VIRGIL DUNCAN,
Plaintiff,
v
.
Iredell County
No. 99 CVD 00014
FRANCES DUNCAN,
Defendant.
Harrell Powell, Jr., for the plaintiff-appellant.
David P. Parker, for the defendant-appellee.
WYNN, Judge.
Following divorce of the marital parties to this action,
Judge James M. Honeycutt ordered an unequal distribution in Frances
Duncan's favor under N.C. Gen. Stat. § 50-20 (1999); Virgil Duncan
appeals. We affirm.
In the pre-trial order, the parties agreed upon the value of
certain items of marital property, but disagreed on the manner of
distribution. Included in this list were two pieces of real estate
in Statesville--one located at 215 Lookout Dam Road and the other
on Ross Catfish Drive. Frances Duncan asserted in the pre-trial
order that she was entitled to an unequal distribution in her favor
under N.C. Gen. Stat. § 50-20(c), enumerating various factors underG.S. § 50-20(c) for the trial court to consider, including:
9. Any other factor which the Court finds to
be just and proper, including, without
limitation, Virgil Duncan's placing title to
property, both tangible and intangible in the
name of his children during the marriage
[while] Frances Duncan was using her money to
purchase marital assets and pay bills.
The trial court made the following relevant findings of fact
in its order:
5. That the Court finds that on or about the
date of separation, the Plaintiff moved out of
the marital residence located at 215 Lookout
Dam Road, Statesville, North Carolina and that
the Defendant has resided in the marital
residence since that date. That the residence
had originally been owned by the Plaintiff and
was his separate property at the time of the
marriage. During the marriage the parties
executed a Deed necessary to convert ownership
of the property to tenancy by the entirety.
The parties also converted ownership of a
tract of land belonging to the Defendant as
her separate property, that being the real
estate located at Ross Catfish Drive,
Statesville, North Carolina, to tenancy by the
entirety. Each of these transactions
constituted a gift to the marital estate.
That the marital residence was rebuilt by the
parties after being destroyed by fire in 1989.
Insurance proceeds were used to rebuild the
Lookout Dam Road residence.
6. Both parcels of land lie near or adjoin
land belonging to the Defendant's family. The
Lookout Dam Road residence is more on the
periphery and the Ross Catfish tract is more
surrounded by the Defendant's relatives. Both
parties testified that they wanted the Lookout
Dam Road property. The Defendant testified
that she is willing to borrow funds or arrange
a distribution of her pension to pay any
difference in value to the Plaintiff.
Plaintiff wants the marital residence because
it is the property he once owned before the
marriage. Plaintiff has been residing with
friends since the date of separation.
Defendant has had control of both parcels ofland. With the other valuations and
distributions being made by the Court, the
distribution to each party would be
substantially uneven (based on an equal
distribution) regardless of how the two
parcels of land are distributed. The Court
finds that the Lookout Dam Road residence
should be distributed to the Defendant and
that the Ross Catfish Drive property should be
distributed to the Plaintiff.
. . .
16. That the Court considered the
Defendant/Wife's contentions for an unequal
distribution listed on the attached Pre-Trial
Order and finds as follows:
#9. As to Defendant/Wife's contention in
number 9, the Court finds that the
Plaintiff/Husband did pursue a pattern of
putting property and money in the hands
of his family during the marriage.
During and after one of the parties'
prior separations, the Plaintiff/Husband
told the Defendant/Wife that he had been
advised by his attorney (not the one
currently representing him) to put
property in the name of another so that
the Defendant/Wife could not get it. The
Plaintiff/Husband used and insured some
vehicles after they were reportedly
transferred to his children. The
Plaintiff/Husband had the camper moved to
a friend's house. He put the 1992 Harley
Davidson M/C in his son's name. He moved
the Honda 4-wheeler to a daughter's house
at the date of separation and claimed it
belonged to a grand-daughter. Most
notably, the Plaintiff/Husband took part
of the proceeds from the sale of a parcel
of marital property (lake property),
approximately $28,000.oo, and put it in a
custodian account at FUNB with himself as
the custodian. He retained, as
custodian, the control of said funds.
The weight assigned to this contention is
great.
. . .
18. That the Court finds that the totalmarital estate is $481,199.00. That the Court
has considered the contentions for an unequal
distribution and finds that the Defendant is
entitled to an unequal distribution. That the
Plaintiff should receive 43.4% of the marital
property and the Defendant should receive
56.6% of the marital property to achieve an
equitable distribution.
The trial court therefore concluded that the distributional factors
weighed in Frances Duncan's favor, such that an unequal
distribution in her favor was equitable. Accordingly, the trial
court distributed 56.6% of the marital estate to her. Furthermore,
the trial court ordered that the Ross Catfish Drive property be
distributed to Virgil Duncan, and the Lookout Dam Road property be
distributed to Frances Duncan.
Virgil Duncan contends that the trial court erred by: (1)
Finding that the Lookout Dam Road residence should be distributed
to Frances Duncan; (2) Finding that the distribution to each party
would be substantially uneven regardless of how the two parcels of
real estate were distributed; (3) Finding that he had pursued a
pattern of placing property and money in the hands of his family
during the marriage, and in assigning great weight to this finding;
(4) Finding that Frances Duncan was entitled to an unequal
distribution of the marital estate; (5) Concluding that the
distributional factors under G.S. § 50-20(c) weighed in Frances
Duncan's favor such that an unequal distribution in her favor would
be equitable; (6) Ordering an unequal distribution in Frances
Duncan's favor; and (7) Ordering that Frances Duncan be the sole
owner of the Lookout Dam Road property, and ordering that he be the
sole owner of the Ross Catfish Drive property. With each of thesecontentions, we disagree.
Under G.S. § 50-20(c), the trial court must equally divide
marital property unless it determines that an equal division would
not be equitable, in which case it must divide the marital property
equitably, considering various enumerated factors. See, e.g.,
Smith v. Smith, 314 N.C. 80, 331 S.E.2d 682 (1985). The party
seeking an unequal division of marital assets bears the burden of
proving by a preponderance of the evidence that an equal division
is not equitable. See Hall v. Hall, 88 N.C. App. 297, 363 S.E.2d
189 (1987). G.S. § 50-20(c) vests the trial court with discretion
in distributing marital property, and our review is therefore
limited to determining whether there was a clear abuse of
discretion. See White v. White, 312 N.C. 770, 324 S.E.2d 829
(1985). “A trial court may be reversed for abuse of discretion
only upon a showing that its actions are manifestly unsupported by
reason.” Id. at 777, 324 S.E.2d at 833.
A finding by the trial court that a single factor is
sufficient to support an unequal distribution, if supported by the
evidence, is within the trial court's discretion and will be upheld
on appeal. See Shoffner v. Shoffner, 91 N.C. App. 399, 371 S.E.2d
749 (1988). Misconduct by one of the parties during the marriage
which dissipates or reduces the value of the marital estate for
non-marital purposes (such as conveying marital assets in
contemplation of divorce) may properly be considered under G.S. §
50-20(c), as it is consonant with the essential philosophy of
equitable distribution. See Smith. Furthermore, this Court hasheld that a spouse's exclusive use of the marital residence
subsequent to the date of separation is a relevant distributional
factor under this section. See Burnett v. Burnett, 122 N.C. App.
712, 471 S.E.2d 649 (1996).
In the instant case, the trial court properly considered the
distributional factors under G.S. § 50-20(c), finding that Virgil
Duncan had committed misconduct during the marriage which affected
the value of the marital estate, thereby justifying an unequal
distribution in Frances Duncan's favor. Additionally, the trial
court found that Frances Duncan had resided in the marital
residence at 215 Lookout Dam Road since the parties' separation,
justifying the distribution of the marital residence to her. The
trial court's challenged findings are supported by competent
evidence in the record, and are therefore binding on appeal. See
Hall, 88 N.C. App. at 305, 363 S.E.2d at 194. Furthermore, those
findings support the trial court's conclusions of law. Virgil
Duncan has failed to show any abuse of discretion by the trial
court. The trial court's 25 October 2000 order is therefore,
Affirmed.
Judges TIMMONS-GOODSON and TYSON concur.
Report per Rule 30(e).
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