A decision without a published opinion is authority only in the case in which such decision is rendered and should not be cited in any other case in any court for any other purpose, nor should any court consider any such decision for any purpose except in
the case in which such decision is rendered. See Rule of Appellate Procedure 30 (e)(3).
NO. COA01-548
NORTH CAROLINA COURT OF APPEALS
Filed: 20 August 2002
DANA SEDBERRY QUICK,
Plaintiff
v
.
Richmond County
No. 98 CVD 642
DONALD GLENN QUICK, JR.,
Defendant
Appeal by defendant from order entered 23 October 2000 by
Judge Kevin M. Bridges in Richmond County District Court. Heard in
the Court of Appeals 12 March 2002.
Sharpe & Buckner, PLLC, by Richard G. Buckner, for plaintiff-
appellee.
Drake & Pleasant, by Henry T. Drake, for defendant-appellant.
CAMPBELL, Judge.
Defendant appeals from an order granting an unequal equitable
distribution of the marital estate of the parties. We affirm.
Plaintiff and defendant were married on 12 April 1976. Two
children were born of this marriage, both of whom have now reached
the age of majority. During their marriage, the parties separated
on three occasions: (1) November of 1986 until May of 1987; (2)
September of 1994 until March of 1995; and (3) October of 1996
until March of 1997. The children remained with plaintiff during
each of these separations, and defendant paid no child support.
The parties' final separation occurred on 4 January 1998.
Plaintiff and defendant eventually divorced on 7 January 1999. Both parties properly raised issues regarding equitable
distribution of the marital estate before their divorce was
finalized.
Prior to the equitable distribution hearing, plaintiff and
defendant executed two consent orders, one dated 6 August 1998 and
one dated 4 November 1998. Also, an equitable distribution pre-
trial order was filed on 7 January 1999. In that order, the
parties stipulated that the marital property was to be evaluated as
of 4 January 1998, the parties' last separation date. The pre-
trial order also included separate schedules with stipulations
regarding the parties' marital property, separate property, and
debt (separate and marital).
The equitable distribution hearing took place in the Civil
District Court of Richmond County before Judge Kevin M. Bridges.
The matter came on for hearing on 15 November 1999 and was
completed by further hearings on 2 March 2000. In the court's
equitable distribution order, issued on 23 October 2000, plaintiff
received assets totaling $433.35 and was assigned $26,427.15 in
marital debt, while defendant received assets totaling $39,965.69
and was assigned $29,986.19 in marital debt. To equalize the
distribution difference between the parties, the court also ordered
defendant to pay plaintiff a distributive award of $15,888.21
within ninety days of the order's entry. Defendant appeals.
Defendant brings forth seven assignments of error that raise
issues relating to: (I) the parties' pre-trial order; (II)
statutory factors relevant to equitable distribution; (III) thecourt's classification of certain debts and property; and (IV) the
sufficiency of facts justifying an unequal equitable distribution.
Additional facts necessary for further understanding of these
issues will be presented within the text of this opinion.
I.
The first issue presented to this Court is whether the trial
court erred in admitting testimony relating to the value of the
parties' Ford Aspire (car) that was contrary to the value
recorded in the pre-trial order. Plaintiff and defendant had
previously listed the car on Schedule A of the pre-trial order as
marital property that would be distributed to plaintiff. In this
schedule, the parties listed the car as having a net value of
$5,670.00. However, prior to the trial, plaintiff made a motion to
amend the pre-trial order because the $5,670.00 amount was actually
the car's gross value instead of its net value. Although this
motion was denied, defendant did not object when plaintiff
testified about the mistake at trial. The court eventually found
the car's gross value to be $5,670.00.
In Schedule J of the pre-trial order, plaintiff listed the
debt secured by the car as being $5,665.44. However, during the
trial, plaintiff testified that the debt secured by the car was
actually $8,338.65. Defendant timely objected, but the court
overruled the objection for now. Shortly thereafter, plaintiff
referred to documentation she had received from Ford Motor Credit
and again testified that the debt secured by the car was $8,338.65. At that time, defendant did not renew his objection. On the
contrary, defendant's counsel actually stated to the court: Judge,
I'm not going to object. I'll leave it to cross-examination.
Defendant later testified that he did not know the amount of debt
owed on the car. Ultimately, the secured debt amount was found to
be $8,338.65, resulting in the court concluding that the car's
correct net value was a negative $2,668.65.
In part, our rules of appellate procedure provide:
In order to preserve a question for appellate
review, a party must have presented to the
trial court a timely request, objection or
motion, stating the specific grounds for the
ruling the party desired the court to make if
the specific grounds were not apparent from
the context. . . . Any such question which
was properly preserved for review by action of
counsel taken during the course of proceedings
in the trial tribunal by objection noted or
which by rule or law was deemed preserved or
taken without any such action, may be made the
basis of an assignment of error in the record
on appeal.
N.C. R. App. P. 10(b)(1). Here, defendant did not object at trial
when plaintiff testified that the $5,670.00 amount listed on
Schedule A was mistakenly listed as the net value instead of the
gross value. His inaction resulted in a failure to preserve this
question for appellate review. Furthermore, defendant did not
renew his objection to plaintiff testifying about the actual debt
secured by the car. In fact, defendant decided to waive his right
to object so that he could address the issue on cross-examination.
Thus, the trial court did not err in admitting plaintiff's
testimony regarding the car's value.
II.
The second issue raised by defendant is whether the trial
court erred in not considering all the statutory factors relevant
to the parties' equitable distribution action. In particular,
defendant argues the court did not consider the liquid or non-
liquid character of all the marital property when it ordered him to
make a lump sum distribution to plaintiff.
See N.C. Gen. Stat. §
50-20(c)(9) (2001). We are not persuaded by defendant's argument.
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) (citation omitted). In the case
sub
judice, however, the parties entered into a consent order prior to
the trial in which they stipulated that [i]ssues of debts, tax
consequences, and credits are all to be resolved by the Court, but
other than such factors, the marital property will be divided
equally . . . . In equitable distribution actions, our courts
favor
written stipulations which are duly executed and acknowledged
by the parties.
Fox v. Fox, 114 N.C. App. 125, 132, 441 S.E.2d
613, 618 (1994) (emphasis in original). Although [a] stipulation
is not itself evidence, . . . it 'removes the admitted fact from
the field of evidence by formally conceding its existence.'
Id.
at 133, 441 S.E.2d at 618 (quoting 2 Kenneth S. Broun,
Brandis &
Broun on North Carolina Evidence § 198 (4th ed. 1993)).
The parties in the present case stipulated in their consent
order that certain factors, such as the liquid or non-liquidcharacter of the marital property, would not be considered by the
trial court in rendering its equitable distribution judgment. By
making this stipulation, plaintiff and defendant effectively
removed this factor from the field of evidence. Moreover, the
limited amount of evidence presented to the court which could
arguably relate to this factor was considered in other factors that
were addressed by the court. Thus, we find no abuse of discretion
by the trial court with respect to this issue.
III.
The next issue raised by defendant relates to the court's
classification of certain property and debts as marital property
and debts. Essentially, defendant argues that the court erred when
it found (1) a bedroom suite and a 30-30 Marlin Carbine gun were
marital property and (2) certain debts that defendant claimed were
incurred during the parties' various separation periods,
specifically a $10,057.02 medical bill of plaintiff's, were marital
debts. We disagree.
In an action for equitable distribution, the court must first
classify property as either marital or separate, with only marital
property being subject to equitable distribution. See Loeb v.
Loeb, 72 N.C. App. 205, 208-09, 324 S.E.2d 33, 37 (1985). When
classifying property as marital, [i]t is well-settled law that the
party claiming the property to be marital must meet the burden of
showing by a preponderance of the evidence that the property was
acquired by either spouse or both spouses during the marriage,before the date of separation, and is presently owned. Godley v.
Godley, 110 N.C. App. 99, 108, 429 S.E.2d 382, 388 (1993)
(citations omitted). Additionally, [t]he 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. Geer v. Geer, 84 N.C.
App. 471, 475, 353 S.E.2d 427, 429-30 (1987). Once the trial court
finds as fact that the property or debt is marital property or
debt, that finding is conclusive if supported by any competent
evidence. See Lawing v. Lawing, 81 N.C. App. 159, 162, 344 S.E.2d
100, 104 (1986). The mere existence of conflicting evidence or
discrepancies in evidence will not justify reversal. Id. at 163,
344 S.E.2d at 104.
In the instant case, the parties stipulated on Schedule B of
the pre-trial order that the bedroom suite and gun were to be
classified as marital property. At trial, defendant made no direct
attempt to contradict this stipulation by asserting that these
items were separate property. The argument was not raised by
defendant until this appeal. Therefore, based on the parties'
stipulation, as well as other competent evidence supporting the
trial court's conclusions, the court's classification of these
items as marital property was not erroneous as a matter of law.
Also, with respect to defendant's arguments regarding certain
marital debts, the trial transcript indicates that plaintiff merely
misspoke during her testimony as to the date of the medical bill.
Plaintiff testified that the medical bill was incurred in April of1998 when, in actuality, it was incurred in April of 1997 while the
parties were still living together. Furthermore, the trial
transcript and record indicate that the court closely scrutinized
the other debts questioned by defendant before concluding that they
were marital debts. After having reviewed these other debts, we
find that there was competent evidence to support the court's
conclusion that they were marital debts as well. We therefore
affirm on this issue.
IV.
The final issue presented to this Court is whether the trial
court failed to find sufficient facts to justify an unequal
equitable distribution.
As stated previously, marital property is subject to equitable
distribution.
Loeb v. Loeb, 72 N.C.App. 205, 209, 324 S.E.2d 33,
37 (1985).
Once property is classified as marital property, the
trial court must then divide that property equally unless it
determines that an equal division is inequitable.
White v. White,
312 N.C. 770, 776, 324 S.E.2d 829, 832-33 (1985). This
determination is entirely within the trial court's discretion, and
the trial court's decision in [that] regard can be disturbed only
if a clear abuse of that discretion has occurred. . . .
[A] 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 (1996) (citations omitted). Based on the evidence presented by the parties, the court made
several findings of fact regarding the statutory distributional
factors. These findings included the court's consideration of: (1)
the tax consequences associated with early withdrawal of
defendant's retirement; (2) payments made by each party on the
marital debts after the date of separation; (3) payments made by
defendant to maintain, preserve, develop, or expand the marital
property after the date of separation but before the date of
distribution; (4) insurance and tax payments made by defendant
after the date of separation but before the date of distribution,
and (5) defendant's use of the marital residence, and the
reasonable rental value thereof, during the period after the date
of separation and up until the date of distribution. After
considering these findings, the court concluded that an equal
division of the marital assets was not equitable. In reaching this
conclusion, the trial court was not required to recite in detail
the evidence considered in determining what division of the
property would be considered equitable, it was only required to
make findings sufficient to address the statutory factors and
support the division ordered.
Armstrong v. Armstrong, 322 N.C.
396, 405, 368 S.E.2d 595, 600 (1988). Even though the findings of
fact do not clearly indicate how the distributional factors
mathematically assisted in that division, the court's findings do
adequately support that an unequal equitable distribution of the
martial property is necessary. Moreover, this Court has never held
that a monetary value must be placed on a particular distributionalfactor when awarding an unequal division of marital property. In
fact, [w]e have previously held that the trial court could choose
to give no weight to a distributional factor.
Wall v. Wall, 140
N.C. App. 303, 313, 536 S.E.2d 647, 653 (2000) (citation omitted).
Thus, we conclude that the trial court sufficiently supported its
unequal equitable distribution award.
Accordingly, we hold that the trial court did not err in
ordering an unequal equitable distribution of the marital estate of
the parties.
Affirmed.
Judges GREENE and McGEE concur.
Report per Rule 30(e).
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