An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-455


Filed: 06 April 2004


v .                         Pitt County
                            No. 98 CVD 394

    Appeal by plaintiff from orders entered 1 May 2002, 2 May 2002, and 7 October 2002 by Judge P. Gwynett Hilburn in Pitt County District Court. Heard in the Court of Appeals 15 January 2004.

    Michelle D. Reingold for plaintiff-appellant.

    Jeffrey L. Miller for defendant-appellee.

    STEELMAN, Judge.

    Plaintiff, Elizabeth Sloan Hitt, appeals the trial court's determination that an equal division and distribution of the marital and divisible estate was equitable following her divorce from defendant, John F. Hitt. For the reasons discussed herein, we affirm.
    Plaintiff and defendant were married on 19 July 1986. No children were born of the marriage. Plaintiff and defendant separated on 24 January 1997 and were divorced on 8 June 1998.    Prior to the marriage, plaintiff owned considerable property. She was the owner of a residence, several farms, a shopping center, an apartment complex, lots at Ocracoke, and several financial accounts. Defendant came to the marriage with approximately $50,000, a retirement account, some personal items, and a house inherited from his brother. Additional facts will be discussed in the context of plaintiff's assignments of error.
    We first note that the distribution of marital property is in the discretion of the trial court, and the exercise of that discretion will not be disturbed in the absence of clear abuse. White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985). Thus, the trial court's ruling in equitable distribution cases receives great deference and may be upset only if it is so arbitrary that it could not have been the result of a reasoned decision. Id. The trial court's findings of fact are conclusive if supported by any competent evidence. Humphries v. City of Jacksonville, 300 N.C. 186, 187, 265 S.E.2d 189, 190 (1980). The mere existence of conflicting evidence or discrepancies in evidence will not justify reversal. Coble v. Richardson Corp. of Greensboro, 71 N.C. App. 511, 518, 322 S.E.2d 817, 822 (1984).
    In her first assignment of error, plaintiff argues her due process rights were violated because the trial court did not enter an order until some eight months after the conclusion of the trial. We disagree.
    In Wall v. Wall, this Court held a delay of nineteen months from the date of trial to the entry of an equitable distribution judgment was not a de minimis delay and a further hearing should be conducted upon remand of the case. 140 N.C. App. 303, 314, 536 S.E.2d 647, 654 (2000). At that hearing, the parties were to be given the opportunity to present “additional evidence as to any substantial changes in their respective conditions or post-trial changes, if any, in the value of items of marital property.” Id.
    We find the instant case to be distinguishable from Wall. In this case, the trial judge circulated proposed findings of fact to the parties on 30 November 2001, approximately three and a half months after the final hearing. After reviewing the proposed findings, counsel for defendant noted some omissions of property values. A further hearing was held on 22 March 2002 regarding the omissions. After the hearing, the trial court made adjustments in its original calculations and entered a final order and judgment on 1 May 2002. Following entry of judgment, plaintiff filed a motion for a new trial under Rule 59 of the North Carolina Rules of Civil Procedure. This motion alleged substantial and significant changes in the conditions of the parties “[d]ue to the length of time between the beginning of the trial of this matter in March, 2001, the announcement of the Order, and the actual entry of the finalOrder....”
    On 2 August 2002 a hearing was held on this motion, at which time the trial court received evidence from both parties concerning the alleged changes in their circumstances. The trial court entered an order on 3 October 2002, which concluded that plaintiff had shown no prejudice as a result of the delay in the entry of the judgment and denied the motion for a new trial.
    In Wall, there was a nineteen month delay from the date of trial and the entry of judgment. 140 N.C. App. at 314, 536 S.E.2d at 654. In this case there was a delay of approximately seven and a half months - from 20 August 2001, the date of the final hearing until 1 May 2002, the date of the entry of judgment, with one hearing conducted during the interim on 22 March 2002. This was a complex case, involving a substantial amount of property and very difficult issues. Taking all of this into consideration, a seven and a half month delay is still too long a delay between trial and entry of judgment.
    However, in this case we do not find the delay to be prejudicial. Upon the filing of the plaintiff's motion for a new trial, the trial court conducted an evidentiary hearing where both parties were allowed to present evidence on the issue of whether there had been any substantial or material changes in the positions of the parties. The trial court found plaintiff to have sufferedno prejudice.
    In Wall, the remedy for an unjustified delay in the entry of an equitable distribution judgment was for the trial court to conduct further hearings where the parties could offer evidence of changes in their respective conditions following the original hearing. 140 N.C. App. at 314, 536 S.E.2d at 654. We find that such a hearing took place here, pursuant to plaintiff's Rule 59 motion and thus, an additional hearing is not required. This assignment of error is without merit.     
    In her second assignment of error, plaintiff argues the trial court erred by failing to: (1) classify and distribute a check from FEMA; and (2) make findings and conclusions concerning a certificate of deposit that was in the husband's name. We disagree.
    In 1996, real estate belonging to plaintiff was damaged by hurricane Fran. In October 1996, FEMA issued a check to Mr. Hitt in the amount of $5914.00. At trial, plaintiff's counsel, Mr. Miller, examined the defendant concerning this check as follows:
        [Mr. Miller]: You didn't give this check to her did you?

        [Mr. Hitt]: I probably did. I put it in the joint account. I sure didn't negotiate it.

        [Mr. Miller]: Your testimony under oath is that you did not negotiate this FEMA check?
        [Mr. Hitt]: That is right. I did not - I may have deposited it into the joint account. Now what you are trying to say -

        [Mr. Miller]: I'm not trying to say anything.

        [Mr. Hitt]: Did I negotiate it for myself, no, I did not. I did not and never have, I'll swear to that. Whatever came in there from FEMA was for repair of that house and it all went into the joint account, I never took any of that money.
    Plaintiff contends defendant's statement that, “I may have deposited it in the joint account” created an issue of fact, which the trial court was obligated to resolve. However, following this testimony there was a lengthy exchange between counsel where it was discussed that defendant had been provided, in discovery, with bank records showing the FEMA check had been deposited into the parties' joint account. At the conclusion of this exchange, plaintiff's counsel stated, “[i]t was deposited where it should have been deposited as Mr. Hitt said it was.” Given this statement, it was unnecessary for the trial court to make specific findings concerning the FEMA check. Regardless, the trial court did classify the joint checking account, to which the FEMA check was deposited, as marital property and distributed it as such.     
    Further, plaintiff entered into a pretrial order, in which plaintiff and defendant stipulated that each had disclosed the existence of all property, both separate and marital, to which eachmay have claims. The pretrial order set out the issues to be ruled on by the trial court and contained an attached list of exhibits of the property to be classified, valued, and distributed. Such an order, “when entered, controls the subsequent course of the action, unless modified at the trial to prevent manifest injustice.” N.C. Gen. Stat. § 1A-1, Rule 16(a) (2003). Likewise, “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.” White v. Davis, ___ N.C. App. ___, ___, 592 S.E.2d 265, ___ (2004). No where on the list of marital property to be divided was there any request, claim, or notice regarding any FEMA check which required further consideration or findings by the trial court. At no time did plaintiff make a motion to modify the pretrial order to include the FEMA check. The pretrial order was signed by the trial court and both parties to the action, and the trial court properly tried the case in reliance on the pretrial order and its stipulations.
    The certificate of deposit was included in a pretrial order dated 13 March 2001. In the pretrial order, the parties stipulated defendant's First Union Bank pension was his separate property and not subject to equitable distribution. The certificate of deposit originated from a lump sum payment defendant received from his pension after the date of separation. Additionally, the trialcourt made a finding of fact as to defendant's pension in accordance with the stipulation in the pretrial order. This assignment of error is without merit.
    In her third assignment of error, plaintiff argues the trial court erred by classifying jewelry given by defendant to plaintiff during the marriage as marital property. We disagree.
    “[P]roperty acquired by gift from the other spouse during the course of the marriage shall be considered separate property only if such an intention is stated in the conveyance.” N.C. Gen. Stat. § 50-20(b)(2) (2003). The party attempting to show the item's separate nature must prove by a preponderance of the evidence that the gift was given with such an intention. Milner v. Littlejohn, 126 N.C. App. 184, 188, 484 S.E.2d 453, 456 (1997). Defendant testified he purchased the jewelry with the intent of making a gift to plaintiff. Plaintiff contends this statement alone demonstrates an intent that the jewelry be plaintiff's separate property. This testimony merely shows defendant intended the jewelry to be a gift. Plaintiff failed to prove by a preponderance of the evidence that defendant intended for the jewelry to be her separate property. Accordingly, the trial court properly classified the jewelry as marital property. This assignment of error is without merit.
    In her fourth assignment of error, plaintiff argues the trial court abused its discretion by dividing the property equally wherethe evidence showed that an unequal division was equitable. We disagree.
    It is well established that where matters are left to the discretion of the trial court, our review is limited to a determination of whether there was a clear abuse of discretion. Clark v. Clark, 301 N.C. 123, 128, 271 S.E.2d 58, 63 (1980). After a careful review of the record, we find no abuse of discretion. This assignment of error is without merit.
    In her fifth assignment of error, plaintiff argues the trial court erred by failing to make a conclusion of law that classified the property as either separate or marital property. We disagree.
    In this case, the trial court did classify property, but did so in its findings of fact rather than as a conclusion of law. “Generally, a judgment is in a form that contains findings, conclusions, and a decree.... The failure to follow this precise form, however, is not fatal to the judgment” since the adequacy of a writing claimed to be a judgment “is to be tested by its substance rather than its form.” Langston v. Johnson, 142 N.C. App. 506, 508, 543 S.E.2d 176, 178 (2001). Here, the trial court made findings of fact regarding the classification and value of the properties at issue, which allowed the parties to determine how the trial court had classified the items at issue. This assignment of error is without merit.    In her sixth assignment of error, plaintiff argues the trial court erred by ordering the distribution of the parties' 1996 joint income tax refund without making findings of fact and conclusions of law concerning this item of property where it was not classified. We disagree.
    Finding of Fact 27 in the judgment states: “The parties acquired various items of jewelry during their marriage, which are classified as marital property, and which are described and valued at separation as follows:” The order then goes on to list fifteen items and their values, which included: jewelry, the 1996 joint income tax refund check, a utility trailer, and a mobile home. Clearly, the intent of the paragraph was to classify the fifteen items as marital property and to assign value to each item. While there is no specified conclusion of law classifying the 1996 joint income tax refund check as marital property, as noted above this conclusion is not fatal. This assignment of error is without merit.
    In her seventh assignment of error, plaintiff argues the trial court erred by omitting defendant's social security benefits from its findings of fact concerning defendant's monthly income. We disagree.
     Social Security benefits of one party are not assignable to the other spouse in an equitable distribution award since they areconsidered the separate property of the spouse to whom they have accrued. Cruise v. Cruise, 92 N.C. App. 586, 589, 374 S.E.2d 882, 884 (1989). However, such benefits can be considered in an equitable distribution proceeding when dividing the parties' real or personal property as may be fair and equitable when considering all the circumstances. Id.
    Paragraph 15 of the findings of fact stated: “The income enjoyed by the parties during their marriage came from their respective social security retirements, as well as income from their separate and marital properties.” It is thus apparent that the trial court did consider defendant's social security benefits. This assignment of error is without merit.
    In her eighth and final assignment of error, plaintiff argues the trial court erred by denying her motion for a new trial. We disagree.
    Rule 59(a)(4) of the North Carolina Rules of Civil Procedure provides, in pertinent part, that:
        A new trial may be granted to all or any of the parties on all or part of the issues for any of the following causes or grounds: ... (4) Newly discovered evidence material for the party making the motion which he could not, with reasonable diligence, have discovered and produced at the trial[.]

N.C.R. Civ. P. 59(a)(4)(2003). A motion to set a verdict aside and for a new trial pursuant to this rule is directed to the discretionof the trial judge and will not be reversed absent a showing of abuse of that discretion. Worthington v. Bynum, 305 N.C. 478, 482, 290 S.E.2d 599, 602 (1982). In addition, the weight and credibility of the evidence in an equitable distribution trial is for the trial court to determine. Hunt v. Hunt, 85 N.C. App. 484, 491, 355 S.E.2d 519, 523 (1987).
    In reviewing the record of the instant case, there is no evidence the trial court abused its discretion in denying plaintiff's motion for a new trial. Plaintiff contends there was a change in the value of two pieces of separate property: (1) marital property known as Havens House, and (2) separate property belonging to plaintiff, known as the K-Mart lease.
    Plaintiff presented evidence from an appraiser that Havens House had decreased in value from the date of trial until the date the court entered its order. Mr. Hitt, on the other hand, presented evidence from two separate appraisers who found the property had increased in value during that same time period. “The trial judge is the sole arbiter of credibility and may reject the testimony of any witness in whole or in part.” Fox v. Fox, 114 N.C. App. 125, 134, 441 S.E.2d 613, 619 (1994). Here, there was a conflict in the evidence as to whether the value of Havens House had increased or decreased. The trial judge rejected plaintiff's appraisal in favor of the ones submitted by Mr. Hitt. The trialcourt did not abuse its discretion.
    Second, during the hearing for a new trial, plaintiff argued that the loss of the rents from the K-Mart lease decreased the value of the property and therefore, the judge should have ordered a new trial. At the equitable distribution hearing the court calculated the rents plaintiff received from K-Mart in determining that an equal division of the property was equitable. Plaintiff contends that since the court waited so long in entering the equitable division order, the loss of the rents affected plaintiff's financial situation and the court should therefore, reconsider its decision.
    The court signed the judgment and order distributing the property on 1 May 2002 and the judgment was filed on 2 May 2002. Plaintiff testified at the hearing that she received full rents from K-Mart for the month of May 2002 and a portion of the rents for June 2002. Accordingly, plaintiff failed to show a substantial change in circumstances from August 20 to May 1, as she received the same amount for rents throughout this period. The judgment speaks as of 1 May 2002, thus anything which occurred after that date is irrelevant. Plaintiff has not been prejudiced nor did the trial judge abuse her discretion. This assignment of error is without merit.
    Judges HUDSON and TYSON concur.
    Report per Rule 30(e).

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