McKyer v McKyer, (02-1096) 08/05/2003

Appeal by plaintiff from orders entered 3 October 2001, 17 December 2001, and 13 February 2002 by Judge Regan A. Miller, District Court, Mecklenburg County. Heard in the Court of Appeals 3 June 2003.

Marnite Shuford for plaintiff-appellant.

Billie Ray Ellerbe for defendant-appellee.

    WYNN, Judge.

    In this appeal from a Judgment and Order of Equitable Distribution, Timothy McKyer challenges the trial court's (I) classification of assets and debts, (II) distribution of assets and debts, and (III) determination that his wife was a dependent spouse. After review, we affirm the equitable distribution judgment and order.
    This is the second appeal involving issues arising from the dissolution of the marriage of Timothy and Fontella McKyer. In the first appeal, this Court affirmed the trial court's award ofprimary custody of the couple's minor children to Mr. McKyer with visitation rights for his wife. McKyer v. McKyer, 152 N.C. App. 477, 567 S.E.2d 840 (2002), disc. review denied by 356 N.C. 438, 572 S.E.2d 785 (2002), (McKyer I).
    As stated in McKyer I, the parties married in 1991, had children in 1995 and 1998, and separated in 2000. Mr. McKyer formerly worked as a professional football player for twelve years with seven different National Football League teams, including the Carolina Panthers in Charlotte, North Carolina. After his football career ended in 1998, Mr. McKyer sought employment in communications as a radio host or football commentator. When that effort failed, he attempted to obtain a college degree. His wife, who had completed her college degree before marrying, obtained full-time employment in January 2000. Shortly thereafter, the parties separated, and eventually undertook the subject action which led to this appeal from a Judgment and Order of Equitable Distribution.
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    Preliminarily, we note that Mr. McKyer presents four arguments regarding the distributional factors utilized by the court. He primarily contends the facts warranted an unequal division of marital assets in his favor. However, in making his arguments for an unequal distribution, he makes several arguments regarding the trial court's erroneous classification of several assets and debts. As classification is a different consideration from the issue of whether an unequal division was warranted, we will address theseissues separately. N.C. Gen. Stat. § 50-20; see Conway v. Conway, 131, N.C. App. 609, 508 S.E.2d 812 (1998).

    Regarding the issue of proper classification of assets and debts, this Court has stated that,
    In making an equitable distribution, a trial court must first identify and classify all property as marital, divisible, separate, or mixed property. Conway v. Conway, 131, N.C. App. at 613, 508 S.E.2d 816. This Court will not disturb a trial court's classification if there is competent evidence to support that determination: On appeal, we review the record to determine whether the trial court's findings of fact are supported by any competent evidence, regardless of the existence of evidence which may support a contrary finding.

Conway v. Conway, 131 N.C. App. 609, 508 S.E.2d 812 (1998).
    Mr. McKyer first contends the trial court erroneously classified a portion of his NFL severance pay as martial property. We disagree.
    In its findings, the trial court determined that of the $100,000.00 that Mr. McKyer received as NFL severance pay, “58.3% of the amount actually received [was] marital property.” (FOF 8, R. p. 142). Mr. McKyer contends that the trial court should have classified the entire amount of severance pay as his separate property. However, the record shows that while Mr. McKyer's severance pay was based on his twelve-year NFL career (1986 to 1998), for over half of his career (1991-1998), the couple was married. Thus, the record shows competent evidence to support the trial court's classification of the severance pay as a mixed asset. See McIver v. McIver, 92 N.C. App. 116, 124-25, 374 S.E.2d 144, 149-50 (1988) (explaining that under the source of funds rule,property may include both marital and separate ownership interests); McLean v. McLean, 323 N.C. 543, 549, 374 S.E.2d 376, 380 (1988)(stating “equitable distribution is based on the idea of marriage as a partnership in which both spouses contribute to the marital economy, whether directly by employment outside the home or indirectly by providing services within the home. In particular, the concept creates a means for recognition of the contribution of the dependent spouse, who may have sacrificed his or her own career potential for the sake of the other or the marriage itself”).
    Next, Mr. McKyer contends the trial court erroneously classified proceeds used to acquire the couple's home in Charlotte as marital property. In 1995, the parties purchased their Charlotte home for approximately $450,000, using money from their joint bank account and the proceeds from the sale of their Texas home. In 1989, prior to marriage, Mr. McKyer purchased the Texas home for $410,000, with $88,000 as a down payment. He contends that since the proceeds from the sale of the Texas home were used to purchase the Charlotte home, the trial court failed to designate the $88,000 as separate property.
    However, as Ms. McKyer correctly argues in her brief, upon titling the Charlotte home as a tenancy by the entirety in 1996, a marital gift presumption arose. See Davis v. Davis, 129 N.C. App. 353, 359, 498 S.E.2d 629, 633 (1998) (“When property is titled as a tenancy by the entirety, there is a presumption that any separate property funds used to acquire the property was a gift to the marriage and the property is marital in nature.”). Nonetheless,such presumption is rebuttable by clear and convincing evidence. See Walter v. Walter, 149 N.C. App. 723, 729, 561 S.E.2d 571, 575 (2002). “Evidence that a gift to the marital estate was not intended can be gathered from circumstances which led to the execution of the deed and the parties action after execution of the deed, such as the donor spouse's continued treatment of the property as his separate property following the conveyance. Competent evidence also includes the donor spouse's intent, expressed at some point in time, not to make a gift of the property to the marital estate.” Id.
    In this case, the Charlotte home was originally purchased in the husband's name only because, according to the husband's testimony, the wife was not in Charlotte at the time of the closing on 5 August 1995. Less than a year later on 1 March 1996, Mr. McKyer executed a deed conveying the Charlotte home to the couple as tenancy by the entirety property. Based on these facts, we uphold the trial court's determination that Mr. McKyer did not present clear and convincing evidence that he did not intend to make a gift of any proceeds used to acquire the Charlotte home.     Next, Mr. McKyer contends the trial court failed to classify and distribute the $97,006.12 tax debt for tax year 1996 and the $8,800 potential state income tax on his severance pay as marital debt. “The party who claims that any debt as marital bears the burden of proof on that issue and must show both the value of the debt on the date of separation and that it was incurred during the marriage for their joint benefit.” 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).
    In this case, at the time of the equitable distribution hearing, both parties were still awaiting notification from the North Carolina Department of Revenue as to the final amount owed on both matters. Thus, neither party met their burden to show the value of the debt on the date of separation. Nonetheless, the trial court chose to divide the potential liability for unpaid 1996 taxes by requiring the parties to share the debt equally unless otherwise agreed upon. Moreover, the trial court did not address the $8,000 potential liability because Mr. McKyer failed to present sufficient evidence to support such a finding. Mr. McKyer testified that the $8,800 consisted of state taxes on the severance pay plus penalty and interest for the year 2000. During cross- examination, information was presented that other income was encompassed by the $8,800. Since Mr. McKyer did not provide the trial court with sufficient evidence of this tax, the trial court properly did not base any findings or conclusions on that matter.     Mr. McKyer next contends the trial court, in findings of fact 18 and 24, erroneously failed to classify all of a credit card debt as marital debt. In findings of fact 18 and 24, the trial court stated:
        18. Since the date of separation husband has been responsible for repayment of the MBNA credit card account. As of May 10, 2001 the balance due on that account is $4,999.06. Thus, there has been a reduction of principal in the amount of $5,936.62 by husband.

        24. With respect to the credit card accountwith MBNA, husband shall be responsible for repaying this debt and wife shall be held harmless from any obligations as to this account.

However, in finding of fact 13, the trial court stated:
        During the marriage, both parties purchased items by using a credit card account with MBNA that is held in husband's name. On the date of separation the outstanding balance on this account was $10,935.68.

Accordingly, the trial court did classify the credit card debt as marital and correctly stated the debt as $10,935.68. After the parties separated, the husband transferred $5,936.62 of the balance owed on this account to another credit card with a lower interest rate.   (See footnote 1) By finding of fact 18 the trial court indicated it considered Mr. McKyer's post-separation payment in its determination that an equal division of marital assets and debts was equitable. See Hay v. Hay, 148 N.C. App. 649, 653, 559 S.E.2d 268, 272 (2002)(stating “post-separation payments on marital debts may be treated as a distributional factor”); see also McIver v. McIver, 92 N.C. App. 116, 128, 374 S.E.2d 144, 151 (1988)(stating “in determining whether a particular distribution will be equitable, the judge must consider the statutory equitable factors set out in Section 50-20(c). If evidence of one or more of thefactors listed in 50-20(c) is presented, the findings must reflect that the trial judge considered those factors, whether the judge ultimately orders an equal or an unequal distribution”). In finding of fact 24, the trial court distributed the MBNA debt obligation to Mr. McKyer. Accordingly, we find this argument to be without merit.
    Finally, Mr. McKyer contends the trial court's conclusions of law 4-9 are not supported by the findings of fact and evidence presented at trial. These conclusions state the assets and debts of the parties are classified as either marital, separate or divisible as “listed herein,” or, in other words, as indicated in the findings of fact. Findings of fact 6-10 classify, value and distribute the assets of the parties; and, findings of fact 12-25 classify, value and distribute the debts of the parties. Accordingly, we find these findings of fact support conclusions of law 4-9.

    Regarding the issue of the distribution of the marital estate, this Court has held that the “distribution of marital property is within the sound discretion of the trial court and will not be overturned absent an abuse of discretion.” O'Brien v. O'Brien, 131 N.C. App. 411, 416-17, 508 S.E.2d 300, 304 (1998). Likewise, “the manner in which the court distributes or apportions marital debts ... is a matter committed to the discretion of the trial court.” Hay v. Hay, 148 N.C. App. 649, 656, 559 S.E.2d 268, 273 (2002). “In determining whether a particular distribution will beequitable, the judge must consider the statutory equitable factors set out in Section 50-20(c). If evidence of one or more of the factors listed in 50-20(c) is presented, the findings must reflect that the trial judge considered those factors, whether the judge ultimately orders an equal or an unequal distribution.” McIver v. McIver, 92 N.C. App. 116, 128, 374 S.E.2d 144, 151 (1988). However, “an equal division of marital property is mandatory unless the trial court determines that an equal division would be inequitable.” Collins v. Collins, 125 N.C. App. 113, 116-17, 479 S.E.2d 240, 242 (1997). “In order to show an abuse of discretion, a party must show that the decision was unsupported by reason and could not have been the result of a competent inquiry.” O'Brien v. O'Brien, 131 N.C. APP. 411, 416-17, 508 S.E.2d 300, 304 (1998).     Mr. McKyer contends the trial court erroneously distributed the marital property because the following factors warranted an unequal distribution of marital assets in his favor: (1) his premarital separate property contribution to the purchase of the marital residence; (2) the marital debt should have been distributed in reference to the income, property and liabilities of the husband and wife at the time the division of the property was to become effective; (3) as the custodial parent, the husband needed the use of the marital home sale proceeds and household effects; and, (4) the husband's lack of a college education and his need to use the marital home sale proceeds as support while he attended college. We hold that the trial court did not abuse its discretion in its distribution of marital assets and debts underthe G.S. 50-20(c) factors.
    (1) Husband's Contribution to Purchase of Marital Home
    Findings of fact 4 and 5 indicate the trial court reflected upon the evidence relevant to the parties' marital contributions:
        4. At the time of their marriage on January 26, 1991, Plaintiff husband had been employed as a professional football player for approximately five years and was earning yearly salaries of up to $1,000,000 although he had not completed his college education. Husband had already purchased a home in Texas valued at $410,000.00. Defendant wife had been employed as a public school teacher, was living with her mother in Texas and had already obtained a college degree. ... The $87,000.00 in equity that husband had in [the Texas home] became marital property. Wife quit her job as a schoolteacher and did not work again on a full-time basis until January 2000. Additionally, Husband paid off all of wife's outstanding loans, including a car note for a car that was given to wife's mother as a gift. Husband purchased a new car for wife and invested in a health club located in Texas that wife managed without compensation. ...

        5. Husband continued his professional football career for a period of seven years after the parties married. He officially retired in the fall of 2000 after none of the NFL teams would sign him to the league minimum contact for a veteran and has not had regular full-time employment since 1998. Husband has unsuccessfully made good faith attempts to obtain regular employment as a television and radio broadcaster. At the time of trial he had enrolled in a local college and was planning on completing his college education so that he would more easily qualify for employment as an athletic coach or physical education teacher.

Accordingly, these findings indicate the trial court did reflect upon the husband's evidence regarding his contributions to the Charlotte home purchase and that he was the sole breadwinner duringthe marriage.
    Furthermore, the husband's reliance upon Collins v. Collins, 125 N.C. App. 113, 479 S.E.2d 240 (1997) as standing for the proposition that his contributions should be considered a distributional factor under G.S. 50-20(c)(12) is misleading. This Court in Collins stated that such contributions may be considered as a distributional factor. Accordingly, the trial court is not required to consider his separate property contribution to the marital estate as a distributional factor; rather, the trial court may do so in its discretion. See N.C. Gen. Stat. § 50-20(c)(12).
    (2) Distribution of Marital Debt
    Mr. McKyer contends the marital debt should have been distributed in reference to the income, property and liabilities of the husband and wife at the time the division of the property was to become effective. Specifically, he contends the trial court erred by failing to order the tax year 1996 and 2000 potential liabilities deducted from the proceeds from the sale of the marital home. However, Mr. McKyer has not presented any argument as to why the trial court's order that the parties split equally between them any tax liability constituted an abuse of discretion; accordingly, we find this contention to be without merit.
    Mr. McKyer also argues “the trial court failed to make findings of fact regarding marital and post-separation debt assigned to plaintiff as distributive factors in distributing marital debt to plaintiff.” However, in findings of fact 12-25, the trial court discussed the parties' marital debt and allocatedthe responsibility of paying such debt between the parties.
    Mr. McKyer next contends the “trial court failed to make findings of fact regarding the income, property, and liabilities of [the parties] at the time the division of the property was to become effective as a factor to be considered in determining that an equal division is not equitable and [that Mr. McKyer] should be entitled to an unequal distribution in his favor.” However, finding of fact 5, discussing the end of Mr. McKyer's NFL career and his college enrollment; finding of fact 8, discussing the amount and division of his NFL severance pay; finding of fact 9, discussing the parties' stipulation as to the classification, value, and distribution of certain items marital property; finding of fact 10, describing marital property, its value and distribution; findings of fact 12-25, discussing the classification and division of marital and separate debt; finding of fact 25, discussing the husband's purchase of a new home after separation, the fact that the husband is the custodial parent, and the wife's full-time employment, salary and the lack of a child support order and agreement; and finding of fact 28 discussing Mr. McKyer's NFL pension and severance pay demonstrate the court considered the respective incomes, liabilities and property of both the husband and the wife in reaching its determination that an equal division was equitable. Accordingly, we find this argument to be without merit.
    (3) Custodial Parent Obligations
    Mr. McKyer next argues that “the trial court failed to makefindings of fact regarding [Mr. McKyer's need] to use the household effects of the marital residence as a factor to be considered in determining that an equal division is not equitable and [that Mr. McKyer] should be entitled to an unequal distribution in his favor.” He also argues “the trial court failed to make findings of fact regarding [his need] as the custodial parent to the marital household effects as a distributive factor in granting [him] a greater than equal award.”
    In finding of fact 26, the trial court stated “the husband [had been] designated as the primary custodian of his two minor children and his new residence has become their primary home.” Furthermore, the transcript indicates the trial court considered his needs as custodial parent:
        ...your comments to my draft order were about the fact that he had to support the children, and he needed more cash to do that. And you wanted me to change the allocation of cash so that he would be able to afford that. And it was a concern that he wasn't working and didn't have a steady source of income coming in to pay those debts. But as you know, I remember commenting that he had to go out and get a job because we had that issue on the post-separation support payments, ...

Our case law does not require the trial court to make specific findings of fact regarding the distributional factors; rather, the trial court's findings must reflect the trial court considered those factors. See McIver v. McIver, 92 N.C. App. 116, 128, 374 S.E.2d 144, 151 (1988). In this case, the transcript and finding of fact 26 indicate the trial court considered the needs of the husband as the custodial parent.    Mr. McKyer also argues that in finding of fact 10, the trial court “erroneously distributed to [his wife] and/or failed to distribute to [him] marital property that was for the benefit of the minor children where the court in a prior order awarded [Mr. McKyer] custody of the minor children. In particular, Mr. McKyer contends the children's life insurance policies and an “education” account should have been distributed to him by the trial court. However, the court has wide discretion in its distribution of the marital assets, and Mr. McKyer has not shown the trial court abused its discretion. See Smith v. Smith, 111 N.C. App. 460, 470-71, 433 S.E.2d 196, 203 (1993), reversed in part on other grounds, 336 N.C. 575, 444 S.E.2d 420 (1994).
    Mr. McKyer also contends “the trial court's finding of fact 10 erroneously set values to the personal property distributed to [him] in its schedule that is not supported by competent evidence or based on the date of separation value of the personal property.” However, he does not present any arguments in support of this contention. He also argues the trial court erroneously distributed to him the NFL Pension as date of separation cash value instead of as deferred compensation benefits through a QDRO as specified by and through his NFL Pension Plan program. He contends he should have been given a larger portion of the share of the proceeds from the sale of the marital home. However, the court has wide discretion in its distribution of the marital assets, and Mr. McKyer has not shown the trial court abused its discretion. See Smith v. Smith, 111 N.C. App. 460, 470-71, 433 S.E.2d 196, 203(1993), reversed in part on other grounds, 336 N.C. 575, 444 S.E.2d 420 (1994).