An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-472


Filed: 4 May 2004


     v .                                 Wilkes County
                                        No. 97 CVD 1946

    Appeal by defendant from judgment entered 15 August 2002 by Judge Jeanie R. Houston in Wilkes County District Court. Heard in the Court of Appeals 13 January 2004.

    Michael D. Duncan and Daniel S. Johnson, for plaintiff appellee.

    James N. Freeman, Jr., and Dennis G. Martin, for defendant appellant.

    McCULLOUGH, Judge.

    This case arises out of a complaint seeking rescission of a deed based upon fraud and the return of separate personal property. The relevant facts are as follows: Plaintiff William Franklin Golds and defendant Marlene Miller Golds were married on 20 September 1985. The couple separated on 14 September 1991 and divorced on 16 October 1992. Plaintiff brought numerous items of separate personal property into the marriage. After the parties separated, plaintiff sought his separate personal property in the former marital home. Although plaintiff demanded the return of his property, defendant refused to comply.     The parties maintained a close relationship following the separation. Defendant picked up plaintiff's employment check on a regular basis and either cashed or deposited it in her bank account. Plaintiff, a long-distance truck driver, believed that there might be a chance of reconciliation because defendant visited with plaintiff after plaintiff returned from long trips for his employer.
    The parties held title to the marital home as tenants by the entirety. In May of 1992, defendant came to plaintiff's place of employment and asked plaintiff to sign documents which defendant claimed were necessary to refinance the former marital home. Plaintiff had just returned from a long trip and was preparing to leave for another one for his employer. Defendant directed plaintiff to sign the back page without showing him the front page. Plaintiff testified that he relied on defendant's representations that the documents were to refinance the marital residence. Later, plaintiff learned that the document he signed was a general warranty deed conveying his interest in the former marital home to defendant.
    Plaintiff filed a complaint seeking rescission of the deed based upon fraud and the return of items of his separate personal property. Defendant filed a motion for summary judgment on 10 August 1998, but that motion was denied. This matter was heard on 30 September 1998, 6 October 1998, 5 November 1998, and 11 March 1999. On 15 August 2002, the trial court ordered the return of several pieces of plaintiff's separate property and rescinded thewarranty deed. The court further determined that plaintiff and defendant were owners of the real property as tenants in common.
    Defendant appeals. On appeal, defendant argues that the trial court erred by: (I) denying her motion to dismiss and motion for summary judgment, (II) applying the incorrect burden of proof, (III) finding that there was sufficient evidence to prove fraud, (IV) making findings of fact that were not supported by competent evidence, and (V) failing to issue a judgment in a timely manner. We disagree and affirm the decision of the trial court.

I. Motion to Dismiss and Motion for Summary Judgment
    Defendant argues that the trial court erred in refusing to grant her motion to dismiss and her motion for summary judgment. Defendant's contention is that plaintiff's action should have been barred because it was an equitable distribution action that was brought five years after a divorce judgment had been entered. We disagree.
    Under N.C. Gen. Stat. § 50-11(e) (2003), “[a]n absolute divorce obtained within this State shall destroy the right of a spouse to equitable distribution under G.S. 50-20 unless the right is asserted prior to judgment of absolute divorce . . . .” However, “equitable distribution is not the sole means of property division available to former spouses, nor is every action between former spouses regarding property rights an equitable distribution action.” Sparks v. Peacock, 129 N.C. App. 640, 642, 500 S.E.2d 116, 118 (1998). Equitable distribution “does not displace the traditional principles of property ownership.” Hagler v. Hagler,319 N.C. 287, 290, 354 S.E.2d 228, 232 (1987). Thus, where there is not an equitable distribution, “the state of the title of property owned by either spouse or by both spouses is unaffected.” Id.
In this case, the parties were divorced. However, plaintiff never filed a claim for equitable distribution. Instead, he sued for fraud and asked for the return of several items of his separate property. Accordingly, defendant's assignment of error is overruled.
II. Burden of Proof     
    Defendant next argues that the trial court applied the incorrect burden of proof. We do not agree. Our Supreme Court has determined that in an action to set aside a deed, plaintiff's burden of proof is “the preponderance or greater weight of the evidence.” Walters v. Bridgers, 251 N.C. 289, 296, 111 S.E.2d 176, 180 (1959). In the case at bar, plaintiff sought to set aside a deed based on fraud, and the trial court correctly utilized the preponderance of the evidence standard. Therefore, this assignment of error is rejected.
III. Proof of Fraud
    Defendant contends that there was insufficient evidence to establish a claim for fraud. To establish a claim for fraud, the plaintiff must prove: “(1) [a] [f]alse representation or concealment of a material fact, (2) reasonably calculated to deceive, (3) made with intent to deceive, (4) which does in fact deceive, (5) result[s] in damage to the injured party.” Ragsdalev. Kennedy, 286 N.C. 130, 138, 209 S.E.2d 494, 500 (1974) (citations omitted).
    Here, plaintiff presented competent evidence showing that defendant brought him a document at his place of employment in May of 1992. Defendant told plaintiff that the document was to refinance the marital home, when in fact she knew that the document was a general warranty deed that would transfer plaintiff's interest in the property to her. This evidence indicates that there was a false statement, reasonably calculated to deceive, and made with the intent to deceive.
    The final two elements were also met. Plaintiff was deceived by these representations because he was induced into signing the deed. Finally, plaintiff was damaged because he conveyed all of his right, title, and interest in the marital home to defendant. Therefore, the trial court did not err in finding that plaintiff sufficiently alleged and proved fraud.
IV. Findings of Fact
    Defendant also objects to the trial court's findings of fact. In a civil trial before a judge, the trial court's findings of fact are conclusive on appeal if they are supported by competent evidence, even if there might be evidence to the contrary. Lyerly v. Malpass, 82 N.C. App. 224, 225, 346 S.E.2d 254, 256 (1986), disc. review denied, 318 N.C. 695, 351 S.E.2d 748 (1987). “The trial judge weighs the evidence, passes upon the credibility of witnesses and the weight to be given their testimony, and draws the reasonable inferences therefrom.” Id. at 225-26, 346 S.E.2d at256. “If different inferences may be drawn from the evidence, he determines which inferences shall be drawn and which shall be rejected.” Williams v. Insurance Co., 288 N.C. 338, 342, 218 S.E.2d 368, 371 (1975). The trial court sometimes makes findings of fact which resolve conflicts in the evidence; these findings are binding on appellate courts. Id.
    In her brief, defendant makes a general objection to the trial court's findings of fact. She suggests that the findings “came directly from [p]laintiff's evidence” and failed “to even mention [d]efendant's evidence.” We are not persuaded by this argument. The trial court was presented with conflicting evidence and ultimately had to make some credibility determinations. The fact that the court found plaintiff's evidence to be credible, while finding defendant's evidence not to be credible, is not erroneous. The essence of the trial court's duty is to weigh the evidence and determine which inferences shall be drawn from the evidence.
    More specifically, defendant objects to a portion of finding of fact 12: “After the parties divorced, the Plaintiff made a demand for the return of his separate property in which the Defendant refused to return these items.” However, plaintiff's own testimony indicates that he asked defendant to return his separate property:
        Q. Now all these items we've discussed, have you requested that [defendant] return those items to you, basically your separate property?

        A. Yes.
        Q. And, has she--

        A. No, no, I was going to, all this furniture I was going to just divide down the middle, all the furniture I'd bought. I was just trying to--


        Q. Do you remember when the last time you made demand on her before you went to an attorney to seek some help in getting this property back?

        A. I think I saw Bill in '93. Probably '91 or '92.

        Q. And approximately how many times did you make a request from her to return these items?

        A. Probably eight or ten.

    Since there is competent evidence in the record supporting this finding, this assignment of error is rejected.
    Defendant also objects to finding of fact 21 which stated that “There was no consideration in the Plaintiff conveying the deed of the Belle Meade residence to the Defendant.” As we have already indicated, there was evidence in the record to suggest that plaintiff's signature was procured through fraud. Plaintiff testified that defendant asked him to sign some documents in order to refinance the home. Later, plaintiff learned that the document he signed actually conveyed his interest in the house to defendant. While we acknowledge that there was some evidence going the other way, plaintiff's testimony is competent evidence that supports finding of fact 21.

V. Failure to Issue a Judgment in a Timely Manner    
    Defendant's final argument is that her due process rights were violated by the delay in the issuance of judgment. We see no merit in this contention because the cases defendant cites are distinguishable from the case at bar.
    First, defendant mentions an equitable distribution case in which we found that a nineteen-month delay between trial and judgment was inconsistent with the goal of distributing the marital property with as much certainty as possible. Wall v. Wall, 140 N.C. App. 303, 314, 536 S.E.2d 647, 654 (2000). Since the present case is not a claim for equitable distribution, we are less concerned about winding up and distributing marital property. Once again, this claim was limited to setting aside a deed and returning items of separate property.
    Second, defendant cites a case in which the long delay between the trial and the entry of judgment prevented the trial judge from accurately recalling the evidence. Baker v. Baker, 102 N.C. App. 792, 794, 404 S.E.2d 20, 21 (1991). In that case, we reversed the trial court and remanded for a new trial. Id. at 797, 404 S.E.2d at 23. However, the trial judge in the case at bar had no trouble recalling the evidence. In fact, prior to entering judgment, the trial court reviewed and listened to the tapes from all of the hearing dates. This measure provides assurance that the trial court considered all of the evidence and entered its judgment accordingly.     We have considered defendant's remaining arguments and find them to be unpersuasive. After a careful review of the record and the arguments of the parties, the trial court's order is
    Judges WYNN and TIMMONS-GOODSON concur.
    Report per Rule 30(e).    

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