Appeal by defendant from judgment entered 14 May 2001 by Judge
William M. Cameron, III, in Sampson County District Court. Heard
in the Court of Appeals 13 June 2002.
Joe Allen Edwards, pro se, for plaintiff-appellee.
Lea, Clyburn & Rhine, by James W. Lea, III, for defendant-
appellant.
MARTIN, Judge.
Plaintiff-husband and defendant-wife were married on 4 July
1965 and separated on 1 August 1996. Plaintiff filed a complaint
for absolute divorce on 31 July 1998. Defendant answered and
asserted a counterclaim seeking an equitable distribution of the
marital estate. By an amended complaint, plaintiff asserted claims
for alimony, attorney's fees, and an equitable distribution of the
marital property. A judgment of absolute divorce was granted on 27
April 1999, with the remaining issues reserved for further hearing.
The issues of equitable distribution, alimony, and attorneys'
fees were heard on 14 August 2000. After hearing evidence, the
trial court entered an judgment on 14 May 2001 in which it made
findings of fact, denied plaintiff's claim for alimony, determined
that an equal distribution of the marital property was notequitable, and distributed 42% of the net marital assets to
plaintiff and 58% of the net marital assets to defendant. The
trial court denied both parties' requests for attorneys' fees.
Defendant gave notice of appeal from the trial court's judgment.
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I.
In its order distributing the parties' marital property, the
trial court found that the marital estate consisted “almost
entirely of a hunting lodge, the surrounding real estate, personal
property associated with the lodge and its various activities, and
the personal effects and debts of the parties.” The trial court
distributed the hunting lodge, which is also defendant's residence,
and 86.7 acres of land to defendant; the remaining portion of the
tract upon which the lodge is located, consisting of 87.3 acres, as
well as the remaining land which had been owned by the parties,
approximately 264 acres, was distributed to plaintiff. By her
first assignment of error, defendant contends the trial court erred
when it failed “to make a finding of fact and conclusion of law
that [she] was entitled to the amount of acreage necessary to
enable her to operate a hunting business . . . .”
In equitable distribution cases, the trial court is vested
with “wide discretion.”
Wall v. Wall, 140 N.C. App. 303, 307, 536
S.E.2d 647, 650 (2000) (citation omitted). Accordingly, the trial
court's judgment “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). When dividing and distributing marital property, the trial
court must order an equal division of property unless it determines
that to do so would not be equitable. N.C. Gen. Stat. § 50-20(c).
“If the court determines that an equal division is not equitable,
the court shall divide the marital property and divisible property
equitably.” N.C. Gen. Stat. § 50-20(c) (2001). Although the
statute enumerates several factors which the court is required to
consider in its determination of whether an equal division of the
property is or is not equitable division, “the finding of a single
distributional factor under N.C. Gen. Stat. § 50-20(c) may support
an unequal division.”
Jones v. Jones, 121 N.C. App. 523, 525, 466
S.E.2d 342, 344,
disc. review denied, 343 N.C. 307, 471 S.E.2d 72
(1996) (citation omitted).
Without citing any authority, defendant argues that the trial
court's division of the real estate was error because it separated
the hunting lodge from the land, in effect preventing either party
from owning enough land to operate an income-producing hunting
business. However, the trial court made a specific finding
explaining why it had divided the real property between the parties
rather than leaving it intact:
11. The parties' primary marital asset is
their lodge and land for hunting. Their
hunting business was a major focus of both
spouses, and the lodge also served as their
primary residence. Taken together, the
hunting land and lodge has the potential to be
a money-making business. However,
neither
party has the financial ability to “buy-out”
the other party's share by paying a sizeable
distributive award. Therefore, while
economically desirable to keep the land and
hunting lodge together, such a division is notpossible, and the real estate must be
substantially split in order to achieve an
equitable distribution (emphasis added).
The trial court noted, in its equitable distribution order,
“defendant wife's request to have additional land distributed to
her along with the lodge in order to make hunting feasible is noted
but not possible if an equitable division is made.” These findings
are supported by the evidence of the parties' respective earning
capacities and their respective existing debt.
In addition, the trial court considered factors set forth in
G.S. § 50-20(c) (2001). Relevant to this assignment of error, the
trial court specifically considered the non-liquid character of the
marital assets.
See N.C. Gen. Stat. § 50-20(c)(9) (2001). The
trial court found that
the various tracts of land which comprise the
marital estate's realty have a much higher
value coupled together rather than as
individual parts. Their value as hunting
parcels is dependent on their cumulative
utility as a large combined preserve.
Therefore, the court finds that even after
dividing the parcels between the parties to
effectuate this division, further sale of
individual tracts to third parties would
likely generate lessened interest and value.
From the record, it appears the trial court endeavored to maximize
the economic values of the respective distributive awards to the
parties, awarding defendant 58% of the marital property including
the lodge and 86.7 acres. We discern no abuse of discretion in the
trial court's decision not to award defendant additional acreage
and defendant's assignment of error to the contrary is overruled.
II.
Defendant next argues the trial court erred by “failing to
consider the date of trial value of all the real property assigned
to the parties in its distribution of assets.” As a result, she
contends, the unequal division in her favor, based upon date of
separation values, is in fact an unequal distribution in
plaintiff's favor when date of distribution values are considered.
Her argument has merit.
In an equitable distribution action, the trial court is
required to provide for an equitable distribution of the parties'
marital property and divisible property. N.C. Gen. Stat. § 50-
20(a). To do so, the court must determine what is marital property
and what is divisible property.
Id. “Marital property” includes
“all real and personal property acquired by either or both spouses
during the course of the marriage and before the date of separation
of the parties, and presently owned . . . .” N.C. Gen. Stat. § 50-
20(b)(1). “Divisible property” includes,
inter alia:
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. While marital property is valued
as of the date of separation, divisible property must be valued as
of the date of distribution. N.C. Gen. Stat. § 50-21(b) (2001).
In the present case, the trial court made findings with
respect to the value of the real property as of the date of
separation, but made no findings with respect to the value of thetracts as of the date of distribution, notwithstanding some
evidence that the values had changed. In so doing, the trial court
failed to identify and determine the value of the divisible
property, i.e., the amount of appreciation or diminution in value,
if any, of the marital property from the date of separation to the
date of distribution. In the absence of such findings, the trial
court could not properly and equitably distribute the divisible
property. Accordingly, we must remand this case to the trial court
in order that it might properly identify, value, and distribute the
parties' divisible property. In so doing, the trial court may find
it necessary to revise its order distributing the parties' marital
property.
III.
Defendant contends the trial court erred by failing to accept
defendant's valuations of personal property owned by the parties.
Defendant has cited no authority for this position and has
presented no argument other than to state, without support, that
the trial court failed to consider her evidence of the values of
the parties' personal property. Defendant refers to the
spreadsheet exhibit attached to the judgment which contains 395
separate line items, yet she does not specifically mention a single
item of personal property which might support her position that the
trial court failed to consider her evidence as to value.
Nevertheless, our comparison of the values listed in the attachment
to the order of equitable distribution with the schedule and
testimony offered by defendant indicates that the trial courtaccepted defendant's valuations for many of the items of personal
property. Defendant's assignment of error is overruled.
IV.
By the final assignment of error brought forward on appeal,
defendant contends the trial court erred by failing to consider, as
a distributional factor, $374,978.00 in post-separation expenses
incurred by her. However, the trial court explicitly considered
this evidence:
22. c. The defendant wife alleges she has
paid or incurred $374,978 in expenses since
the date of separation and this hearing and
that such expenses should be considered by the
court as a distributional factor. The court
finds insufficient credible evidence to
support such findings and therefore the court,
in it's [sic] discretion, gives no weight to
such claim. The court notes that included in
this claim is the defendant's specific
allegation that she incurred $83,323.22 in
automobile related expenses, which the court
finds to be wholly unsupported by any credible
evidence.
Contrary to defendant's argument, the trial court considered
defendant's evidence of post-separation expenses and rejected it as
insufficiently credible to be support for the finding of a
distributional factor. Although the trial court is required to
consider the distributional factors listed in G.S. § 50-20(c) when
distributing marital property, the weight to be given each factor
is within the sound discretion of the trial court.
Friend-Novorska
v. Novorska, 143 N.C. App. 387, 545 S.E.2d 788,
affirmed, 354 N.C.
564, 556 S.E.2d 294 (2001). We discern no abuse of discretion, and
this assignment of error is overruled.
Defendant has presented no argument in support of herremaining assignment of error and it is therefore deemed abandoned.
N.C.R. App. P. 28(b)(6) (2002). For the reasons stated in Part II
above, the equitable distribution order entered in this matter is
remanded for further proceedings consistent with this opinion.
Affirmed in part, remanded in part.
Judges TYSON and THOMAS concur.
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