that the law affords trial
courts wide discretion in determining how to treat post-separation
mortgage payments by one spouse. As discussed above, a trial court
may treat such payments as a distributional factor. See N.C. Gen.
Stat. § 50-20(c)(11a); (12). A trial court may also give the payor
a dollar for dollar credit in the division of the property, or
require that the non-payor spouse reimburse the payor for an
appropriate amount. See Loving v. Loving, 118 N.C. App. 501, 505-
06, 455 S.E.2d 885, 888 (1995). Our legislature has not expressed
a preference for one particular method of treatment. In the
present case, it was within the trial court's discretion to treat
defendant's post-separation mortgage payments to preserve the
marital estate as a distributional factor.
Moreover, defendant's argument that the payments are divisible
property within the meaning of N.C. Gen. Stat. § 50-20(b)(4)d,defining such property as [i]ncreases in marital debt and
financing charges and interest related to marital debt is also
without merit. Defendant's mortgage payments have not increased
the marital debt, financing charges, or interest on the marital
debt. This provision therefore has no application to this issue.
These assignments of error are overruled.
In his third argument, defendant argues the trial court erred
in failing to treat some of the marital debts as marital property
to be divided, instead treating the debts solely as distributional
factors. He contends the trial court neglected to properly value
and distribute three debts incurred during the marriage -- Wachovia
Visa, Citibank, and Colorado College -- which defendant paid
following the parties' separation. We disagree.
'The court has the discretion, when determining what
constitutes an equitable distribution of the marital assets, to
also apportion or distribute the marital debts in an equitable
manner.' Smith v. Smith, 111 N.C. App. 460, 510, 433 S.E.2d 196,
226 (1993) (citation omitted), reversed in part on other grounds,
336 N.C. 575, 444 S.E.2d 420 (1994). The manner in which the
court distributes or apportions marital debts . . . is a matter
committed to the discretion of the trial court. Id.
As with the post-separation payment of a mortgage debt, the
trial court has discretion to consider the post-separation payment
of credit card debts as a distributional factor. See N.C. Gen.
Stat. § 50-20(c)(12); Khajanchi, 140 N.C. App. at 564, 537 S.E.2d
at 853. In Khajanchi, we noted that the trial court haddiscretion to treat defendant's post-separation payments of the
Hallmark debt, the mortgage payments, the car payments, and other
marital debts as distributional factors. Id. As previously
noted, the trial court also has discretion to give a dollar for
dollar credit to the post-separation debt payor or to require
reimbursement from the non-payor spouse. See Loving, 118 N.C. App.
at 505-06, 455 S.E.2d at 888.
The trial court's judgment in the case sub judice reveals it
properly treated the marital debts as property to be divided,
taking into account as a distributional factor that defendant had
already paid some of the debts. In its original judgment, the
trial court added all of the marital assets and determined their
total value to be $204,046.50. It then listed and totaled all of
the marital debts. The trial court proceeded to divide the marital
assets between the parties, noting that an unequal distribution of
property in favor of defendant was equitable. The trial court gave
plaintiff $92,362.18 of the marital assets, and defendant
$111,684.32 in marital assets. The trial court then divided all of
the marital debts, with the majority of debt going to defendant.
The trial court noted, however, that three of the debts assigned to
defendant had been paid by him since the date of separation, and
that this fact was considered by the trial court as a
distributional factor. Therefore, it properly considered the
decrease in the marital debts by virtue of defendant's payments.
The Wachovia Visa, Citibank, and Colorado College debts werenonetheless valued and listed under the category of marital debts
assigned to defendant.
Following the 4 August 2000 hearing on defendant's motion for
new trial or amendment of the judgment, the trial court entered its
second amended equitable distribution judgment in an effort to
clarify its treatment of the debts. The trial court's original
finding of the total value of all marital debts, including the
Wachovia Visa, Citibank, and Colorado College debts remained
unchanged. Therefore, it is clear from both the trial court's
original judgment and second amended judgment that it treated those
debts as divisible property, in that they were classified as part
of the marital debts to be distributed.
However, in its second amended judgment, the trial court did
not list the paid debts in its finding of debts to be distributed
to defendant, but stated instead that debts which defendant had
paid were either subtracted from the assets distributed to him, or
the fact that defendant paid them was considered as a
distributional factor. The trial court was well within its
discretion to treat defendant's post-separation payment on the
marital debts in this manner.
As part of this argument, defendant further contends the trial
court did not consider the debts as marital property because it
treated them separately and failed to include them in the net
marital estate. During the 4 August 2000 hearing on defendant's
motion for new trial or amendment of the judgment, the trial court
explained that it elected to first value and distribute all maritalassets, and second, to value and distribute all marital debts. We
see no reason why the trial court cannot account for and distribute
the marital assets in one step, then account for and distribute the
marital debts in a second step, so long as all marital property and
debts are being valued and distributed in a manner which the court
determines to be equitable. The law simply requires that the
marital debt be valued and distributed; the manner in which the
trial court elects to apportion those debts is within its sound
discretion. See Smith, 111 N.C. App. at 510, 433 S.E.2d at 226.
These arguments are overruled.
By his fourth assignment of error, defendant claims the trial
court erred in failing to order an unequal division of the marital
estate in favor of defendant after it found an unequal division in
his favor would be equitable. We likewise reject this argument.
In finding of fact number eleven, the trial court did find that an
unequal division of the marital property in favor of defendant
would be equitable. The trial court did, in fact, award an unequal
division of the marital property in defendant's favor. In its
second amended judgment, defendant received $110,484.32 of the
marital property after the trial court subtracted $2,400.00 in
marital debt assigned to defendant. Plaintiff received $91,162.18
of the marital property and $7,400.00 in debt. Although defendant
argues he did not receive an unequal division in his favor
considering the debts and mortgage payments which the court
properly considered as distributional factors, such factors are
merely items which the court considers in determining an equitabledistribution, and are not valued for purposes of determining the
net marital estate to be divided. See N.C. Gen. Stat. § 50-20(c).
Moreover, the fact that the final judgment was not
significantly in defendant's favor does not constitute an abuse of
the trial court's discretion. As the trial court noted at the 4
August 2000 hearing, although the unequal division was probably not
to the extent desired by defendant, it's not overwhelming in
[defendant's] favor . . . . It's not overwhelming in [plaintiff's]
favor . . . . [I]t was a little more in his favor . . . but not a
great deal. We discern no abuse of discretion in the trial
court's judgment.
Finally, defendant includes in his heading to argument two in
his brief the statement that the trial court erred in failing to
include as divisible property the fair market rental value of the
marital residence. However, defendant fails to set forth any
argument or authority in support of this assertion, and it is
therefore deemed abandoned. N.C.R. App. P. 28(b)(5).
Affirmed.
Judges McGEE and BRYANT concur.
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