JEANNINE C. DOLLAR,
Plaintiff,
v
.
Wake County
No. 98 CVD 11385
LELON C. DOLLAR,
Defendant.
Gary S. Lawrence for plaintiff-appellee.
Marshall & Taylor, P.C., by Jeffrey E. Marshall and Travis R.
Taylor, for defendant-appellant.
ELMORE, Judge.
Defendant Lelon C. Dollar appeals from the trial court's
equitable distribution judgment and subsequent order modifying the
judgment, both of which concluded that an equal division of the
parties' marital property was not equitable and awarded a greater
than equal share of all marital and divisible property to
plaintiff, Jeannine C. Dollar. We affirm.
Plaintiff and defendant were married on 5 April 1975 and
separated on 21 September 1998. On 4 December 1998, plaintiff
filed an amended complaint seeking post-separation support,
alimony, divorce from bed and board, equitable distribution of themarital estate, and attorney's fees. On 28 January 1999, defendant
filed his answer to plaintiff's amended complaint and asserted
counterclaims for divorce from bed and board and equitable
distribution. The parties were granted an absolute divorce on 14
June 2000. Thereafter, the parties' claims for equitable
distribution came on for hearing. By order entered 24 October
2001, the trial court awarded plaintiff an unequal share of the
parties' marital and divisible property, and ordered defendant to
pay a distributive award of $145,813.00 to plaintiff. In November
2001, defendant filed a motion for a new trial and a motion to stay
enforcement of the equitable distribution judgment. On 22 January
2002, the trial court granted defendant's motion for stay. On 12
July 2002, following a hearing on defendant's motion for a new
trial and plaintiff's cross-motion to dissolve the stay, the trial
court entered an order which (1) contained additional findings of
fact not included in the equitable distribution judgment; (2)
reduced plaintiff's distributive award by $12,287.20, down to
$133,525.80
(See footnote 1)
, but otherwise provided that the trial court's prior
equitable distribution judgment “shall remain in full force and
effect;” (3) lifted the stay on enforcement of the equitable
distribution judgment; and (4) denied defendant's motion for a new
trial. On 8 August 2002, defendant timely filed notice of appealfrom the 24 October 2001 equitable distribution judgment and the 12
July 2002 order.
At the outset, we note that the 24 October 2001 equitable
distribution judgment indicates the trial court “received testimony
and evidence from both Plaintiff and Defendant” at the equitable
distribution hearing. Because defendant has failed to submit the
transcript from the equitable distribution hearing or otherwise
include the oral testimony in the record on appeal, the findings of
fact contained in the equitable distribution judgment are presumed
to be supported by competent evidence and are therefore conclusive
on appeal. Fellows v. Fellows, 27 N.C. App. 407, 408, 219 S.E.2d
285, 286 (1975); Algary v. McCarley & Co., 74 N.C. App. 125, 126-
27, 327 S.E.2d 296, 297-98 (1985).
The 24 October 2001 equitable distribution judgment contained
the following pertinent findings of fact:
3. The marriage of Plaintiff and Defendant was the
second marriage for both parties. No children were born
of this marriage; however, both Plaintiff and Defendant
have children born of their respective first marriages.
. . . .
7. Pursuant to the stipulations of the parties, the
division of marital assets contained on Schedule A [of
the pre-trial order entered prior to the equitable
distribution hearing] resulted in a division whereby the
Plaintiff received marital assets totaling $328,752.00
and the Defendant received marital assets totaling
$351,046.00.
. . . .
11. Prior to the marriage of the parties, the
Plaintiff's father passed away.
12. Attached to the Pre-Trial Order is a schedule of
separate property of both Plaintiff and Defendant. Thisschedule is incorporated herein by reference and made a
part of this Order.
13. Part of Plaintiff's inheritance from her father was
several parcels of real property located in Chatham
County and one parcel in Harnett County. . . .
. . . .
15. Part of Plaintiff's inheritance was 68.5 acres
located in Harnett County. The Plaintiff instructed her
siblings to convey this tract in Harnett County to she
and the Defendant, as tenants by the entirety. Plaintiff
did so upon reliance on Defendant's promise to have the
pharmacy [owned by defendant] and its assets placed in
the names of both parties.
. . . .
17. Both parties had the Harnett County property
appraised. . . . This Court finds as a fact that the
Harnett County property had a value on date of separation
and date of distribution of $92,000.00.
18. Prior to the marriage the Defendant was a one-third
(1/3) owner of a pharmacy located in Apex, North
Carolina. The Defendant also owned some stock in North
Carolina Mutual Drug Stores.
19. During the marriage the Defendant purchased the
remaining two-thirds (2/3) interest in the pharmacy and
continued to purchase North Carolina Mutual Drug Stock.
20. Prior to the date of separation, the Defendant sold
the pharmacy to Eckerd's Drug Stores. On the date of
separation, the Defendant had received part of the
payment from the sale of the pharmacy; however, following
the separation the Defendant received a balance of
$86,667.00.
21. The Defendant also sold his North Carolina Mutual
Drug Stock prior to the date of separation. Prior to
separation, the Defendant had received $50,752.00 from
the sale of his NC Mutual Drug Stock. Following the date
of separation the Defendant received an additional
$50,752.00 from the sale of this stock.
. . . .
24. The total value of the proceeds from the sale of the
Medical Center Pharmacy and the North Carolina Mutual
Drug Stock; including the accounts which existed on thedate of separation and the proceeds received after date
of separation total $339,657.00.
25. It was stipulated by the parties and their
respective counsel that the proceeds from the sale of the
pharmacy and the drug stock would be treated in the same
manner in determining the portion of the proceeds that
were marital and the portion that was separate property.
26. This Court finds as a fact that two-thirds (2/3) of
the Medical Center Pharmacy was marital property and one-
third (1/3) of the pharmacy was Defendant's separate
property. The Defendant owned a one-third (1/3) interest
on the date of separation and after the date of
separation purchased the remaining two-thirds (2/3)
interest from his two partners.
27. Of the total proceeds from the sale of the pharmacy
and North Carolina Mutual Drug Stock, $226,438.00 is
marital and $113,219.00 is the Defendant's separate
property.
28. Subsequent to the marriage of the parties and prior
to Plaintiff having the Harnett County property conveyed
to Plaintiff and Defendant, the Defendant promised the
Plaintiff that he would convey his interest in the
Medical Center Pharmacy to the two of them; thereby
creating a joint asset. It was on the basis of these
representations and assurances by the Defendant that the
Plaintiff caused the Harnett County property to be
conveyed to her and the Defendant as tenants by the
entirety.
29. The Defendant never conveyed his separate interest
in the pharmacy to he and the Plaintiff; notwithstanding
repeated assurances by the Defendant that he would do
such.
30. The Plaintiff relied upon the assurances and
representations by the Defendant that he would convey the
pharmacy to the two of them, and had the Harnett County
property conveyed to the two of them as tenants by the
entirety.
31. In addition, to the Defendant's separate property as
set forth on the Exhibit attached to the Pre-Trial Order,
the Defendant has as his separate property, a one-third
(1/3) interest in the proceeds from the sale of the
Medical Center Pharmacy and the North Carolina Mutual
Drug Stock; totally [sic] $113,219.00. The total of
Defendant's separate property is $152,219.00.
32. In addition to her separate property as listed on
the schedule attached to the Final Pre-Trial Order, the
Plaintiff has as her separate property the following
assets: [a certificate of deposit in the amount of
$30,718.00
(See footnote 2)
and a checking account containing $9,016.00].
33. The Harnett County property was inherited by the
Plaintiff; however, she had it conveyed to the parties as
tenants by the entirety in reliance upon Defendant's
assurances that he would make his separate ownership
interest in the pharmacy jointly owned property. The
Court finds this to be a distributional factor justifying
an unequal division in Plaintiff's favor.
. . . .
35. On the date of separation, the Court finds that the
parties owned, in addition to property listed above, the
following items of marital property with the
corresponding values: [a] 1987 Lincoln [with a value of]
$5,000.00 [and a] 1994 Buick [with a value of]
$11,000.00[.]. . .
36. Since the separation of the parties, Defendant has
possession and use of most of the parties['] marital
assets. Defendant resided in the marital home until it
was sold. This home was paid for and therefore Defendant
had no monthly mortgage or rent payments. Defendant also
had use of the marital funds. He purchased a new
automobile; paying cash with marital funds. The Court
finds this to be a distributional factor justifying an
unequal division in favor of Plaintiff.
37. Defendant has paid taxes on the proceeds from the
sale of the pharmacy and the Mutual drug stock. These
taxes were as follows: . . . [resulting in a] [t]otal tax
liability [of] $76,440.00[.]
38. Of the tax liability of $76,440.00, $51,627.00 is a
marital liability and $25,813.00 is Defendant's separate
liability.
39. The parties had a marital (and divisible) estate of
$1,014,236.00. After deducting the taxes, the net
marital estate was $962,609.00.
40. Plaintiff has in her possession marital property
with a value totaling $431,752.00.
41. Defendant has in his possession marital property
with a value totaling $582,484.00. After paying the
taxes, Defendant has a net value of $530,857.00.
42. Considering the factors set forth in N.C.G.S. 50-
20(c), the Court finds that an equal division of marital
property, using the net values would not be equitable.
An Equitable Distribution would be a distribution whereby
the Plaintiff receives a greater than equal share. The
distribution of all marital and divisible property as
hereafter set forth is determined by the Court to be
equitable.
Based on these findings of fact, the trial court concluded
that an equal division of the marital and divisible property would
not be equitable, awarded plaintiff a greater than equal share and
distributed the marital estate accordingly, and ordered defendant
to make a distributive payment of $145,813.00. The trial court's
subsequent 12 July 2002 order contained the following additional
pertinent finding of fact:
11. Since the separation of the parties, the Defendant
has had control of a majority of the parties['] assets.
The parties are retired and are dependent upon their
investments, plus Social Security for the living
expenses. The Defendant has had the use of the majority
of their joint investments since the date of separation;
to the exclusion of the Plaintiff. . . .
By the 12 July 2002 order, the trial court modified the equitable
distribution judgment by reducing plaintiff's distributive award to
$133,525.80 after finding that certain marital property had been
erroneously classified as plaintiff's separate property, but
provided that in all other respects the equitable distribution
judgment “shall remain in full force and effect.” Defendant
appeals from the provisions of both the 24 October 2001 equitabledistribution judgment and the 12 July 2002 order awarding plaintiff
an unequal share of the marital and divisible property.
Initially, we note that under N.C. Gen. Stat. § 50-20 (2001),
the statute governing equitable distribution, “[t]he marital
property is to be distributed equally, unless the court determines
equal is not equitable.” Stanley v. Stanley, 118 N.C. App. 311,
314, 454 S.E.2d 701, 703 (1995) (quoting Willis v. Willis, 86 N.C.
App. 546, 550, 358 S.E.2d 571, 573 (1987)). “If 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.” Khajanchi v. Khajanchi, 140 N.C. App.
552, 558, 537 S.E.2d 845, 849 (2000). Defendant bases each of his
six assignments of error on the assertion that the findings
contained in the equitable distribution judgment and the 12 July
2002 order are insufficient to support an unequal division of the
marital estate in plaintiff's favor.
In reviewing the sufficiency of a trial court's findings of
fact to support an equitable distribution award, this Court has
stated that “the degree of specificity required in a court order
pertaining to equitable distribution cannot be established with
scientific precision.” Rosario v. Rosario, 139 N.C. App. 258, 267,
533 S.E.2d 274, 279 (2000). We look for guidance to our Supreme
Court's holding that “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.” Embler v. Embler, __ N.C. App. __, __, 582 S.E.2d 628, 631(2003); see also Patton v. Patton, 318 N.C. 404, 406, 348 S.E.2d
593, 595 (1986). Moreover, the trial court must make specific
findings as to the ultimate, rather than evidentiary, facts found
by the trial court in support of its conclusion regarding equitable
distribution. Embler, __ N.C. App. __, 582 S.E.2d at 631. The
trial court is not required to make “exhaustive findings regarding
the evidence presented at the hearing.” Armstrong v. Armstrong,
322 N.C. 396, 405, 368 S.E.2d 595, 600 (1988).
N.C. Gen. Stat. § 50-20(c) sets forth twelve distributional
factors for the trial court to consider in determining whether or
not equal distribution of marital property is equitable. “[A]
finding which merely states that 'due regard' has been given to the
section 50-20(c) factors, without supporting findings as to the
ultimate evidence presented on these factors, is insufficient as a
matter of law, because such a general finding does not present
enough information to allow an appellate court to determine whether
evidence presented on each of the section 50-20(c) factors was duly
considered by the trial court.” Daetwyler v. Daetwyler, 130 N.C.
App. 246, 249-50, 502 S.E.2d 662, 665 (1998), aff'd per curiam, 350
N.C. 375, 514 S.E.2d 89 (1999) (citations omitted) (emphasis
added). The trial court is required to make findings of fact as to
each section 50-20(c) factor for which evidence was presented.
Rosario, 139 N.C. App. at 261, 533 S.E.2d at 276. The weight to be
assigned to any of the section 50-20(c) factors on which the
parties have presented evidence is within the trial court's
discretion, and the trial court is not required to make findingsrevealing the exact weight assigned to any given factor.
Daetwyler, 130 N.C. App. at 250, 502 S.E.2d at 665; see also Fox v.
Fox, 103 N.C. App. 13, 21-22, 404 S.E.2d 354, 358 (1991) (holding
that the trial court's findings were sufficient despite the fact
that “the court did not explain how it balanced [the
distributional] factors”).
We review the equitable distribution judgment and 12 July 2002
order in the present case with the foregoing principles in mind.
Defendant first argues the trial court “erred and abused its
discretion” by failing to “sufficiently consider all required
statutory factors” in rendering both the equitable distribution
judgment and subsequent order. Defendant correctly points out that
neither the equitable distribution judgment nor the 12 July 2002
order cite directly to a “single specific subsection or subsections
of N.C.G.S. § 50-20(c) for which evidence was offered . . . [as]
the alleged basis for an unequal distribution of marital property”
in plaintiff's favor. The only reference to N.C. Gen. Stat. § 50-
20(c) in the equitable distribution judgment's findings is in
finding of fact number 42, which states that an equal division of
the marital property would not be equitable “[c]onsidering the
factors set forth in N.C.G.S. 50-20(c);” similarly, the lone
reference to the statute in the 12 July 2002 order's findings is in
conclusion of law number five, which states that the equitable
distribution judgment, as amended by the order, represents an
equitable distribution of the marital estate “after consideration
of all factors set forth in N.C.G.S. 50-20(c).” Our careful review indicates the equitable distribution
judgment contains extensive findings of ultimate facts as to two of
the twelve statutory distributional factors, although, as noted
above, the judgment does not cite to the appropriate subsection of
section 50-20(c) in either instance. In findings of fact numbers
15, 28, 30, and 33, the trial court found as an ultimate fact that
plaintiff caused real property in Harnett County she received as an
inheritance to be conveyed to herself and defendant as tenants by
the entirety, in reliance upon defendant's promise to convey his
separate interest in the Medical Center Pharmacy to himself and
plaintiff jointly. In finding of fact number 29, the trial court
found as an ultimate fact that defendant never conveyed his
separate interest in the pharmacy, “notwithstanding repeated
assurances by the Defendant that he would do such.”
N.C. Gen. Stat. § 50-20(c)(12) provides that the trial court
may consider as one of the distributional factors “any . . . factor
which the court finds to be just and proper” in determining whether
equal distribution of the marital estate is equitable. Our Supreme
Court has limited considerations under N.C. Gen. Stat. § 50-
20(c)(12) to “those which are relevant to the marital economy.”
Smith v. Smith, 314 N.C. 80, 87, 331 S.E.2d 682, 687 (1985). In
finding of fact number 33, the trial court found plaintiff's
conveyance of the inherited Harnett County property to herself and
defendant as tenants by the entirety “in reliance upon Defendant's
assurances that he would make his separate ownership interest in
the pharmacy jointly owned property” to be a “distributional factorjustifying an unequal division in Plaintiff's favor.” The trial
court made a specific finding that defendant never conveyed any
interest in the pharmacy to plaintiff. The trial court also made
findings as to valuation of the Harnett County property and the
proceeds defendant received from the sale of the pharmacy and
related stock. While neither finding of fact numbers 33 or 42 in
the equitable distribution judgment specifically cite N.C. Gen.
Stat. § 50-20(c)(12) as the basis for its determination that
unequal division in plaintiff's favor is equitable, we conclude
that because the trial court made sufficient “supporting findings
as to the ultimate evidence presented on” this distributional
factor, which is related to the marital economy, its findings were
sufficient as a matter of law to support its conclusion and to
allow meaningful appellate review thereof. Daetwyler, 130 N.C.
App. at 249, 502 S.E.2d at 665.
We employ an identical analysis in reviewing the equitable
distribution judgment's finding of fact number 36, in which the
trial court found as ultimate facts that defendant (1) had retained
“possession and use of most of the parties['] marital assets;” (2)
“also had use of the marital funds;” and (3) “purchased a new
automobile[,] paying cash with marital funds,” which the court
found to be “a distributional factor justifying an unequal
distribution in favor of Plaintiff.” N.C. Gen. Stat. § 50-
20(c)(11a) requires the trial court to consider “[a]cts of either
party to . . . waste, neglect, devalue or convert the marital
property or divisible property, or both, during the period afterseparation of the parties and before the time of distribution.”
While neither finding of fact numbers 36 or 42 cite N.C. Gen. Stat.
§ 50-20(c)(11a) as the basis for the trial court's conclusion that
equal distribution would not be equitable, we conclude that because
the trial court made sufficient “supporting findings as to the
ultimate evidence presented on” this distributional factor, its
findings were sufficient as a matter of law to support its
conclusion and to allow meaningful appellate review thereof.
Daetwyler, 130 N.C. App. at 249-50, 502 S.E.2d at 665.
Defendant next argues the trial court erred and abused its
discretion by failing to make findings as to evidence offered on
certain section 50-20(c) distributional factors. Specifically,
defendant argues that evidence was presented as to (1) the amount
of taxes defendant paid in connection with the sale of the pharmacy
and associated stock; (2) the income, property, and liabilities of
each party at the time the division of property is to become
effective; and (3) certain expenditures made by defendant related
to the sale of the pharmacy and to prepare the marital home for
sale.
We agree that this evidence, if presented, relates to the
distributional factors codified in N.C. Gen. Stat. § 50-20(c)(11),
_20(c)(1), and _20(c)(11a), respectively. Defendant correctly
states that the trial court must make findings as to each section
50-20(c) distributional factor for which evidence was presented.
Rosario, 139 N.C. App. at 261-62, 533 S.E.2d at 276. However, our
review indicates the trial court made findings in the equitabledistribution judgment's findings of fact numbers 37, 38, and 41 as
to the amount of taxes defendant paid in connection with the sale
of the pharmacy and associated stock, as required by N.C. Gen.
Stat. § 50-20(c)(11) and Rosario. Likewise, we conclude that the
trial court made ultimate findings as to each parties' income,
property, and liabilities in the equitable distribution judgment's
findings of fact numbers 7, 12, 17, 24, 27, 31, 32, 35, 40, and 41,
as well as in the 12 July 2002 order's finding of fact number 11,
as required by N.C. Gen. Stat. § 50-20(c)(1) and Rosario.
While neither the equitable distribution judgment nor the 12
July 2002 order contain any findings regarding expenditures
defendant claims he made related to the sale of the pharmacy and to
prepare the marital home for sale, none were required because our
review of the record fails to indicate that any evidence was
offered as to these expenditures. In his brief defendant cites
only his motion for a new trial as support for his contention that
he presented such evidence to the trial court; paragraph five of
his motion states that defendant presented evidence of these
expenditures “through testimony and documentary exhibits.” Because
defendant has failed to submit transcripts of either hearing or
include “documentary exhibits” of these expenditures in the record,
the trial court's lack of findings as to these expenditures is
binding on appeal. Fellows, 27 N.C. App. at 408, 219 S.E.2d at
286; Algary, 74 N.C. App. at 126-27, 327 S.E.2d at 297-98 (1985).
The trial court is vested with wide discretion in equitable
distribution cases. Wall v. Wall, 140 N.C. App. 303, 307, 536
S.E.2d 647, 650 (2000). Consequently, a trial court's equitable
distribution judgment “will be upset only upon a showing that it
was so arbitrary that it could not have been the result of a
reasoned decision.” Id. (quoting White v. White, 312 N.C. 770,
777, 324 S.E.2d 829, 833 (1985)). This Court has held that “so
long as the trial court considers all the distributional factors in
§ 50-20(c) and makes sufficient findings as to each statutory
factor on which evidence is offered, the finding of a single
distributional factor by the trial court may support an unequal
division” of the marital estate. Judkins v. Judkins, 113 N.C. App.
734, 741, 441 S.E.2d 139, 143, disc. rev. denied, 336 N.C. 781, 447
S.E.2d 424 (1994). In light of our analysis above, we cannot
conclude that the trial court in the present case abused its
discretion in making certain findings of fact, declining to make
others, and concluding that an unequal division of the marital
assets in plaintiff's favor was equitable.
Affirmed.
Judges TIMMONS-GOODSON and HUNTER concur.
Report per Rule 30(e).
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