Appeal by defendant from orders entered 1 July 2003 and 5
September 2003 by Judge J.H. Corpening, II, in New Hanover County
District Court. Heard in the Court of Appeals 12 October 2004.
Johnson Lambeth & Brown, by Anna Averitt, and Carlton
Prickett, for the plaintiff-appellee.
Lea, Rhine & Rosbrugh, by Lori W. Rosbrugh, for defendant-
appellant.
THORNBURG, Judge.
Keith H. Childers (“defendant”) appeals from an equitable
distribution, alimony, and attorney fees order entered 1 July 2003
and an order denying defendant's request for a decrease in his
child support and post-separation support obligations entered 5
September 2003.
Beverly J. Childers (“plaintiff”) and defendant were married
on 30 March 1985 and have two children from the marriage, born 7
May 1988 and 1 September 1991. Plaintiff and defendant separated
on 14 July 2002. On 15 July 2002, plaintiff filed a complaint for
child custody, child support, post-separation support, alimony,equitable distribution and attorney fees. On 23 September 2002,
the district court entered an order requiring defendant to pay
child support and post-separation support. On 11 February 2003,
defendant filed a motion requesting that the court reduce his child
support payments and eliminate his post-separation support
payments. A hearing on these matters was conducted on 11 and 12
March 2003 in New Hanover County District Court. The court issued
orders on 1 July 2003 and 5 September 2003 addressing these
matters. On appeal, defendant contends that the trial court erred
in its classification and distribution of a First Union CAP
account, in making an unequal distribution to plaintiff, in
awarding alimony to plaintiff, and in denying defendant's motion to
decrease child support and post-separation support.
Classification of the First Union CAP Account
Defendant first argues that the trial court erred by finding
and concluding that the First Union CAP account was marital
property. N.C. Gen. Stat. . 50-20 requires the trial court to
classify the parties' property as marital or separate. This
section defines marital and separate property as follows:
“Marital property” means all real and personal
property acquired by either spouse or both
spouses during the course of the marriage and
before the date of the separation of the
parties, and presently owned, except property
determined to be separate property or
divisible property . . . . It is presumed that
all property acquired after the date of
marriage and before the date of separation is
marital property except property which is
separate property . . . . This presumption
may be rebutted by the greater weight of the
evidence.
“Separate property” means all real and
personal property acquired by a spouse before
marriage or acquired by a spouse by bequest,
devise, descent, or gift during the course of
the marriage . . . . Property acquired in
exchange for separate property shall remain
separate property regardless of whether the
title is in the name of the husband or wife or
both and shall not be considered to be
marital property unless a contrary intention
is expressly stated in the conveyance. The
increase in value of separate property and the
income derived from separate property shall be
considered separate property.
N.C. Gen. Stat. § 50-20(b)(1),(2)(2003).
It is undisputed that the property at issue was acquired
during the marriage, before the date of separation, and is
presently owned. Defendant, however, contends that the trial court
erred by not classifying a portion of the account as defendant's
separate property. Specifically, defendant points to evidence that
his father provided $10,000 and his mother provided $3,000 to fund
the account to further his contention that portions of the account
are defendant's separate property.
The trial court made the following finding of fact in regard
to these events:
At separation, the parties had a joint account
at First Union which consisted of $9,922.32 in
the “money market account” and 3100 shares of
Parametric Technology Corp. stock at $3.06 per
share, for a total value, at separation of
$19,408. Defendant contended that this
account contained money that he had received
from his father and had used the funds and
invested them on his father's behalf in
Parametric Technology stock. Defendant
further contended that the account contained
money that he had received from his mother to
invest in Terex stock but that he had failed
to invest said sum for her. The Court finds
that funds were deposited into and withdrawnfrom this account by Defendant on a regular
basis; that Defendant bought and sold
Parametric Technology stock several times
since 1997; that the funds received from said
sales were, from time to time, a part of this
CAP account; and that Defendant reported the
gains and losses on these sales of stock on
the parties' joint tax returns for the
applicable years. The Court finds that
Defendant cannot trace the funds received from
his father and his mother into the funds which
were on deposit at the time of separation and
the Court therefore finds that the balance in
the CAP account at separation is martial
property.
A trial court's determination that property is to be labeled
marital or separate will not be disturbed on appeal if there is
competent evidence to support the determination.
Minter v. Minter,
111 N.C. App. 321, 329, 432 S.E.2d 720, 725,
disc. review denied,
335 N.C. 176, 438 S.E.2d 201 (1993). After careful review of the
record on appeal, we conclude that the trial court did not err in
classifying this account as marital property.
In
Minter, the defendant presented evidence that he received
inheritances of investment securities, and that he purchased
various other assets with funds from the sale of these
inheritances.
Id. at 323-24, 432 S.E.2d at 722. There was no
dispute that the contested assets were acquired during the
marriage. This Court found that “[o]nce this showing [that the
assets were acquired during the marriage] had been made, the burden
of proof necessary to show that the assets were marital had been
met. The burden then shifted to the defendant to show that the
source of the contested property was separate property[.]”
Id. at
327, 432 S.E.2d at 724.
The defendant in
Minter testified that hecould not trace all of the various assets he inherited to the
assets he and his wife owned on the date of separation.
Id. at
328, 432 S.E.2d at 725. The defendant had placed funds from
various sources into the various accounts, and from these accounts
other investments were purchased, including the contested assets.
Id. at 323, 432 S.E.2d at 722.
As in
Minter, the contested assets in the present case were
acquired during the marriage but defendant argued that separate
funds were used to acquire these assets. However, just as in
Minter, there is competent evidence in the record to support the
trial court's determination that defendant was unable to trace the
funds he argued were his separate property to assets present in the
CAP account at the time of the parties' separation. Defendant
testified that the CAP account was his and plaintiff's account and,
that during the marriage, funds from the account were used to pay
the bills of the parties. No detailed records were offered by
defendant accounting for any portion of the account attributable to
defendant's parents except for cancelled checks for $10,000 and
$3,000. Nor does the record reveal that defendant presented more
than a few months of the records of the deposits and disbursements
made during the marriage. Thus, we conclude that the trial court
correctly determined that defendant failed to carry his burden of
proof to show that any part of this account was his separate
property.
Unequal Distribution of the Marital Assets
Defendant next contends that the trial court abused its
discretion in making an unequal division of the marital property.
However, defendant fails to cite any authority in support of this
argument. Accordingly, these assignments of error are deemed
abandoned. N.C. R. App. P. 28(b)(6)(2003).
Alimony
Defendant next argues that the trial court erred by awarding
alimony to plaintiff. Specifically, defendant argues that the trial
court erred by using the earning capacity standard to determine
alimony without also entering a finding that defendant is
deliberately suppressing his income to avoid family
responsibilities.
[A]n award of alimony may be based upon the
supporting spouse's ability to earn as
distinguished from his actual income . . . when
it appears from the record that there has been
a deliberate attempt on the part of the
supporting spouse to avoid his financial family
responsibilities by refusing to seek or to
accept gainful employment; by willfully
refusing to secure or take a job; by
deliberately not applying himself to his
business; by intentionally depressing his
income to an artificial low; or by
intentionally leaving his employment to go into
another business.
Bowes v. Bowes, 287 N.C. 163, 171-72, 214 S.E.2d 40, 45 (1975).
Moreover, this Court has held in the context of a child support
order that “'[i]t is not enough that there may be evidence in the
record sufficient to support findings which
could have been made.
The trial court must itself determine what pertinent facts are
actually established by the evidence before it . . . .'”
Atwell v.Atwell, 74 N.C. App. 231, 234, 328 S.E.2d 47, 49 (1985)(quoting
Coble v. Coble, 300 N.C. 708, 712, 268 S.E.2d 185, 189 (1980).
In the case at bar, the trial court's order awarding alimony
does not contain a specific finding that defendant is deliberately
depressing his income to avoid family responsibilities. Plaintiff
contends that any failure by the trial court to make this specific
finding is cured by the order refusing to modify post-separation
support and child support, which was based on the same evidence and
does contain such a finding. We are unconvinced, however, that the
trial court's finding in a separate order satisfies
Atwell, and thus
remand this issue to the trial court to make a specific finding as
to whether defendant was deliberately depressing his income, which
would support an award of alimony.