Thompson v Thompson, 149 NC App 979 (01-513) 05/07/2002

Appeal by plaintiff from order entered 20 October 2000 by Judge Joseph Williams in Stanly County District Court. Heard in the Court of Appeals 14 February 2002.

    Henry T. Drake for plaintiff-appellant.

    Currie Law Office, by Lisa W. Currie, for defendant-appellee.

    MARTIN, Judge.

    Plaintiff, Malinda Lee Thompson, appeals from an equitable distribution judgment awarding an unequal division of the marital estate in favor of defendant, Terry Lee Thompson.
    Plaintiff and defendant were married on 23 November 1980 and separated on 20 March 1998. Two children were born of the marriage, Dustin Lee Thompson, born 2 November 1981, and Kimberly Brook Thompson, born 13 June 1984. At the time of distribution, plaintiff had custody of the parties' minor child, Kimberly.
    The parties, their attorneys, and the presiding judge signed an equitable distribution pre-trial order on 20 August 1999 in which the parties agreed with regard to certain issues. The equitable distribution hearing proceeded with respect to thoseissues not resolved in the pre-trial order and the court heard extensive evidence concerning the classification and valuation of the parties' property, and distributional factors. We will summarize the evidence only as necessary in our discussion of the issues raised by this appeal.

    Plaintiff first contends the trial court erred in failing to admit evidence of certain bank accounts in defendant's name that existed at the time of the parties' separation. Although plaintiff lists several transcript pages as reflecting the bank accounts to which she is referring, she does not specifically identify the bank records she contends the trial court should have admitted. In fact, some of the transcript pages listed in plaintiff's brief do not even pertain to bank accounts, and the remaining pages deal with custodial accounts in defendant's name held for the benefit of the parties' two minor children. We presume the custodial accounts are the subject of plaintiff's argument.
    The transcript of the equitable distribution hearing discloses that defendant's objections to the admission of the custodial accounts were sustained by the trial judge. Notwithstanding his exclusion of the evidence, however, the trial judge made the following finding of fact:
        On the date of separation, the defendant had in his possession two bank accounts belonging to the minor children of the parties, one being in Kim's name with $1050.51 in the account, and the other in the name of Dustin, having the value of $1731.54 with a balance of [$]729.29 as of 12/23/99.
It appears, therefore, that even if these accounts were in defendant's name, they were the property of the children and, therefore, were not subject to distribution under G.S. § 50-20. Thus, the exclusion or admission of these accounts would make no difference in the overall distribution of the marital estate and plaintiff has shown no prejudice from the trial court's ruling. This assignment of error is overruled.

    Plaintiff next contends that the trial court erred in finding that certain debts were marital debts because such findings were contrary to the evidence. We are unpersuaded.
    In equitable distribution actions, “the trial court is required to classify, value and distribute, if marital, the debts of the parties to the marriage.” Miller v. Miller, 97 N.C. App. 77, 79, 387 S.E.2d 181, 183 (1990). Marital debts are those “incurred during the marriage and before the date of separation, by either spouse or both spouses for the joint benefit of the parties.” Huguelet v. Huguelet, 113 N.C. App. 533, 536, 439 S.E.2d 208, 210, disc. review denied, 336 N.C. 605, 447 S.E.2d 392 (1994). The party who claims that a debt is marital has the burden of proof. Byrd v. Owens, 86 N.C. App. 418, 358 S.E.2d 102 (1987). “In equitable distribution, findings by the trial court are binding on the appellate court when supported by competent evidence.” Edwards v. Edwards, 110 N.C. App. 1, 10, 428 S.E.2d 834, 838, cert. denied, 335 N.C. 172, 436 S.E.2d 374 (1993).
    Plaintiff specifically argues that the debt incurred by abusiness owned by defendant and his father due to penalties from the Internal Revenue Service (I.R.S.) was improperly classified as marital debt. We disagree. The evidence showed that defendant and his father owned and operated a sewing business, “Sew Big,” for approximately four years from 1992 to 1996, when it went out of business. “Sew Big” was penalized by the I.R.S. because it had failed to withhold or report its employees' taxes. The evidence further showed that plaintiff and defendant worked in this business full time during its operation, plaintiff was paid more than defendant, and during its years of operation, the business provided the only source of income for the parties' family. Additionally, plaintiff had supervisory responsibilities while working for “Sew Big.” Since the evidence showed that the profits from the business were for the joint benefit of the parties during the marriage, we conclude that the trial court did not err in classifying the I.R.S. debt as marital debt and distributing it.
    Defendant next contends that since the trial court gave a 1998 Honda Passport, distributed to defendant, a value of $0.00 as of the date of separation, the trial court erred in distributing the debt (Barnette Bank debt) associated with that vehicle. We disagree.
    After classifying property as marital or separate property of one spouse, the trial court must assign a net value to each item of marital property. Khajanchi v. Khajanchi, 140 N.C. App. 552, 537 S.E.2d 845 (2000). The net value is calculated by considering the “market value, if any, less the amount of any encumbrance servingto offset or reduce market value.” Alexander v. Alexander, 68 N.C. App. 548, 551, 315 S.E.2d 772, 775 (1984). Then the court must distribute the marital property and debts in an equitable manner between the parties. Id.
    In this case the parties agreed in their pre-trial order that the net value of the 1998 Honda Passport was $0.00 because of the attached Barnette Bank debt. The trial court distributed both the vehicle and the Barnette Bank debt ($22,601.25) to defendant. We find that the trial court correctly assigned a net value of $0.00 to the vehicle and properly distributed the vehicle and the attached debt to defendant.
    Plaintiff lists several additional exceptions under her assignment of error pertaining to the trial court's classification of certain debts as marital. However, plaintiff has failed to discuss these issues in her brief and therefore they are deemed abandoned. N.C.R. App. P. 28(a).

Plaintiff also assigns error to the trial court's classification of certain medical bills as separate debts. However, we are unable to determine from the record on appeal exactly what services were provided in connection with most of the medical debts listed in the trial court's order. The testimony with regard to the Stanly Memorial Hospital bills and a Stanly Anesthesia bill refers to several exhibits which the record does not include. Therefore, we are unable to review plaintiff's assignment of error pertaining to these medical debts. Theappellant is responsible for properly preparing the record on appeal. Tucker v. General Tel. Co. of the Southeast, 50 N.C. App. 112, 272 S.E.2d 911 (1980).
We will however, review the trial court's classification of a medical bill from Dr. Lerner as plaintiff's separate debt. This bill was incurred by plaintiff for a tonsillectomy. The determinative issue is whether plaintiff met her burden of showing that this medical debt was for the joint benefit of the parties. See Byrd, 86 N.C. App. 418, 358 S.E.2d 102. The evidence showed that plaintiff worked up until the time of her surgery and missed only a week of work to recuperate from the procedure. Plaintiff testified that her tonsillectomy eliminated her problems with sore throats and she therefore missed less work due to sore throats subsequent to her surgery. We conclude that the trial court did not abuse its discretion in finding that plaintiff's medical bill from Dr. Lerner for a tonsillectomy was a separate debt. See Becker v. Becker, 127 N.C. App. 409, 489 S.E.2d 909 (1997) (holding trial court did not err in classifying bill for defendant's dental work as separate debt). This finding was supported by competent evidence therefore, it will not be disturbed.

Plaintiff also contends that the trial court erred in classifying certain attorney's fees as separate debt. Plaintiff hired an attorney to sue Wal-Mart for her injury arising from a slip-and-fall which occurred during the marriage. A trial court dismissed plaintiff's case against Wal-Mart at the close of her evidence. When an itemized statement from the attorney who handled plaintiff's personal injury case was offered into evidence by plaintiff, defendant objected and noted that plaintiff had not listed that debt on the pre-trial order. Plaintiff then asserted that she was introducing the bill for attorney's fees for the trial court to consider as a distributional factor, and the trial court received it for that limited purpose. Therefore, we overrule this assignment of error. See Hamby v. Hamby, 143 N.C. App. 635, 547 S.E.2d 110, disc. review denied, 354 N.C. 69, 553 S.E.2d 39 (2001) (holding husband bound by pre-trial agreement in equitable distribution case).

    Finally, plaintiff argues that the trial court erred in failing to find facts and make conclusions of law sufficient to divide the marital estate unequally. We disagree.
    A trial court is required to make written findings of fact in all equitable distribution cases, regardless of whether the marital property is divided equally or unequally. Armstrong v. Armstrong, 322 N.C. 396, 368 S.E.2d 595 (1988); N.C. Gen. Stat. § 50-20(j). “The party seeking an unequal division bears the burden of showing, by a preponderance of evidence, that an equal division would not be equitable.” Armstrong, 322 N.C. at 404, 368 S.E.2d at 599. Additionally, an equal division of marital property is mandatory unless the trial court determines that an equal division would be inequitable. White v. White, 312 N.C. 770, 324 S.E.2d 829 (1985). Trial courts have discretion to distribute marital property and theexercise of that discretion will not be upset unless there is clear abuse. Beightol v. Beightol, 90 N.C. App. 58, 60, 367 S.E.2d 347, 348, disc. review denied, 323 N.C. 171, 373 S.E.2d 104 (1988). “In order to reverse the trial court's decision for abuse of discretion, we must find that the decision was unsupported by reason and could not have been the result of a competent inquiry.” Id. G.S. § 50-20(c) provides twelve factors the trial court must consider when determining the equitable distribution of marital and divisible property. “[T]he trial court must make findings of fact under section 50-20 regarding any of the factors for which evidence is introduced at trial.” Friend-Novorska v. Novorska, 143 N.C. App. 387, 395, 545 S.E.2d 788, 794, affirmed, 354 N.C. 564, 556 S.E.2d 294 (2001). However, the trial court is not required to specifically state the weight given each of these factors to support its determination that an equitable distribution has been made. Id. Further, the trial court has discretion to determine the weight assigned to each factor. Id.
    The trial court in the case sub judice made extensive findings of fact with regard to distributional factors. Plaintiff does not point to any factor with respect to which evidence was offered and no finding was made. Plaintiff contends that the court did not make ultimate findings of fact particularized to the case at bar. However, we find that the trial judge made ultimate findings of fact with regard to each distributional factor listed in G.S. § 50- 20(c) for which evidence was introduced. Plaintiff also argues that the trial court erred in failing to list the percentages ofweight given to each distributional factor. As stated earlier, to do so is not required. Friend-Novorska, 143 N.C. App. 387, 545 S.E.2d 788.
    The judgment of the trial court is affirmed.
    Affirmed.
    Judges HUDSON and CAMPBELL concur.
    Report per Rule 30(e).

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