KELSEY RUE KEFFER,
Plaintiff,
v
.
New Hanover County
No. 98 CVD 3112
MICHAEL JOSEPH KEFFER,
Defendant.
Lea, Clyburn & Rhine, by James W. Lea, III, for plaintiff-
appellee.
Johnson & Lambeth, by Carter T. Lambeth and Maynard M. Brown,
for defendant-appellant.
HUDSON, Judge.
Defendant appeals an equitable distribution order entered on
3 October 2000. Defendant contests the trial court's
classification and distribution of five items as marital property:
a Centura Bank certificate of deposit (the “CD”), a Boston Whaler
boat and trailer (the “boat”), a 1995 Jeep Cherokee (the “Jeep”),
a 1965 Jaguar automobile (the “Jaguar”), and a 1998 Dodge Pickup
(the “Dodge”). We affirm the trial court's order.
Plaintiff and defendant married 13 September 1986 and resided
in North Carolina for the duration of their marriage. They had two
children, born in 1991 and 1992, and separated in the spring of
1998. Plaintiff filed for divorce in August 1998. The court heardthe parties' equitable distribution matter on 13 January 2000 and
the trial court issued an “Order on Equitable Distribution” 2
October 2000. The court then corrected a clerical error in the
Order, and filed an Amended Order on 8 December 2000. Defendant
filed a Notice of Appeal alleging that the trial court erred in
classifying and distributing the five items listed above as marital
property.
The standard of review for equitable
distribution awards is set forth in White v.
White, 312 N.C. 770, 777, 324 S.E.2d 829, 833
(1985):
“Historically our trial courts have
been granted wide discretionary powers
concerning domestic law cases. . . .
It is well established that where
matters are left to the discretion of the
trial court, appellate review is limited
to a determination of whether there was a
clear abuse of discretion. A trial court
may be reversed for abuse of discretion
only upon a showing that its actions are
manifestly unsupported by reason. A
ruling committed to a trial court's
discretion is to be accorded great
deference and will be upset only upon a
showing that it was so arbitrary that it
could not have been the result of a
reasoned decision.” [sic]
Munn v. Munn, 112 N.C. App. 151, 155-56, 435 S.E.2d 74, 77 (1993)
(quoting White, 312 N.C. at 777, 324 S.E.2d at 833) (internal
citations omitted). We apply the abuse of discretion standard here
in our review of the trial court's Amended Order.
N. C. Gen. Stat. § 50-20(b)(1) (1999) defines “Marital
property” as “all real and personal property acquired by either
spouse or both spouses during the course of the marriage and before
the date of the separation of the parties, and presently owned . .. . It is presumed that all property acquired after the date of
marriage and before the date of separation is marital property
except property which is separate property under subdivision (2) of
this subsection. This presumption may be rebutted by the greater
weight of the evidence.” In Loeb v. Loeb, 72 N.C. App. 205, 209-
10, 324 S.E.2d 33, 38, cert. denied, 313 N.C. 508, 329 S.E.2d 393
(1985), this Court held that N.C.G.S. § 50-20
creates a presumption that all property
acquired by the parties during the course of
the marriage is “marital property”. . . The
“marital property” presumption may, therefore,
be rebutted by clear, cogent, and convincing
evidence that the property comes within the
“separate property” definition. The burden of
proof necessarily falls on the party claiming
the “separate property.”
(internal citations and quotations omitted). Here, defendant is
contending that the five items at issue were wrongly classified by
the trial judge as marital property and should be re-classified as
his separate property. Therefore, defendant has the burden of
proof in rebutting the presumption that these five items, which
were acquired by the couple during their marriage, are marital
property; defendant must present “clear, cogent, and convincing
evidence” that the five items are his separate property. Id.
Defendant contends that all five items at issue are his
separate property because they were purchased with money given to
him by his parents as his separate property. “Separate property”
is defined in N.C.G.S. § 50-20(b)(2) as “all real and personal
property acquired by a spouse before marriage or acquired by a
spouse by bequest, devise, descent, or gift during the course ofthe marriage.” In Loeb, the Court noted that “the legislature
intended to exclude from the definition of 'separate property' a
gift of property to both parties from a third party during the
course of the marriage.” 72 N.C. App. at 210, 324 S.E.2d at 38.
Here, the testimony, including that of defendant, indicates that
the money was given and held as a gift to the marriage. Plaintiff
and defendant testified that defendant's parents gave plaintiff
three checks during 1996 totaling $239,999.90, in addition to cash
gifts at Christmas time to both parties, which defendant deposited
in the parties' joint account. The parties spent portions of that
money on family purchases, including the boat, the CD, the Jeep,
the Jaguar, the Dodge, renovations to a rental property, as well as
other family expenses. Defendant described how he and plaintiff
made purchases and managed their bank accounts during cross-
examination:
Q Okay, so you were in charge of where
the money went, where it was placed and what
checks were written out of the accounts?
A On the larger items, yes.
Q Okay, so when the Church Street
[rental property] was bought you made the
decision about having the title on that
property, was that correct?
A No, that was a joint decision.
Q Joint decision, and y'all decided to
title it in both your names?
A Yes.
Q Same thing with Shoemaker [Lane
property]?
A Yes.
Q Same thing with the money that you
got from your parents you say back in 1996
that you put into a joint account, is that
correct? You didn't try to earmark that money
in any way, you put it into an account for you
and [plaintiff].
A Right. Q And then you bought things for you
and [plaintiff] out of it, is that correct?
A Yes.
. . .
Q When [a bank official] wrote your
mortgage company and said [defendant and
plaintiff] received $253,556 last year in
gifts from [defendant's parents], that's how
you looked at it, is that correct? That's
money that was going to you and [plaintiff]?
A Sure.
Q And it was going to y'all to buy
homes, and buy cars and help with monthly
expenses and do things in the marriage,
correct?
A Yes, sir.
Thus, defendant acknowledged having treated the money as a gift to
the marriage, rather than to him separately.
If the money given by defendant's parents was marital
property, then the items purchased with that money for their family
were also marital property. See N.C.G.S. § 50-20(b)(1). Defendant
conceded in his testimony that he and plaintiff used the money
given by his parents to purchase items jointly and to “do things in
the marriage.” Defendant made no effort to keep the money given by
his parents separate from the marital property. Defendant admitted
during cross-examination that the gifts from his parents were for
both himself and plaintiff, and that he used them as such.
As indicated in the testimony at trial, the parties purchased
the CD, the boat, the Jeep, the Dodge, and the Jaguar with the
money defendant's parents gave them in 1996. Because these funds
were marital property, these five items are marital property, and
were properly classified and distributed as such by the trial
court. The court did not err in concluding that defendant failed
to rebut the presumption that these five items acquired during themarriage are marital property. See Loeb, 72 N.C. App. at 209-10,
324 S.E.2d at 38. Nor has defendant demonstrated that the trial
court abused its discretion in classifying and distributing these
items as marital property. See Munn, 112 N.C. App. at 155-56, 435
S.E.2d at 77.
Affirmed.
Judges WYNN and THOMAS concur.
Report per Rule 30(e).
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