Appeal by defendant from order entered 11 December 2001 by
Judge C. Thomas Edwards in District Court, Catawba County. Heard
in the Court of Appeals 30 January 2003.
No brief for plaintiff-appellee.
Wesley E. Starnes for defendant-appellant.
McGEE, Judge.
Robert Scott Henderson (plaintiff) and Sherry S. Henderson
(defendant) were married on 3 October 1981 and separated 25 August
1998. Plaintiff filed a complaint for equitable distribution on 3
August 1998. Defendant filed an answer and counterclaim for
equitable distribution, alimony, and post-separation support.
Plaintiff filed a motion to dismiss defendant's counterclaim
pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(6), which the trial
court denied following a hearing on 20 October 1998. Plaintiff
moved for interim allocation of marital assets and sought an
injunction against defendant to prohibit defendant from wasting or
disposing of marital assets. Plaintiff filed his response to
defendant's counterclaim on 9 November 1998. The parties enteredinto a temporary memorandum of judgment as to plaintiff's motion
for interim allocation and injunctive relief on 10 November 1998.
Plaintiff filed an amended reply to defendant's counterclaim
for alimony on 24 November 1998. Plaintiff filed his equitable
distribution affidavit on 21 January 1999 and an addendum on 29
March 1999. Defendant filed her equitable distribution affidavit
on 19 April 1999.
Plaintiff again moved for an interim allocation of marital
assets on 28 April 1999. Plaintiff filed a supplemental equitable
distribution affidavit on 2 July 1999. The trial court filed a
pre-trial order for equitable distribution on 14 December 1999.
Defendant filed a notice of voluntary dismissal of her alimony
claim and represented herself at the 3 April 2001 hearing on
divorce and equitable distribution. The trial court entered a
judgment granting plaintiff an absolute divorce on 24 April 2001
and entered an equitable distribution order on 11 December 2001.
Defendant appeals from the equitable distribution order.
I.
Defendant assigns as error the finding by the trial court that
plaintiff's medical bills with Viewmont Urology, Catawba County
Ambulance, and Unifour Anesthesia were marital debts. "A marital
debt . . . is one 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 any debt is maritalbears the burden of proof on that issue.'"
Riggs v. Riggs, 124
N.C. App. 647, 652, 478 S.E.2d 211, 214 (1996),
disc. review
denied, 345 N.C. 755, 485 S.E.2d 297 (1997) (quoting
Tucker v.
Miller, 113 N.C. App. 785, 791, 440 S.E.2d 315, 319 (1994)).
Defendant argues that plaintiff did not meet his burden of
showing that the challenged medical bills were "for the joint
benefit of the parties." Our Court held in
Becker v. Becker, 127
N.C. App. 409, 489 S.E.2d 909 (1997), that the defendant did not
meet his burden of showing that the dental debt incurred was a
marital debt and we stated that "the evidence that the debt was for
work performed on [the] defendant and that the bill was in [the]
defendant's name was sufficient to show the debt was incurred for
[the] defendant's benefit only rather than for the joint benefit of
the parties."
Id. at 415, 489 S.E.2d at 913-14. We noted in
Becker that the "defendant presented no evidence tending to show
the debt was incurred for the parties' joint benefit."
Id.;
see
also Riggs, 124 N.C. App. at 652, 478 S.E.2d at 214 (refusing to
classify credit card debt as marital debt where there was no
competent evidence in the record that the debt was for the joint
benefit of the parties).
The only evidence offered by plaintiff concerning the Viewmont
Urology bill was plaintiff's testimony:
Q. Viewmont Urology, who was that for?
A. That was--that was for me.
Q. And what was that?
A. That was--
Q. Was that before you separated?
A. Yes, sir.
Q. And what was that incurred for?
A. That was a kidney stone operation.
Q. Okay. Was there any insurance to cover
that?
A. No, sir.
Q. Was that like some emergency you had to
go in and have it operated on, or was
that just something you saw over time you
needed operating--
A. I went in for emergency, and then this a
[sic] urology thing was recommended
after.
Q. And whose name was that in?
A. That's in my name.
Q. Is that still owed?
A. Yes, sir.
Q. Is that what you owe, $4,670?
A. I'm not real sure exactly the number on
that one.
Q. Have you paid any money on it?
A. No, not on that particular one, no.
Q. So the full amount is still owed then?
A. Yes, sir.
Plaintiff's testimony tends to establish only that the debt
was incurred during the marriage, that the debt was in his name,
and the debt was for work done upon plaintiff. As in
Becker and
Riggs, we note that plaintiff has presented no evidence that the
debt was for the joint benefit of the parties. While medical billsincurred by one spouse during a marriage could be for the joint
benefit of the parties, in the present case plaintiff failed to
meet his burden of introducing evidence showing a joint benefit.
Plaintiff's evidence concerning the Catawba County Ambulance
bill consisted solely of the following testimony:
Q. And again, this is [a] listing [of]
debts. The first one on that sheet is a
Catawba County [A]mbulance.
A. Yes, sir.
Q. Do you know if that has been paid or--
A. It has not.
Q. And who--who was that incurred for?
A. That was for me.
Q. For you?
A. Uh-huh.
[Q.] Okay. And that is just a bill you hadn't
paid yet; is that correct?
A. Correct.
Q. Do you get notices from them?
A. Not anymore, no.
As to the Unifour Anesthesia bill, plaintiff's evidence
consisted of the following testimony:
Q. . . . . Unifour Anesthesia, who is that
for?
A. That's for me, also.
. . .
Q. Unifour Anesthesia?
A. That was--that's also in the same group.
Q. That was on the kidney stone?
A. Yes, sir.
. . .
Q. Okay. And has that been under your name?
A. Yes.
This testimony similarly fails to meet plaintiff's burden of
producing evidence tending to show that either of these debts were
incurred for the joint benefit of the parties.
See Becker, 127
N.C. App. at 415, 489 S.E.2d at 913-14;
Riggs, 124 N.C. App. at
652, 478 S.E.2d at 214. In fact, plaintiff's own statement was
that these debts were incurred for him. The trial court erred in
classifying the Viewmont Urology, the Catawba County Ambulance, and
the Unifour Anesthesia bills as marital debts. We remand this case
to the trial court with instructions to properly classify these
three debts as plaintiff's separate debt and to enter a new
equitable distribution order reflecting this classification.
II.
In defendant's third assignment of error she contends that the
trial court erred when it relied upon testimony by plaintiff as to
the value of property when plaintiff's testimony was merely a
guess. "The subjective opinions of the owner of property as to its
value are admissible and competent."
Patterson v. Patterson, 81
N.C. App. 255, 261, 343 S.E.2d 595, 600 (1986) (citation omitted).
It is well established that "'[a] non-expert witness who has
knowledge of value gained from experience, information, and
observation may give his opinion of the value of personalproperty.'"
Maintenance Equipment Co. v. Godley Builders, 107 N.C.
App. 343, 355, 420 S.E.2d 199, 206 (1992),
disc. review denied, 333
N.C. 345, 426 S.E.2d 707 (1993) (quoting
Williams v. Hyatt
Chrysler-Plymouth, Inc., 48 N.C. App. 308, 317, 269 S.E.2d 184,
190,
disc. review denied, 301 N.C. 406, 273 S.E.2d 451 (1980));
see
also Allen v. Allen, 61 N.C. App. 716, 720, 301 S.E.2d 514, 516-17
(1983) (allowing husband to testify as to the value of personal
property where he had knowledge of and familiarity with the items
through ownership);
Whitman v. Forbes, 55 N.C. App. 706, 711, 286
S.E.2d 889, 892 (1982) (noting that lay opinions as to value are
admissible if witness has knowledge and a basis for his opinion).
"Any weight to be given to the opinion is for the trier-of-fact to
determine."
State v. Cobb, 150 N.C. App. 31, 36, 563 S.E.2d 600,
605,
disc. review denied, 356 N.C. 169, 568 S.E.2d 618 (2002)
(citations omitted).
Our review of the record and transcript shows that the trial
court correctly admitted plaintiff's testimony as to the value of
the parties' personal property. All of the items in question were
owned by the parties during their marriage, and plaintiff was able
to show a familiarity with each item. While plaintiff was more
familiar with some items than others, he still established a basis
to give his opinion as to the value of the personal property. The
trier-of-fact correctly considered the testimony and determined the
weight it should be given.
Cobb, 150 N.C. App. at 36, 563 S.E.2d
at 605.
Defendant's argument is without merit and this assignment
of error is overruled.
III.
In defendant's fourth assignment of error she contends that
the findings of fact are not supported by competent evidence
because the trial court should not have considered the testimony by
plaintiff as to the value of various items of personal property.
In light of our ruling on defendant's third assignment of error,
that it was proper for the trial court to consider plaintiff's
testimony, defendant's fourth assignment of error is overruled.
IV.
In defendant's fifth assignment of error she argues that the
findings of fact and conclusions of law are insufficient to support
the trial court's order. Defendant specifically challenges the
trial court's unequal division of the marital property, arguing
that the trial court did not make sufficient findings of fact to
support its decision. In
Khajanchi v. Khajanchi, 140 N.C. App.
552, 537 S.E.2d 845 (2000), this Court stated:
The North Carolina Equitable Distribution
Act is "a legislative enactment of public
policy so strongly favoring the equal division
of marital property that an equal division is
made
mandatory 'unless the court determines
that an equal division is not equitable.'
N.C.G.S. 50-20(c). The clear intent of the
legislature was that a party desiring an
unequal division of marital property bear the
burden of producing evidence concerning one or
more of the twelve factors in the statute and
the burden of proving by a preponderance of
the evidence that an equal division would not
be equitable. Therefore, if no evidence is
admitted tending to show that an equal
division would be inequitable, the trial court
must divide the marital property equally."
Id. at 557-58, 537 S.E.2d at 849 (quoting
White v. White, 312 N.C.
770, 776-77, 324 S.E.2d 829, 832-33 (1985)).
While the party seeking an unequal distribution bears the
burden of proving the required statutory factors, the trial court
can divide the property unequally on the basis of a single
statutory factor.
Id. at 558, 537 S.E.2d at 849;
Patterson, 81
N.C. App. at 259-60, 343 S.E.2d at 599.
A trial court's decision
to make an unequal distribution of the marital property will only
be overturned upon a showing of abuse of discretion.
Khajanchi,
140 N.C. App. at 558, 537 S.E.2d at 849-50.
However, "[i]f the
trial court divides property unequally, it must make findings of
fact based on the evidence in support of its conclusion that an
equal division would not be equitable."
Id. at 558, 537 S.E.2d at
849.
The trial court must list the distributional factor or factors
which "are supported by the evidence and which justify an unequal
distribution."
Patterson, 81 N.C. App. at 259-60, 343 S.E.2d at
599 (citation omitted). In the present case, the trial court
listed several factors appropriate to justify an unequal
distribution. The pertinent part of the 11 December 2001 equitable
distribution order states:
20. The Court has considered the
following post Date of Separation costs of the
Plaintiff and the Defendant to preserve
martial [sic]/maintain marital assets as post
date of separation payments of marital debts:
A. The Plaintiff and the Defendant paid
1/2 the taxes associated with the real
property for 1998 and 1999. The property
taxes were Three Hundred Forty and 00/100($340.00) Dollars per year. The Plaintiff and
the Defendant also paid one-half (1/2) the
Homeowners Insurance on the real property
since the parties separated, with his one-half
(1/2) being One Hundred Twenty-Seven and
00/100 ($127.00) Dollars per year.
B. Eighty-Five Hundred and 00/100
($8,500.00) Dollars was paid to Douglas and
Sons from the balance of the proceeds of the
Seventy-Eight Thousand and 00/100 ($78,000.00)
Dollar refinance in March of 1998. The
defendant paid the balance of the moneys owed
to Douglas and Sons after the parties
separated, with the balance being One Thousand
Five Hundred and 00/100 ($1,500.00) Dollars.
C. That before the parties separated the
Plaintiff incurred medical bills for kidney
stones, and associated surgery. As of the
date of separation, the Plaintiff owed, and
still owes, Four Thousand Six Hundred Seventy
and 00/100 ($4,670.00) Dollars to Viewmont
Urology, Eight Thousand Seven Hundred and
Sixty-One and 00/100 ($8,761.00) Dollars to
Frye Regional Medical Center, Two Hundred
Seventy-Five and 00/100 ($275.00) Dollars to
Catawba County Ambulance, and One Thousand
Eighty and 00/100 ($1,080.00) Dollars to
Unifour Anesthesia.
D. With regard to the debts listed on
Schedule "L" of the Pre-Trial Order, the Court
does not find the Lawn Specialist, Bell
Atlantic Mobile, Ray Sain or Catawba
Radiologist debts to be marital debts.
E. After the parties separated the
Plaintiff paid Fourteen and 52/100 ($14.52)
Dollars to Alexander County for taxes on the
Pontoon, and the Defendant paid Thirty-Four
and 69/100 ($34.69) Dollars to Federal
Express, both of which were marital debts.
F. The defendant contends certain credit
card debts in amounts indicated on Schedule
"L" of the pre-trial order were marital debts.
The Court does not find the Sears debt to be
marital.
G. The Defendant contends there were
Internal Revenue Service obligations inaddition to that listed on Schedule "L" of the
Pre-Trial Order. She contends these Internal
Revenue Service obligations resulted from
joint income of the parties. She further
contends she paid the same with the amount she
paid being between Sixteen and Seventeen
Thousand Dollars. The defendant offered no
evidence of the debts, nor canceled check or
receipts for payment of the same. She further
offered no evidence from the taxing
authorities that amounts were owed, or
payments made.
H. The Defendant contends she made house
payments after the date of separation and
prior to the March, 1998 refinance of
approximately Two Thousand Six Hundred and
00/100 ($2,600.00) Dollars.
I. The Defendant paid maintenance
expenses on the real property after the date
of separation of Two Hundred Eighteen and
00/100 ($218.00) Dollars.
J. The Court has considered the
Defendant's contention regarding Ten Thousand
Seven Hundred Sixty and 90/100 ($10,760.90)
Dollars for payments she made associated with
the tractor and trailers and insurance after
the parties separated.
21. The Court has considered the
Defendant's receipt of income from her sole
and exclusive use of business property after
the parties separated. From the time the
parties separated until November of 1997, the
Defendant had the exclusive use of the
Tractors and Trailers of the parties. The
Defendant also had the exclusive use of the
Tractors and Trailers of the parties since
January of 1998. The Plaintiff says the Court
should consider the fact that the Defendant
deposited up the [sic] Five Thousand Eight
Hundred and 00/100 ($5,800.00) Dollars per
month into the business account from operating
the parties' marital property, and that all
said proceeds she deposited inured to her
benefit as she had the sole use of said
business account. The defendant testified she
used deposits in the account for her benefit.
22. The Court has considered the payments
the Defendant made on the Amigo Jeep and
insurance for the same as contained on
Defendant's Exhibit No. 8.
23. The Court does not find the Jeep to
be marital property, so the Court does not
consider car payments or insurance paid on the
Amigo and Jeep as distributable factors.
24. The Court has considered Two Thousand
Six Hundred Sixty-Six and 53/100 ($2,666.53)
Dollars which the Defendant paid as shown on
her Exhibit No. 9 for gas, tires and other
expense[s] for the use and operation of
marital vehicles, and has considered the
Defendant's use of the proceeds from these
vehicles during that same time.
25. The Court shall not consider any sums
as claimed on Defendant's Exhibit Number 11 as
distributable factors.
26. The Court has considered Seventeen
Thousand Four Hundred and 00/100 ($17,400.00)
Dollars of proceeds the Defendant received
from her separate property, being the sale of
beach property. She contends she used Fifteen
Thousand and 00/100 ($15,000.00) Dollars to
remodel the home and pay into the business of
Performance Unlimited.
27. The Defendant contends the Court
should consider Twenty-Five Hundred and 00/100
($2,500.00) Dollars which came from the sale
of her home she had prior to the marriage in
march of 1992, which she said was used to
purchase property during the marriage.
28. That the gross revenue generated by
the business property of the parties was
approximately Two Hundred to Three Hundred
Fifty Thousand per year prior to the
separation of the parties.
29. The Court has considered the
Defendant's occupancy of the former marital
residence since the Date of Separation, as
well as the increased equity in the former
marital residence as of the Date of
Distribution.
30. The Date of Distribution net value of
the parties' house and 1.07 acre marital
property was approximately $28,000.00, the
increase in value attributable to the joint
effort of the parties to pay debts as
hereinabove considered.
We find that the trial court considered and listed the pertinent
distributional factors under N.C. Gen. Stat. § 50-20(c) (2001)
which, if supported by appropriate findings of fact, would be
sufficient to warrant an unequal distribution of the marital
property.
See Khajanchi, 140 N.C. App. at 558, 537 S.E.2d at 849;
Minter v. Minter, 111 N.C. App. 321, 329, 432 S.E.2d 720, 725,
disc. review denied, 335 N.C. 176, 438 S.E.2d 201 (1993).
The
trial court in the present case determined that an unequal
distribution of the net marital estate would be equitable, with
fifty-three percent awarded to plaintiff and forty-seven percent to
defendant.
However, the crucial issue in this case is whether the trial
court made sufficient findings of fact to justify the unequal
distribution.
See Khajanchi, 140 N.C. App. at 558, 537 S.E.2d at
849 (noting that the trial court "must make findings of fact based
on the evidence in support of its conclusion that an equal division
would not be equitable"). Defendant notes that several findings of
fact state the contentions of the parties but do not resolve the
respective issues. The mere recitation of allegations is
insufficient to constitute proper findings of fact.
See In re
Anderson, 151 N.C. App. 94, 97, 564 S.E.2d 599, 602 (2002) ("As
indicated by the word 'alleged,' the findings are not the 'ultimate
facts' as required by Rule 52(a) to support the trial court'sconclusions of law, but rather are mere recitations of allegations.
As a result we are unable to conduct a proper review of the
findings.");
Dunlap v. Clarke Checks, Inc., 92 N.C. App. 581, 584,
375 S.E.2d 171, 174 (1989) ("Findings of fact that merely restate
a party's contentions or testimony without finding the facts in
dispute are not adequate. It is the duty of the fact finder to
resolve conflicting evidence.") (citing
Wall v. Timberlake, 272
N.C. 731, 158 S.E.2d 780 (1968)). The portions of findings of fact
20F, 20G, 20H, 20J, 21, 26, and 27 in the trial court's equitable
distribution order that only state the contentions of the parties
without resolving the respective issues are not proper findings of
fact. On remand, the trial court shall make proper findings of
fact as they relate to the trial court's decision whether to
distribute the marital property in an unequal manner.
V.
Defendant next contends that it was error for the trial court
to fail to consider defendant's exhibit number one after it was
admitted into evidence, or alternatively that the trial court erred
by failing to admit the exhibit into evidence. Defendant's exhibit
number one consists of two handwritten lists of payments allegedly
made to the Internal Revenue Service (IRS) by defendant after the
date of separation, a photocopy of carbon copies of the checks
defendant allegedly sent to the IRS, and a copy of a receipt for a
draft in the amount of $3,800.00 taken out by defendant, which she
allegedly sent to the IRS. Defendant attempted to introduce the
exhibit as follows: MS. HENDERSON: Okay. All right. Exhibit one
is a listing of IRS payments that I made after
Scott left.
THE COURT: Is that what we were talking about
before?
MS. HENDERSON: Yes. Toward a tax debt of
about $20,000.
THE COURT: Have you seen that?
MR. ISENHOWER [plaintiff's counsel]: I have.
Could I see it again? Its got numerous pages.
THE COURT: Yes.
MS. HENDERSON: The tax debt was fifteen
something, and there was a $2,000 fee that was
paid to an agency to handle it. And the
remainder was paid by the refinance.
THE COURT: May I see it? You may continue.
MS. HENDERSON: Item number two is additional
house payments that I made after the date of
separation with receipts.
THE COURT: Have you seen that, Mr. Isenhower?
MR. ISENHOWER: Is she moving to introduce
that now?
THE COURT: I think--
MS. HENDERSON: I'm sorry?
THE COURT: I'm not sure if she's gotten that
far, yet.
MR. ISENHOWER: I've seen it, yes, sir.
THE COURT: Do you have any objection to me
considering that?
MR. ISENHOWER: Well--
MS. HENDERSON: I've also got the sheet with
Scott's in there.
MR. ISENHOWER: No, sir.
THE COURT: All right. Then Defendant's
exhibit #2 will be received.
It is unclear whether the trial court admitted defendant's
exhibit number one into evidence. The trial court simply asked
defendant if it could see the exhibit but never stated whether the
exhibit was admitted into evidence. The trial court did not
specifically state it was not admitting defendant's exhibit number
one, as the trial court did in reference to defendant's exhibit
number sixteen. The trial court treated defendant's exhibit number
one much like it treated defendant's exhibit number thirteen, where
defendant never specifically asked the trial court to admit the
exhibit, and the trial court initially did not state whether or not
it was admitted. Even though the trial court never expressly
admitted defendant's exhibit number thirteen, after the trial court
accepted several other exhibits into evidence, plaintiff's counsel
expressed his belief that the trial court had admitted defendant's
exhibit number thirteen into evidence. However, in response to
this expression by plaintiff's counsel, the trial court clarified
that defendant's exhibit number thirteen had not been accepted.
There was no such clarification by the trial court as to
defendant's exhibit number one. The trial court did state that in
all of the exhibits tendered by defendant it would disregard any
notes made by attorneys or by defendant as she appeared
pro se, and
it would only "consider the underlying receipts in this case and
what [] they show." As there were no receipts in defendant's
exhibit number one, only notes by defendant, a photocopy copy of
carbon copies of checks that in and of themselves do not show anypayment was made, and an account draft, that without defendant's
handwritten note does not indicate what the money was used for, the
trial court would have been justified in finding that the evidence
in the exhibit was not credible.
However, we are unable to determine whether the trial court
admitted defendant's exhibit number one into evidence and must
therefore remand for a determination by the trial court as to
whether defendant's exhibit number one was properly admitted.
VI.
Defendant also assigns error to the trial court's finding that
the alleged payments made by defendant to the IRS were not payments
of marital debts. The trial court's finding of fact 20G stated:
The defendant contends there were
Internal Revenue Service obligations in
addition to [those] listed on Schedule "L" of
the Pre-Trial Order. She contends these
Internal Revenue Service obligations resulted
from joint incomes of the parties. She
further contends she paid the same with the
amount she paid being between Sixteen and
Seventeen Thousand Dollars. The Defendant
offered no evidence of the debts, nor canceled
check or receipts for payment of the same.
She further offered no evidence from the
taxing authorities that amounts were owed, or
payments made.
Defendant argues that this finding of fact is improper on two
bases. First, defendant argues that the trial court did not make
the necessary ultimate findings of fact as to whether the alleged
debts to the IRS existed, were marital, or were paid by defendant
after separation. Second, defendant argues that the trial court's
finding that defendant offered no evidence of the IRS debt was
erroneous in light of defendant's testimony and defendant's exhibitnumber one. We find that both of defendant's contentions have
merit.
As discussed above, finding of fact 20G does not resolve the
ultimate facts as to whether the alleged debts existed, were
marital, or were paid by defendant after separation.
See In re
Anderson, 151 N.C. App. at 97, 564 S.E.2d at 602;
Dunlap, 92 N.C.
App. at 584, 375 S.E.2d at 174. "Ultimate facts are the final
facts required to establish the plaintiff's cause of action or the
defendant's defense; and evidentiary facts are those subsidiary
facts required to prove the ultimate facts."
Smith v. Smith, 336
N.C. 575, 579, 444 S.E.2d 420, 422-23 (1994) (citations omitted).
The trial court is only required to make ultimate findings of fact,
as opposed to evidentiary findings of fact.
Armstrong v.
Armstrong, 322 N.C. 396, 405-06, 368 S.E.2d 595, 600 (1988).
While only required to make ultimate findings of fact, the
trial court in the present case did make evidentiary findings of
fact in finding of fact 20G. Findings of fact must be supported by
competent evidence.
Gum v. Gum, 107 N.C. App. 734, 738, 421 S.E.2d
788, 791 (1992) (citing
Lawing v. Lawing, 81 N.C. App. 159, 162,
344 S.E.2d 100, 104 (1986)).
In the present case, the trial
court's determination that defendant presented "no evidence" of the
debts
is not supported by the evidence. First, there is
substantial testimony by defendant as to these IRS debts. The
trial court did note that it would consider the testimony "in light
of the fact that [the debt was] not included in the affidavit nor
on the pre-trial order." While the trial court may not have foundthis evidence to be credible, the testimony was allowed by the
trial court despite plaintiff's objection.
Grasty v. Grasty, 125
N.C. App. 736, 739, 482 S.E.2d 752, 754,
disc. review denied, 346
N.C. 278, 487 S.E.2d 545 (1997) ("The credibility of the evidence
in an equitable distribution trial is for the trial court.")
(citing
Hunt v. Hunt, 85 N.C. App. 484, 491, 355 S.E.2d 519, 523
(1987)). Thus, the trial court's finding that defendant presented
no evidence is therefore not supported by the record. However, the
remainder of this finding is supported by the evidence in that
there are no "canceled check[s] or receipts for payment of the
[debt]. [Defendant] further offered no evidence from the taxing
authorities that amounts were owed, or payments made."
On remand, the trial court is only required to make ultimate
findings of fact as to the existence of the IRS debts and their
classification. Any further findings of fact the trial court
chooses to make must also be supported by the evidence. In light
of our decision concerning defendant's exhibit number one, the
trial court must also make a determination as to whether exhibit
number one is admissible and then assess the impact defendant's
exhibit number one has on finding of fact 20G. We remand with
instructions for the trial court to make proper findings of fact as
to the alleged IRS debts as discussed above.
In summary, we remand for entry of a new equitable
distribution order. The trial court properly relied on plaintiff's
testimony as to the value of various items of personal property.
However, the trial court erred in finding the debts to ViewmontUrology, Catawba County Ambulance, and Unifour Anesthesia to be
marital debts based on the lack of evidence, and we remand with
instructions to properly classify this
$6025.00 as plaintiff's
separate debt. We also remand with instructions that the trial
court make a ruling as to whether defendant's exhibit number one is
properly before it, and if so to give it the consideration the
trial court deems appropriate. We further remand for the trial
court, without taking any additional evidence, to make appropriate
findings of facts concerning the distributional factors as
discussed above, and to specifically make an appropriate finding of
fact as to the IRS debts in finding 20G.
Affirmed in part; reversed in part; and remanded in part for
additional findings of fact.
Judges HUNTER and CALABRIA concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***