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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
JO ANN UPCHURCH EMBLER, Plaintiff, v. HENRY JAMES EMBLER,
Filed: 15 July 2003
1. Divorce_equitable distribution_distributive award_findings
An equitable distribution order contained insufficient findings of the source from which
defendant was to pay a distributive award and was remanded. If defendant is to pay the award
from a non-liquid asset or by obtaining a loan, the award must be recalculated to take into
account the financial ramifications.
2. Divorce_equitable distribution_distributional factors_findings insufficient
The trial court's findings about distributional factors in an equitable distribution award
were not detailed enough for appellate review and the order was remanded.
3. Divorce_equitable distribution_pension plan_marital property
The classification of a pension plan as marital property for an equitable distribution award
was upheld. Defendant stipulated that the plan was marital property with a note that the marital
portion was to be appraised, but never introduced evidence of the premarital value of the pension.
Defendant had the burden of showing the portion of the plan that was separate property and
cannot now complain.
Appeal by defendant from judgment entered 7 September 1999 by
Judge James M. Honeycutt in Iredell County District Court. Heard
in the Court of Appeals 10 February 2003.
Rudolf Maher Widenhouse & Fialko, by M. Gordon Widenhouse,
Jr., for plaintiff-appellee.
Anderson Korzen & Associates, P.C., by John J. Korzen, for
Defendant, Henry Embler, appeals from an equitable
distribution judgment, arguing that the trial court erred in: (1)
ordering defendant to pay plaintiff, Jo Ann Embler, a distributive
award of $24,876.00 without making any finding as to the existence
of liquid assets sufficient to pay the award; (2) concluding thatan unequal division of the marital property was equitable and
awarding sixty percent of it to plaintiff; and (3) classifying
defendant's pension plan solely as marital property. We reverse in
part and remand for further findings of fact as to the
distributional factors that the court considered in making the
equitable distribution award and the source of funds from which
defendant is to pay any distributive award.
The detailed facts and procedural history of the case are
found in Embler v. Embler, 143 N.C. App. 162, 545 S.E.2d 259 (2001)
(dismissing appeal as interlocutory). The parties were married in
1976, had one child in 1986, separated in 1993, and divorced in
1996. Plaintiff is a teacher with a master's degree in education
and earns approximately $35,000.00 per year. Defendant is in
management with BellSouth Telecommunications and earns
approximately $69,000.00 annually. In considering the issue of
equitable distribution, the trial court awarded sixty percent of
the marital estate to plaintiff and required defendant to pay a
distributive award of $24,876.00 to plaintiff within sixty days.
Defendant claims that he has no liquid assets from which to pay
this award and would incur penalties if he withdrew the necessary
sums from his retirement account.
When reviewing a trial court's equitable distribution award,
the appellate court's duty is to determine whether the trial court
abused its discretion. White v. White, 312 N.C. 770, 324 S.E.2d
829 (1985). "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 theresult of a reasoned decision." Id. at 777, 324 S.E.2d at 833.
The trial court must, however, make specific findings of fact
regarding each factor specified in N.C. Gen. Stat. § 50-20(c)
(2001) on which the parties offered evidence. Rosario v. Rosario,
139 N.C. App. 258, 260-61, 533 S.E.2d 274, 275-76 (2000). We
believe that the trial court's findings of fact in this case were
 Defendant first argues that the trial court erred in
ordering him to pay plaintiff a distributive award of $24,876.00
without making any finding whether he had sufficient liquid assets
to pay the award. We agree.
This case is analogous to Shaw v. Shaw, 117 N.C. App. 552, 451
S.E.2d 648 (1995). In Shaw, the trial court had ordered the
defendant to pay the plaintiff an $8,360.72 distributive award, but
did not specify a source of funds for that payment. The evidence
suggested that the only asset from which defendant could pay the
distributive award was his thrift plan; yet the evidence also
established that any withdrawal from that plan would result in
harsh tax consequences. This Court remanded the case to the trial
court for a determination whether the defendant had assets, other
than the thrift plan, from which he could make the distributive
award payment. Id. at 555, 451 S.E.2d at 650. If not, then the
trial court was required to either "(1) provide for some other
means by which the defendant [could] pay $8,360.72 to the
plaintiff; or (2) determine the consequences of withdrawing that
amount from the thrift plan and adjust the award from defendant toplaintiff to offset the consequences." Id. See also N.C. Gen.
Stat. § 50-20(c)(9), (11) (in determining whether an equal division
of property is equitable, the court must consider the liquid or
nonliquid character of all marital property and the tax
consequences to each party).
While Mr. Embler's assets are greater than the defendant's in
Shaw, the evidence suggests that those assets are still non-liquid
in nature. Although defendant may in fact be able to pay the
distributive award, defendant's evidence is sufficient to raise the
question of where defendant will obtain the funds to fulfill this
obligation. As in Shaw, the court below ordered defendant to pay
the distributive award without pointing to a source of funds from
which he could do so even though defendant had no obvious liquid
assets. If defendant is ordered to pay the distributive award from
a non-liquid asset or by obtaining a loan, the equitable
distribution award must be recalculated to take into account any
adverse financial ramifications such as adverse tax consequences.
Shaw requires that we remand for further findings as to whether
defendant has assets, other than non-liquid assets, from which he
can make the distributive award payment. If defendant has
insufficient liquid assets, then the trial court must (1) determine
the means by which defendant is to pay the amount; and (2) adjust
the award from defendant to plaintiff to offset any adverse
financial consequences of using the non-liquid assets.
 Defendant next contends that the trial court erred in
concluding that an unequal division of the marital property wasequitable and awarding sixty percent of it to plaintiff. We remand
for further findings on the trial court's consideration of the
In order for this Court to conduct proper appellate review of
an equitable distribution order, the trial court's findings must be
specific enough that the appellate court can determine from
reviewing the record whether the judgment represents a correct
application of the law. Coble v. Coble, 300 N.C. 708, 714, 268
S.E.2d 185, 190 (1980). The trial court must make "specific
findings as to the ultimate facts (rather than the evidentiary
facts) found by the trial court to support its conclusion regarding
equitable distribution . . . ." Rosario, 139 N.C. App. at 260, 533
S.E.2d at 275 (emphasis original). Although the trial court need
not find all possible facts from the evidence before it, "it [is]
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).
More specifically, this Court has held:
[W]hen a party presents evidence which would
allow the trial court to determine that an
equal distribution of the marital assets would
be inequitable, the trial court must then
consider all of the distributional factors
listed in G.S. 50-20(c), Smith v. Smith, 314
N.C. 80, 331 S.E. 2d 682 (1985), and must make
sufficient findings as to each statutory
factor on which evidence was offered.
Locklear v. Locklear, 92 N.C. App. 299, 305-06, 374 S.E.2d 406, 410
(1988). This Court has previously held that a blanket statement
that the trial court considered the distributional factors listedin N.C. Gen. Stat. § 50-20(c) is insufficient as a matter of law.
Rosario, 139 N.C. App. at 262, 533 S.E.2d at 276.
Here, the trial court stated that it "considered the factors
found and noted above in the findings of fact. The Court also
considered the other statutory distributional factors." (Emphasis
added) In its findings of fact, the trial court recited various
contentions of the parties, but found only that (1) the absolute
value of defendant's retirement portfolio greatly exceeds
plaintiff's; (2) defendant's income is nearly double plaintiff's;
(3) the parties are almost the same age and have several more
earning years ahead of them; (4) defendant has more retirement
value accruing after the date of separation than his wife; (5)
defendant paid certain marital debts after marriage; and (6) it is
desirable to divide the estate without having to use a QDRO.
Beyond the trial court's general statement that it "considered the
other statutory distributional factors," the court made no specific
reference to the factors under N.C. Gen. Stat. § 50-20(c). It is,
therefore, impossible to determine whether the trial court found
and relied upon any other statutory factors.
Even the factors expressly considered by the trial court lack
sufficient detail. Although the court mentioned that defendant
paid certain marital debts, the court did not value those debts.
See Byrd v. Owens, 86 N.C. App. 418, 424, 358 S.E.2d 102, 106
(1987) (court must both classify and value debt). In addition,
although the court made findings regarding the value of defendant's
motor vehicles, the court made no finding whether the cars were
liquid or nonliquid assets for purposes of the equitabledistribution division, despite N.C. Gen. Stat. § 50-20(c)(9)'s
requirement that the court consider the "liquid or nonliquid
character of all marital property and divisible property." And,
even though the court found that the estate should be divided
without a QDRO, the trial court made no findings as to how this
should be accomplished or the tax consequences to defendant if he
is required to dip into this retirement. See N.C. Gen. Stat. § 50-
20(c)(11) (requiring consideration of the tax consequences to each
Without sufficient findings as to the § 50-20(c)
distributional factors, we cannot determine whether the trial court
appropriately applied the law in ordering the unequal distribution
of the marital estate. As this Court has previously acknowledged:
We are not unmindful of the heavy caseload in
the state's district courts and realize that
the district court judges do not have the
luxury of spending unlimited time on each
case. We are also aware that, almost without
exception, district court judges provide
considered expertise in a demanding and
complex area of the law where the litigants'
feelings often are inflamed. We are, however,
unable to discharge our appellate
responsibilities unless the trial courts reach
reviewable conclusions of law based upon
findings of fact supported in the record.
Rosario, 139 N.C. App. at 267, 533 S.E.2d at 279.
 Finally, defendant argues that the trial court erred in
classifying his BellSouth pension plan solely as marital property.
The trial court found:
Defendant has a pension plan with BellSouth
with date of separation value of $76,200.00.
The plan had increased in value to $180,557.00
by 1996. Defendant was employed withBellSouth (and contributed to this plan) for
eight (8) years prior to marriage (1968-1976).
The Court will consider this as a
distributional factor (without being able to
determine the exact pre-marital amount).
Our review is "limited to the question whether any
evidence in the record sustains the court's findings." Taylor v.
, 92 N.C. App. 413, 417, 374 S.E.2d 644, 647 (1988) (emphasis
original). The evidence in the record here is sufficient to
sustain the court's finding that the pension plan was marital
Defendant stipulated that the pension plan was marital
property on the equitable distribution form. Even though he
included in a footnote "marital portion to be appraised," he did
not introduce any evidence of the pre-marital value of the pension.
On appeal, defendant suggests that since one-third of defendant's
employment with BellSouth occurred before his marriage, one-third
of the pension should have been separate property. Yet, he offered
no evidence that such a division would accurately reflect the
actual value of the pension plan immediately prior to the marriage.
The court thus had no evidence by which it could accurately
calculate the pre-marital value of the pension. Defendant bore the
burden of showing what portion of the pension was separate property
and cannot now complain because he failed to meet his burden.
Johnson v. Johnson
, 317 N.C. 437, 454, 346 S.E.2d 430, 434 (1986).
We find this assignment of error to be without merit.
Reversed in part and remanded.
Chief Judge EAGLES and Judge MARTIN concur.
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