An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA03-344


Filed: 17 February 2004


v .                         Iredell County
                            No. 98 CVD 2337


    Appeal by defendant from order entered 30 July 2002 by Judge Samuel A. Cathey, District Court, Iredell County. Heard in the Court of Appeals 13 January 2004.

    Eisele, Ashburn, Greene & Chapman, P.A., by John D. Greene, for plaintiff.

    Crowe & Davis, P.A., by H. Kent Crowe, for defendant.

    WYNN, Judge.

    By this appeal, Defendant Jeffrey McHargue presents the following issues regarding the trial court's equitable distribution order: (1) Did the trial court erroneously fail to classify plaintiff's stock; (2) were Findings of Fact 8, 7 and 18 supported by competent evidence; and (3) Did the trial court abuse its discretion by concluding Plaintiff was entitled to an unequal distribution of the marital property. We affirm in part and remand for further consideration in part.
    The pertinent facts indicate Jeffrey and Marlene McHarguemarried in 1981, separated in September 1998 and divorced in October 1999. On 18 November 1991, Jeffrey McHargue was injured in a motorcycle accident which rendered him unable to work for several months. After the accident, Marlene McHargue, who had not previously worked, assumed her husband's duties related to his paper route and eventually obtained employment with Zimmer Patient Care.
    Before the parties separated, Marlene McHargue received 400 shares of stock options from Zimmer Patient Care which she liquidated shortly after separation for a gross amount of $23,726.64 and a net amount of $13,844.49. After the parties separated, Marlene McHargue received a second grant of 200 stock options in October 1998 which she could not liquidate for three years. During her employment, she also accumulated a small retirement account. On 1 June 2000, Marlene McHargue stopped working for Zimmer Patient Care and was placed on complete disability due to severe fibromyalgia and a 10-pound lifting restriction. At the time of the equitable distribution hearing, she had not resumed working due to her medical condition.
    In 1995, Jeffrey McHargue settled his lawsuit arising from the 1991 accident for $200,749.66, of which he received $75,726.96. With these proceeds, he paid $23,000 in marital debts and purchased a Lincoln log home for $27,032, taxes and shipping included. Due to the injuries arising from the accident, he did not work from 19 November 1991 to 22 June 1992; however, at the time of the hearing, he had not missed any days of work in the preceding 30 months.    In the equitable distribution order, the trial court awarded Marlene McHargue the proceeds of the liquidated stock and determined she would be the sole owner of the property on which the log cabin was located. The trial court also determined Marlene McHargue was entitled to an unequal division of the marital property. Jeffrey McHargue appeals.
    On appeal, Jeffrey McHargue first argues that the trial court erroneously failed to classify the stock as either marital, divisible, separate or mixed property. We disagree.
    In making an equitable distribution determination, a trial court must first identify and classify all property as marital, divisible, separate, or mixed property. Conway v. Conway, 131 N.C. App. 609, 613, 508 S.E.2d 812, 816 (1998) (in distributing marital assets, the trial court is required by N.C. Gen. Stat. § 50-20 to classify property as marital, separate, or mixed), disc. review denied, 350 N.C. 593, 537 S.E.2d 210-11 (1999); N.C. Gen. Stat. § 50- 20(a) (2001) (requiring court to determine what property is marital and divisible). 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.” Stewart v. Stewart, 141 N.C. App. 236, 247, 541 S.E.2d 209, 217 (2000).
    In Finding of Fact 18, the trial court stated:        The Defendant contends that the Pre-Trial Order did not contain the Wife's Team Share stocks with her employer and her retirement. The parties stipulated as to certain documents concerning the Wife's team share stocks from her employment. The Court finds that the Wife is not able to liquidate those stocks. The Court also finds that the Wife has a retirement of $1,813.00 and that she is not able to liquidate that pension.

Although this finding of fact does not classify Marlene McHargue's stock as either marital, divisible, separate or mixed, in Finding of Fact 17 on page 7 of the equitable distribution order   (See footnote 1)  , the trial court stated:
        The Court summarizes the value of the parties' marital property from the parties Pre-Trial Order which is attached as follows:


        Misc. Wife's stock and Retirement: $23,727 and $1,813.00.

Accordingly, as the trial court did classify Marlene McHargue's stock as marital, we find Jeffrey McHargue's contention as to classification to be without merit.
    Jeffrey McHargue next challenges the trial court's Finding of Fact 18, which addresses Marlene McHargue's stock options, as unsupported by competent evidence. We agree. Indeed, Marlene McHargue concedes on appeal that Finding of Fact 18 is inconsistent with the evidence. Our review of the transcript indicates that Marlene McHargue received two grants of stock options: 400 shares prior to separation which she liquidated shortly after the partiesseparated, and 200 shares post-separation. In Finding of Fact 18, the trial court seemingly confuses the two grants of stocks in its statement “The Court finds that the Wife has these stocks with a value of $13,844.49 although the Court finds that the Wife is not able to liquidate those stocks.” According to the record, $13,844.49 was the net amount Marlene McHargue received from the stock liquidation after taxes and other deductions. And, according to the record, Marlene McHargue was not able to liquidate the second grant of 200 shares for three years. Thus, Finding of Fact 18 is inconsistent with the evidence presented.
    As stated, the trial court correctly classified the portion of Marlene McHargue's stock received prior to separation. However, there is an inconsistency between Finding of Fact 18, which states the stock has a value of $13,844.49, and Finding of Fact 17 on page 7-8 of the order, which states the stock has a value of $23,727. Accordingly, we remand for a determination of the classification, valuation and distribution of Marlene McHargue's 200 shares of stock options received in October 1998 and a determination of the correct value of Marlene McHargue's 400 shares of stock options liquidated shortly after separation.
    In his next argument, Jeffrey McHargue contends the trial court should have classified Lot 135 as part marital and part separate property and should have either distributed the property to him or treated the value of the log cabin, $17,000   (See footnote 2)  , as adistributional factor. He contends the log cabin was purchased with the net proceeds of his 1995 personal injury settlement.
    In Johnson v. Johnson, 317 N.C. 437, 450-51, 346 S.E.2d 430, 438 (1986), our Supreme Court adopted the analytic approach to determining whether the proceeds from a personal injury settlement obtained during marriage should be classified as marital or separate property for purposes of equitable distribution. Under the analytic approach, “the portion of an award representing compensation for non-economic loss--i.e., personal suffering and disability--is the separate property of the injured spouse; the portion of an award representing compensation for economic loss-- i.e., lost wages, loss of earning capacity during the marriage, and medical and hospital expenses paid out of marital funds--is marital property.” Johnson, 317 N.C. at 447-48, 346 S.E.2d at 436. Jeffrey McHargue testified that he received a settlement of $200,749.66 which after attorney's fees and medical bills, netted him $75,726.96. He further testified that his lost wages amounted to $17,862.94 and this amount of the net proceeds should be treated as marital property. Accordingly, $57,864.02 of the settlement proceeds was his separate property. With this money, Jeffrey McHargue purchased the Lincoln log cabin kit for $27,032.
    Prior to his marriage, Jeffrey McHargue owned several lots of land, enumerated Lots 131, 135, 137, 139, 143, and 14.270 acres all located in the same vicinity. On Lot 135, prior to marriage, Jeffrey McHargue constructed a basement house. During his marriage, Jeffrey McHargue deeded all of the lots to Marlene andhimself as tenants by the entirety, which he concedes transformed his separate property into marital property.   (See footnote 3)  Accordingly, Lot 135 and the basement house were correctly classified as marital property.
    However, the trial court's findings of fact do not provide an adequate basis upon which we can determine whether the trial court correctly classified the log cabin as marital property. Therefore, we remand for further consideration as to whether Jeffrey McHargue's purchase of the log cabin constituted a gift to the marital estate or whether the log cabin was Jeffrey McHargue's separate property. See Caudill v. Caudill, 131 N.C. App. 854, 509 S.E.2d 246 (1998); Lewis v. Lewis, 98 N.C. App. 138, 389 S.E.2d 638 (1990).
    Finally, Jeffrey McHargue contends the trial court erred by concluding Marlene McHargue was entitled to an unequal distribution of marital property in her favor. Under N.C. Gen. Stat. § 50- 20(c), there shall be an equal division of marital property unless the trial court determines that an equal division is not equitable. If the court makes such a determination, then the court shall divide the marital and divisible property equitably. In making its determination, the trial court has to consider the twelve factors listed in N.C. Gen. Stat. § 50-20(c) and “the trial court must exercise its discretion in assigning the weight each factor should receive in any given case.” White v. White, 312 N.C. 770, 777, 324S.E.2d 829, 833 (1985). “It is well established that where matters are left to the discretion of the trial court, appellate review is limited to a determination of whether there was a clear abuse of discretion. A trial court may be reversed for abuse of discretion only upon a showing that its actions are manifestly unsupported by reason. A ruling committed to a trial court's discretion is to be accorded great deference and will be upset only upon a showing that it was so arbitrary that it could not have been the result of a reasoned decision.” Id.
    In this case, in making its determination that an unequal division of marital property in favor of Marlene McHargue was equitable, the trial court considered the health of the parties, the ability of the parties to work, the parties' marital and separate real estate and post-separation activities. Although Jeffrey McHargue contends there was not any evidence supporting Marlene McHargue's contention that she was disabled and unable to work, we conclude Marlene McHargue's testimony as to her condition, her application for disability, and evidence that she had not worked for approximately one year prior to the hearing competent evidence upon which the trial court concluded that she was unable to work. Jeffrey McHargue also argues the trial court did not consider his medical condition as a factor. However, in Finding of Fact 16 on page 7 of the Order, the trial court states Defendant did not prove contention number 1 of his Pre-Trial contentions for an unequal distribution. In that contention, Jeffrey McHargue states:        I was involved in a motor vehicle accident in 1991 and as a result of that accident I have a 30-40% permanent partial disability of my lower left leg. ...

Accordingly, the record shows the trial court considered and weighed all of the distributional factors. Given Marlene McHargue's inability to work due to her medical condition, we hold the trial court did not abuse its discretion in ordering an unequal division of marital assets in her favor.
    In sum, we conclude the trial court appropriately classified Marlene McHargue's first grant of stock options as marital property and did not abuse its discretion in determining an unequal division of assets was equitable in her favor. However, we remand to allow the trial court to (1) determine whether Marlene McHargue's second grant of 200 shares of stock received post-separation was divisible property, (2) determine the correct value of Marlene McHargue's first grant of stock options and (3) make adequate findings of fact regarding whether the log cabin constituted marital property.
    Affirmed in part, vacated in part and remanded for further consideration.
    Judges TIMMONS-GOODSON and McCULLOUGH concur.
    Report per Rule 30(e).

Footnote: 1
        The trial court's order contains clerical errors in its numeration in that there are two Findings of Fact enumerated 17.
Footnote: 2
        In its order, the trial court stated t hat although the tax value of the log cabin was $17,000, due to deterioration and disrepair, the cabin had a value of approximately $2,000.
Footnote: 3
        The 14.270 acres remained his separate proper ty. Defendant sold Lot 131 to Marlene McHargue's mother.

*** Converted from WordPerfect ***