In his first assignment of error, defendant argues that the
trial court erred in Finding of Fact #5 by failing to make specific
findings of ultimate facts that were in dispute. Defendant contends
that the trial court merely recited portions of testimony without
resolving the factual contentions of the parties. This argument is
without merit.
Our courts have established several basic principles
pertaining to equitable distribution. N.C. Gen. Stat. § 1A-1, Rule
50-20(j) (1999), governing actions for equitable distribution
provides: “[i]n any order for the distribution of property made
pursuant to this section, the court shall make written findings of
fact that support the determination that the marital property and
divisible property has been equitably divided.” In accordance
with N.C. Gen. Stat. § 1A-1, Rule 52(a), “the trial court's
findings of fact must be more than mere evidentiary facts; they
must be the 'specific ultimate facts . . . sufficient for [an]
appellate court to determine that the judgment is adequately
supported by competent evidence.'”
Williamson v. Williamson, 140
N.C. App. 362, 363-64, 536 S.E.2d 337, 338 (2000)(alteration in
original)(quoting
Montgomery v. Montgomery, 32 N.C. App. 154, 156-
57, 231 S.E.2d 26, 28 (1977)). Therefore,
“while Rule 52(a) does not require a
recitation of the evidentiary and subsidiary
facts required to prove the ultimate facts, it
does require specific findings of the ultimatefacts established by the evidence, admissions,
and stipulations which are determinative of
the questions involved in the action and
essential to support the conclusions of law
reached.”
Id. at 364, 536 S.E.2d at 338 (quoting
Quick v. Quick, 305 N.C.
446, 452, 290 S.E.2d 653, 658 (1982)). “The applicable standard of
review on appeal where, as here, the trial court sits without a
jury, is whether competent evidence exists to support its findings
of fact and whether the conclusions reached were proper in light of
the findings.”
In re Foreclosure of C and M Investments, 123 N.C.
App. 52, 54, 472 S.E.2d 341, 342 (1996),
affirmed in part, reversed
in part, 346 N.C. 127, 484 S.E.2d 546 (1997).
In the instant case, defendant challenges the following
finding of fact determined by the trial court:
5.
That the parties were married to one
another for twenty-nine years and worked
together during that time to accrue all of the
assets that they have and that an equal
distribution is appropriate in this matter.
Both parties worked to maintain and operate
the mobile home parks, lots, and subdivision
subsequent to the date of separation as had
been the custom prior to the separation.
(emphasis added). Evidence was presented that
after the separation the Defendant attempted
to bar the Plaintiff from participating in the
maintenance and operation of the lots, parks,
and subdivision by limiting her access to the
equipment necessary for maintenance and by
keeping such equipment locked and refusing to
make a key or the equipment available to the
Plaintiff. Judicial intervention was
necessary to obtain the equipment for the
Plaintiff's use. Evidence was presented that
the Defendant changed all rental accounts into
his individual name and prevented the
Plaintiff from managing any such accounts even
though she had done so prior to the
separation. The Defendant took control of
all business ledgers and the Plaintiff has notbeen allowed to do any of the bookkeeping or
clerical work. Further evidence was presented
that during the hours the Plaintiff was
working that the Defendant would video tape
the Plaintiff's every movement and the
Defendant testified that he had hours of video
of the Plaintiff while she was present on the
property attempting to work. The Court entered
an Order allotting the Plaintiff hours to be
present and to work at the property and the
Defendant videotaped the Plaintiff during this
time. The Defendant refused the Plaintiff
access to the bathroom facilities during the
time she was present on the property and
attempting to work. Testimony was presented
that the Plaintiff had to borrow equipment
from third parties with which to work because
the equipment was kept locked away from the
Plaintiff.
At all times the Plaintiff was
willing and available to work, but the
Defendant prevented the Plaintiff from doing
some work by refusing Plaintiff access to
equipment, access to the books, and taking
various legal actions to prevent the Plaintiff
from being on the property in question (i.e
criminal charges) and the Plaintiff sought
judicial assistance to secure time to work.
(emphasis added).
Contrary to defendant's assertions, our review of the record
in the instant case, reveals that Finding of Fact #5 definitively
resolved the factual contentions of the parties. Finding of fact
#5 began with an ultimate finding of fact reflecting the trial
court's conscious choice between the conflicting versions of
evidence presented. While the balance of the fifth finding appears
to be a recitation of the evidence presented, the trial court made
sufficient findings of the ultimate facts in dispute that: (1) the
parties were married; (2) the parties worked together for twenty-
nine years in maintaining and operating mobile home parks, lots,
and subdivisions; (3) that an equal division of the marital
property is proper; and (4) both parties worked to maintain theparks subsequent to the date of separation. We hold that this
finding adequately apprises us of the ultimate evidence determined
by the trial court. This assignment of error is therefore
overruled.
In his next assignment of error, defendant contends that the
trial court erred in failing to consider defendant's contentions in
support of an unequal distribution of the marital assets. We
disagree.
“[A]n equal division of marital property is mandatory unless
the trial court determines that an equal division would be
inequitable.”
Armstrong v. Armstrong, 322 N.C. 396, 404, 368 S.E.2d
595, 599 (1988). In determining whether an equal division of
marital property is equitable to the parties, the trial court must
consider the twelve factors set forth in N.C. Gen. Stat. § 50-20(c).
Daetwyler v. Daetwyler, 130 N.C. App. 246, 249, 502 S.E.2d 662, 502
S.E.2d 662, 665 (1998),
disc. review denied, 349 N.C. 528, 526
S.E.2d 174 (1998). Upon consideration of the statutory factors,
“the trial court must make findings of fact showing its due
consideration of the evidence presented by the parties[.]”
Id. The
party desiring an unequal division of property bears the burden of
producing evidence 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.”
White v. White,
312 N.C. 770, 776, 324 S.E.2d 829, 832 (1985). “When a party
introduces evidence of a distributional factor, the trial court must
consider the factor and make a finding of fact with regard to it.”
Freeman v. Freeman, 107 N.C. App. 644, 656, 421 S.E.2d 623, 629
(1992).
“'Although the trial court [is] not required to recite in
detail the evidence considered in determining what division of the
property would be equitable,' ultimately, it is required to make
findings sufficient to address the statutory factors and to support
the division ordered.”
Atkinson v. Chandler, 130 N.C. App. 561,
566, 504 S.E.2d 94, 97 (1998) (alteration in original) (quoting
Armstrong, 322 N.C. at 405, 368 S.E.2d at 600 (1988)). Where a
trial court has considered and made findings as to each of the
specified factors set forth in N.C. Gen. Stat. § 50-20(c), the
“weight given [to] each factor by the trial court must be upheld
absent a showing of an abuse of discretion.”
Friend-Novorska v.
Novorska, 143 N.C. App. 387, 395, 545 S.E.2d 788, 794,
affirmed by,
354 N.C. 564, 556 S.E.2d 294 (2001).
In the instant case, defendant alleges that the trial court did
not properly consider the factors of post-separation contributions
and his health in its equitable distribution judgment.
As to defendant's contention concerning post-separation
contributions and defendant's health, the trial court made the
following pertinent findings of fact:
2. That both parties . . . have participated
in the purchase and development of property
into mobile home parks and a mobile home
subdivision and lots . . . . [B]oth parties
participated in the development of these
properties and both parties expended time and
effort in maintaining and operating these
parks, lots, and subdivision.
. . . .
5. . . . . Both parties worked to maintain and
operate the mobile home parks, lots and
subdivision subsequent to the date of
separation as had been the custom prior to the
separation . . .
6. The Defendant testified that he did the
majority of the work prior to the separation
and after the separation and should be given
credit by receiving an unequal distribution of
property and that it was his opinion that the
split should be 60% to him and 40% to the
Plaintiff but that the Defendant wanted the
Court to order the sale of all property. The
Defendant introduced into evidence logs of the
purported hours he alleges to have worked in
the business subsequent to the date of
separation. Said logs were kept solely by the
Defendant and there was no other evidence
presented concerning the amount of time worked
by the Defendant.
7.
That the Court finds that each and every
one of the parties' contentions as to an
unequal distribution and credits and set offs
have been reviewed and considered by the Court
and there is no credible evidence to support
the same and therefore any prayer for unequal
distribution, or for credits or set offs is
denied. (emphasis added).
In examining the findings made by the trial court, we discern
no abuse of discretion in dividing the property equally. The
evidence shows that the purchase and development of the mobile
homes, parks and lots occurred during the marriage and both parties
contributed in maintaining and operating the property “subsequent
to the date of separation as had been the custom prior to the date
of separation.” Accordingly, we hold that these challenged findings
are supported by competent evidence in the record and that the trial
court properly considered and made sufficient findings regarding
post-separation contributions pursuant to the distributional factorsset forth in N.C. Gen. Stat. § 50-20(c).
Defendant argues that the trial court did not make a specific
finding as to his physical health. Defendant is correct that the
trial court should have made a written finding of fact relative to
the state of defendant's health.
See Wall v. Wall, 140 N.C. App.
303, 312, 536 S.E.2d 647, 653 (2000)(holding that on remand, the
trial court must make written findings of fact based on credible
evidence of defendant's health). However, it is clear from the
trial court's judgment that the court considered all statutory
factors, including defendant's health, in determining that an equal
division was equitable. Furthermore, defendant has failed to
demonstrate how he was prejudiced by the trial court's failure to
make a specific finding regarding his health.
See Crutchfield v.
Crutchfield, 132 N.C. App. 193, 196, 511 S.E.2d 31, 34 (1999)
(holding that the defendant failed to demonstrate any prejudice from
the trial court's failure to make specific findings of fact as to
each distributional factor). We therefore overrule this assignment
of error.
Lastly, defendant argues that the trial court erred in failing
to consider the tax consequences of its equitable distribution
order. We disagree.
Pursuant to N.C. Gen. Stat. § 50-20(11)(1999), when considering
an unequal distribution, the trial court shall consider the tax
consequences to each party in its equitable distribution judgment.
As the party seeking an unequal division of property, “defendant has
the burden of showing that the tax consequences of the distributionwere not properly considered.”
Wall, 140 N.C. App.
at 312, 536
S.E.2d at 653. “The trial court is not required to consider tax
consequences unless the parties offer evidence about them.”
Id.
Our review of the record reveals that the trial court properly
considered the tax consequences of its equitable distribution order.
The record reflects that the trial court made a specific finding as
to the evidence presented by each of the parties' individual
accountants, before making its allocations. In Finding of Fact #13,
the trial court found: “That both the Plaintiff and the Defendant
called as witnesses their individual accountant[s] who testified as
to the tax consequences which would effect [sic] the parties and the
Court considered the evidence presented by each of the accountants
before making the allocations herein contained.” Defendant does not
direct us to any testimony of tax consequences that the trial court
did not consider. Interestingly, we note that defendant argued for
sale of the marital assets, yet his expert witness testified that
the tax consequences resulting from this sale would be substantial.
Clearly, the record reveals that the trial court properly considered
the tax issues and consequences raised by both parties before
distributing the property.
Defendant argues that the trial court failed to indicate the
weight given to the testimony offered by the parties' respective
accountants. However, a trial court is “not required to make
findings revealing the exact weight assigned to any given factor.”
Daetwyler, 130 N.C. App.
at 250, 502 S.E.2d at 665. We therefore
hold that the trial court did not abuse its discretion and properlyconsidered the tax consequences to each party. This assignment of
error is overruled.
Based on the foregoing analysis, we affirm the judgment of the
trial court.
Affirmed.
Judges HUDSON and TYSON concur.
Report per Rule 30(e).
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