Appeal by plaintiff from order dated 1 December 1997,
nunc pro
tunc March 10, 1997, orally entered order on 21 March 2000, order
filed 31 October 2000,
nunc pro tunc October 10, 2000, and judgment
filed 8 July 2002 by Judge William B. Reingold in Forsyth County
District Court. Heard in the Court of Appeals 3 December 2003.
Elliot Pishko Morgan, P.A., by David C. Pishko, for plaintiff-
appellant.
Morrow Alexander Tash Kurtz & Porter, by Gary B. Tash, for
defendant-appellee.
BRYANT, Judge.
Anne Litton White (plaintiff) appeals an order dated 1
December 1997 allowing John Blevins Davis (defendant) to use Robert
N. Pulliam (Pulliam) as an expert, an order
(See footnote 1)
entered 21 March 2000
denying plaintiff's oral motion to recuse Pulliam as an expert, an
order dated 31 October 2000 denying plaintiff's motion to amend theequitable distribution pretrial order, and an equitable
distribution judgment entered 8 July 2002.
On 9 September 1994, plaintiff filed a complaint seeking
custody of the parties' children, child support, and equitable
distribution. The custody and support claims were resolved first,
and orders with respect to those claims were entered on 19 July
1995 and 28 May 1996 respectively. On 13 November 1997, an
equitable distribution pretrial order was entered containing
stipulations of the parties as to the classification (marital or
separate) and value of their property. With regard to disputed
property values, the pretrial order contained the separate dollar
amounts claimed by plaintiff and defendant. For some of these
items, the corresponding alleged values were not provided and
either plaintiff or defendant merely indicated that they were “TBD”
(to be determined). The pretrial order provided that:
in the event that either party hereto has not
listed any value for any item(s) of property
that is marital . . . as itemized in this Pre-
Trial Order . . . such party shall be required
to notify the other party hereto through
counsel of her or his value(s) of such
property at least thirty (30) days in advance
of the commencement of the equitable
distribution trial . . . or upon the failure
of such party to do so, the value(s) of such
item(s) shall be the value(s) listed on this
Pre-Trial Order by the other party hereto
. . . .
The pretrial order was signed by the parties and the trial court.
The equitable distribution hearing commenced on 20 March 2000
with testimony on the value of the parties' respective medical
practices and continued for a total of seventeen days over thecourse of two years. On 29 September 2000, plaintiff filed a
motion to amend the pretrial order to include values for property
she had previously marked as “TBD” in the pretrial order. The
trial court denied her motion by order dated 31 October 2000. In
its equitable distribution judgment entered 8 July 2002, the trial
court concluded that an equal distribution of the marital property
was equitable. Additional facts relevant to the analysis will be
set out below.
__________________________
The issues are whether: (I) plaintiff was prejudiced by an
unreasonable delay in the proceedings and entry of the judgment;
(II) the trial court abused its discretion in denying plaintiff's
motion to amend the pretrial order; (III) Pulliam, defendant's
expert, was barred from testifying based on a conflict of interest;
(IV) the trial court abused its discretion in considering as a
distributional factor in defendant's favor his 85% separate
property interest in his 72% ownership of Salem Urological, P.A.;
and (V) the trial court abused its discretion in failing to
consider as a distributional factor the passive post-separation
increase in defendant's stock in Carolina Physicians Associates,
P.A. and (VI) in Salem Trust Bank.
I
In her first assignment of error, plaintiff argues her due
process rights were violated and she was prejudiced by the
unreasonable delay of (A) the trial proceedings and (B) entry of
the equitable distribution judgment. Plaintiff points out that:the equitable distribution hearing did not commence until five
years after the filing of her complaint; the 17 hearing dates were
stretched out over the course of two years; and the equitable
distribution judgment was not entered until seven months after the
conclusion of the trial and four months after the trial court's
oral announcement of its final decision in open court. In support
of her proposition, plaintiff relies on this Court's holding in
Wall v. Wall, 140 N.C. App. 303, 536 S.E.2d 647 (2000), which
considered a nineteen-month delay between the date of trial and the
date of disposition “more than a
de minimis delay,”
id. at 314, 536
S.E.2d at 654 (analyzing the appellant's due process rights).
A
Trial Delay
In the case
sub judice, it appears that much of the delay in
the equitable distribution proceeding was caused by a combination
of the magnitude of the case, the sheer volume of the assets at
issue, and plaintiff's own actions.
See Banner v. Banner, 86 N.C.
App. 397, 403, 358 S.E.2d 110, 113 (1987) (holding that the
appellant should not be allowed to benefit on appeal when she was
responsible for the delay in the entry of the divorce judgment).
After filing her complaint for custody, child support, and
equitable distribution on 9 September 1994, hearings were first
held on plaintiff's child custody and support claims. On the
custody issue, a consent order was entered by the parties on 19
July 1995. An order for child support was entered on 28 May 1996.
Thereafter, plaintiff filed four separate motions in the cause tomodify the orders, all of which the trial court denied on 21
December 1998. Dealing with the issues of child custody and
support prior to equitable distribution was a justifiable ground
for the initial delay of the equitable distribution portion of the
trial.
Further, according to the local rules for the Twenty-First
Judicial District, Forsyth County, North Carolina, plaintiff bore
the burden of producing the initial draft of the equitable
distribution pretrial order, and numerous drafts were circulated
between the parties until they reached agreement on the final
version. The final pretrial order, entered 13 November 1997,
spanned sixty-three pages and addressed 664 items of property.
Following completion of this expansive document, the trial court's
focus shifted back to the child custody and support issues through
plaintiff's filing of her motions in the cause to modify the
custody and support orders, which the trial court denied on 21
December 1998. Thereafter, the trial court scheduled the
commencement of the equitable distribution hearing for 20 September
1999 but had to postpone the date when plaintiff's attorney and the
trial court discovered a scheduling conflict.
During the course of the equitable distribution proceeding,
for which hearings commenced on 20 March 2000, plaintiff employed
seven different attorneys, who were discharged or withdrew at
various stages throughout the trial. Plaintiff also appealed from
an interlocutory order of the trial court, thereby further delaying
the equitable distribution proceeding until the appeal wasdismissed by order of this Court filed 2 April 2001.
(See footnote 2)
In addition,
the trial court was forced to move the conclusion date for the
trial to a later date after plaintiff withdrew her consent to a
previously announced settlement agreement. Based on these factors,
we hold that plaintiff's due process rights were not violated by an
unreasonable delay in the trial proceedings as any delay appears to
have resulted from the complexity of the case and plaintiff's own
actions.
B
Judgment Delay
The parties acknowledge that the trial court orally rendered
its decision in this case on 25 February 2002, within three months
of the last trial date. Defendant's attorney then prepared the
proposed draft of the judgment for plaintiff's review. After
plaintiff requested and received extensions of time to review the
extensive draft, the equitable distribution judgment, which
includes twenty-five pages of findings and conclusions as well as
an additional forty-nine pages of property schedules, was filed on
8 July 2002. Considering the amount of property at issue, we do
not deem the time lapse of four months between the trial court's
announcement of its decision in open court and formal entry of the
judgment to be unreasonable under the circumstances of this case.
Cf. Wall, 140 N.C. App. at 314, 536 S.E.2d at 654 (holding nineteen
months to be too long). Accordingly, this assignment of error isoverruled.
II
Plaintiff next assigns error to the trial court's denial of
her motion to amend the pretrial order to supplement values she had
only marked as “TBD” at the time the order was entered. Plaintiff
acknowledges that she failed to comply with the notice provision
contained in the pretrial order and did not move to amend until the
hearing had already commenced. In her brief to this Court,
plaintiff, however, argues that she was nevertheless entitled to
the amendment because evidence on the items of property in question
was not heard until several months after her request and defendant
therefore would not have been prejudiced by the amendment. This
argument is of no avail because at the time the trial court denied
plaintiff's 29 September 2000 motion, the hearing was scheduled for
conclusion during the week of 20 November 2000. It was only on 15
November 2000, through the filing by plaintiff of an interlocutory
appeal from the trial court's order denying her motion to amend,
that the continuation of the hearing was delayed until 13 August
2001. Consequently, had the trial court granted plaintiff's
motion, defendant would not have had the amount of time to prepare
as plaintiff now contends. This assignment of error is therefore
without merit.
III
Plaintiff also argues the trial court abused its discretion in
allowing Pulliam to testify as defendant's expert because, having
previously been hired as a joint expert for the parties, Pulliam'srepresentation of defendant created a conflict of interest.
We begin our analysis by noting that plaintiff has not cited
any authority in support of her proposition that the use by one
party of a former, privately obtained joint expert creates a
disqualifying conflict of interest between the expert and the other
party. This Court has also been unable to find any authority on
point but concludes that the issue can be resolved based solely on
the facts of this case.
The determination of whether expert opinion testimony is
admissible is within the sound discretion of the trial court.
McLean v. McLean, 323 N.C. 543, 556, 374 S.E.2d 376, 384 (1988).
In this case, shortly after their separation, the parties employed
Pulliam as a neutral expert to evaluate the parties' respective
medical practices for purposes of equitable distribution and
provided him with data on their medical practices. In October
1996, after receiving preliminary calculations from Pulliam,
plaintiff terminated her contract with Pulliam and objected to his
continued involvement as defendant's expert in the equitable
distribution action. The trial court entered an order dated 1
December 1997 finding:
[T]he parties' original agreement to jointly
employ . . . Pulliam to evaluate their
respective individual medical practices . . .
as an independent[,] impartial evaluator did
not create a confidential relationship between
. . . Pulliam with either party hereto . . . .
[T]here would be no conflict of interest, and
no prejudice to . . . [p]laintiff, for . . .
Pulliam to continue to evaluate the parties'
respective individual medical practices as an
expert for . . . [d]efendant in this equitabledistribution action . . . .
The trial court then granted defendant permission to continue using
Pulliam's services and ordered:
2. That . . . Pulliam shall be entitled
to utilize all data previously provided to him
by both parties . . . and to share all such
data received by him from both parties hereto
with . . . [d]efendant and with this Court;
3. That . . . [p]laintiff shall be
entitled to utilize and to provide to her
substitute expert witness all data previously
provided to . . . Pulliam by both parties
hereto . . . .
We agree with the trial court's reasoning. In hiring Pulliam
as a joint expert, plaintiff had no expectation of confidentiality.
The data collected by Pulliam was always intended to be shared by
the parties and thus could not have resulted in a conflict of
interest after plaintiff terminated her contract with Pulliam.
Moreover, in light of the trial court's instruction to make
available to each side the data previously provided to Pulliam,
neither party suffered prejudice from Pulliam's continued
representation of defendant. As such, the trial court did not
abuse its discretion in allowing Pulliam to testify as defendant's
expert at trial. See McLean, 323 N.C. at 556, 374 S.E.2d at 384.
IV
Plaintiff further contends the trial court abused its
discretion in considering as a distributional factor in defendant's
favor his 85% separate property interest of his 72% ownership in
Salem Urological, P.A. because the parties had stipulated in the
pretrial order that defendant's interest in the medical practicewas to be classified as marital property.
See White v. White, 312
N.C. 770, 777, 324 S.E.2d 829, 833 (1985) (appellate review of an
equitable distribution award “is limited to a determination of
whether there was a clear abuse of discretion”).
“An admission in a pleading or a stipulation admitting a
material fact becomes a judicial admission in a case and eliminates
the necessity of submitting an issue in regard thereto to the
jury.”
Crowder v. Jenkins, 11 N.C. App. 57, 62, 180 S.E.2d 482,
485 (1971). It has long been established that judicial admissions
are binding on the pleader as well as the court “unless modified at
the trial to prevent manifest injustice.”
Inman v. Inman, 136 N.C.
App. 707, 713-14, 525 S.E.2d 820, 824 (2000);
see N.C.G.S. § 1A-1,
Rule 16(a) (2001).
In this case, defendant had moved the trial court on 20 March
2000 to change the classification in the pretrial order of his
interest in Salem Urological, P.A. from marital to separate
property. The trial court denied defendant's motion but allowed
Pulliam to testify, for the limited purpose of establishing
distributional factors, that 85% of defendant's 72% interest in the
practice was gifted to defendant by his father and therefore
remained his separate property. In the equitable distribution
judgment, the trial court
found as fact, and consistent with the
pretrial order, that defendant's interest in Salem Urological, P.A.
constituted
marital property. Based on Pulliam's testimony though,
the trial court then considered
as a distributional factor under
N.C. Gen. Stat. § 50-20(c)(12), allowing for the consideration of“[a]ny other [distributional] factor which the court finds to be
just and proper,” N.C.G.S. § 50-20(c)(12) (2001) (same provision as
in 1994),
(See footnote 3)
that:
the value of marital property being
distributed to . . . [d]efendant would have
been reduced by $207,400.00 if . . .
[d]efendant's medical practice had in fact
been placed on the proper Pre-Trial Order
Schedule before such Pre-Trial Order was
entered by the [trial] [c]ourt (which would
have increased the amount of the distributive
award payable by . . . [p]laintiff to . . .
[d]efendant).
In weighing the various distributional factors found in favor of
both plaintiff and defendant, the trial court ultimately concluded
that an equal division of the marital property was fair and
equitable.
It is clear from the judgment that the trial court did not
change the stipulated classification of the medical practice but,
in its discretion, granted defendant the benefit of a
distributional factor out of fairness considerations. As such a
consideration was proper under section 50-20(c)(12) and fell within
the spirit of
Inman (allowing for the modification of judicial
admissions to prevent manifest injustice), we see no abuse of
discretion in the trial court's treatment of defendant's separate
property interest in the medical practice as a distributional
factor. We further note that, in finding distributional factors,
the trial court has the discretion to consider inequities based onthe classification of property as marital and that this does not
have the effect of undermining the classification of the property,
which will still be, and in this case was in fact, distributed as
marital.
See, e.g., Collins v. Collins, 125 N.C. App. 113, 116,
479 S.E.2d 240, 242 (1997) (a spouse's contribution of his separate
property as a gift to the marital estate, in that case property
held by the entireties, is a distributional factor under
subdivision (c)(12));
Minter v. Minter, 111 N.C. App. 321, 329-30,
432 S.E.2d 720, 725-26 (1993) (holding that even though the trial
court did not abuse its discretion in concluding that a spouse had
failed to meet his burden of proving certain property to be his
separate property, the trial court should have considered this
separate property contribution to the marital estate as a
distributional factor);
see also Cable v. Cable, 76 N.C. App. 134,
137, 331 S.E.2d 765, 767 (1985) (classification, evaluation, and
distribution are separate and distinct steps to be followed by the
trial court in an equitable distribution proceeding).
V
Plaintiff further asserts the trial court abused its
discretion in failing to consider as a distributional factor the
passive post-separation increase in defendant's stock in Carolina
Physicians Associates, P.A. This argument, however, does not
comport with the assignment of error referenced by plaintiff, which
only attacks the trial court's date-of-separation valuation of the
stock. Accordingly, plaintiff's argument is deemed abandoned.
See
N.C.R. App. P. 10(a) (“the scope of review on appeal is confined toa consideration of those assignments of error set out in the record
on appeal”).
VI
Finally, plaintiff contends the trial court abused its
discretion in failing to consider as a distributional factor the
post-separation increase in the value of Salem Trust Bank stock.
During the hearing on 15 August 2001, the trial court
indicated its willingness to consider this increase in value as a
distributional factor and told plaintiff it would accept an offer
of proof as to the post-separation value of the stock if she were
to make one. In her brief to this Court, plaintiff does not assert
and a review of the transcript does not indicate that (1) her
counsel presented evidence on the amount of the post-separation
increase of the stock or (2) even argued for the finding of such a
distributional factor when the trial court reached the
distributional portion of the trial in November 2001. In light of
plaintiff's failure to pursue the issue at trial and offer any
evidence on the alleged increase in the stock value, the trial
court did not abuse its discretion in failing to find the contended
distributional factor.
See Truesdale v. Truesdale, 89 N.C. App.
445, 450, 366 S.E.2d 512, 516 (1988) (the trial court must only
consider those distributional factors raised by the evidence).
Plaintiff's remaining assignments of error not raised in her
brief are deemed abandoned.
See N.C.R. App. P. 28(a).
Affirmed.
Judges CALABRIA and ELMORE concur.
Footnote: 1