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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the
print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
YVONNE EVERITTE BRITT (NOW SHANKS), Plaintiff, v. THOMAS M.
Filed: 18 January 2005
1. Divorce--equitable distribution--sixteen-month delay between hearing and order
The trial court did not err by entering an equitable distribution order sixteen months after
the equitable distribution hearing, because: (1) the Court of Appeals has declined to reverse late-
entered equitable distribution orders where the facts have revealed that the complaining party
was not prejudiced by the delay; (2) the instant case does not present a situation in which
changes in the value of marital or divisible property between the hearing and entry of the
equitable distribution order counsel in favor of additional consideration by the trial court when
plaintiff concedes that the marital home was the most significant item of property distributed, it
was sold prior to the equitable distribution hearing, and the value of the marital home will not
change for the purposes of equitably distributing the parties' marital property; and (3) plaintiff
failed to identify any potential change in circumstances that would have an impact upon the
equitable distribution order.
2. Divorce--equitable distribution--motion to set aside--motion for new trial
The trial court did not err by denying plaintiff wife's motions to set aside the equitable
distribution order under N.C.G.S. § 1A-1, Rule 60(b)(4) and to grant a new trial, because: (1) no
jurisdictional challenge has ever been raised; and (2) plaintiff does not assert that the district
court was without authority to enter the equitable distribution order.
3. Divorce--equitable distribution--unequal division
The trial court did not abuse its discretion in an equitable distribution case by granting an
unequal division of the parties' marital property in favor of defendant husband because although
plaintiff presented evidence that may have permitted contrary findings, the trial court's findings
are supported by competent evidence and are, in turn, sufficient to support the trial court's
Appeal by plaintiff from judgment entered 25 June 2003 by
Judge Nancy C. Phillips in Brunswick County District Court. Heard
in the Court of Appeals 3 November 2004.
Hosford & Hosford, P.L.L.C., by Sofie W. Hosford, for
The Del Re' Law Firm, by Benedict J. Del Re', Jr. for
Plaintiff Yvonne Britt (now Shanks) appeals from an equitable
distribution order granting an unequal division of the parties'
marital property to defendant Thomas Britt and from the denial of
her motion seeking relief from the equitable distribution order and
a new trial. We affirm.
The parties married on 8 November 1997, separated on 15 March
1999, and were divorced by judgment entered 24 May 2000. An
equitable distribution hearing was held on 19 February 2002. The
evidence at the hearing tended to show the following: Prior to the
marriage of the parties, Mr. Britt purchased two adjacent lots in
the Salt Marsh Cove Subdivision for $30,000. During the marriage
of the parties, Mr. Britt conveyed this property to himself and
Mrs. Shanks. The parties subsequently purchased a mobile home for
approximately $65,000 which they placed on the property. In
addition, the parties purchased a garage for $6,261, and paid
$32,066.57 for a carport, porch, concrete wall, permits and
landscaping of the property. The sum of the expenditures for the
property, the home, and related improvements was approximately
In 1999, Mr. Britt made an early withdrawal from his IRA
account in the amount of $64,000. He used approximately eighty
percent of this money to satisfy marital debt incurred in
purchasing the mobile home. The withdrawal was subject to an early
withdrawal penalty and taxation. In December 2000, Mrs. Shanks
conveyed the Salt Marsh Cove Lots and the mobile home to a third
party in consideration for $110,000 by a private sale exclusive of
a real estate broker or advertisement. The marital residence was the most substantial item of marital
property. Mrs. Shanks testified that the fair market value of the
marital residence was between $94,000 and $98,000 and its tax value
as of the date of separation was $101,700. Mr. Britt contended,
and the trial court found, that the fair market value of the
marital residence, including improvements, was $130,000 as of the
date of separation. The trial court also determined that the
marital estate included a Dodge truck, a Mitsubishi 3000 GT
automobile, and miscellaneous items valued at $1000.
As of the date of the hearing, Mrs. Shanks was fifty-one years
old and was earning $4,300 per month as the Director of Human
Services for the City of Sanford. Mr. Britt was sixty-six years
old and retired. He testified that he had hypertension and also
required knee replacement surgery. Mr. Britt further testified
that he was unable to work due to his knee problems but that he
received a Social Security check in the amount of $1032.00 per
On 25 June 2003, approximately sixteen months after the
equitable distribution hearing, the trial court entered its
equitable distribution order. The court determined that an equal
distribution of the property would not be equitable and awarded Mr.
Britt a fifty-five percent share of the parties' marital property.
Mrs. Shanks was ordered to pay Mr. Britt a distributive award of
$39,750, in three equal annual installments, to effect the
On 7 July 2003, Mrs. Shanks filed a motion alleging, inter
alia, that the entry of the equitable distribution order sixteenmonths after the equitable distribution hearing entitled her to
have the order set aside and a new trial conducted pursuant to
N.C.G.S. §§ 1A-1, Rules 59(a)(9) and 60(b)(4). Mrs. Shanks did
not make any argument to the trial court that either the value of
the marital property or the parties' respective conditions had
changed. The trial court denied Mrs. Shanks' motion.
Mrs. Shanks now appeals, contending that the trial court erred
by (1) entering the equitable distribution order sixteen months
after the equitable distribution hearing, (2) denying her motion to
set aside the late-entered order and grant a new trial, and (3)
awarding Mr. Britt an unequal distribution of the marital estate
where such an award is contrary to the evidence presented and
unsupported by sufficient findings of fact. For the reasons that
follow, the trial court's equitable distribution order and the
order denying Mrs. Shanks' motion to set aside the equitable
distribution judgment and for a new trial are affirmed.
 We first address Mrs. Shanks' argument that the trial
court erred by entering the equitable distribution order sixteen
months after the equitable distribution hearing. According to Mrs.
Shanks, entry of the order after the long delay violated this
Court's decision in Wall v. Wall, 140 N.C. App. 303, 313-14, 536
S.E.2d 647, 654 (2000). We are not persuaded.
In Wall, this Court held that, on the facts of that case, a
nineteen-month delay between the date of trial and the date of
disposition constituted more than a de minimis delay, and
require[d] that the trial court enter a new distribution order onremand. Id. at 314, 536 S.E.2d at 654. Given the nature of the
property involved in the case and the extensive delay, this Court
required the trial court [to] allow the parties to offer
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. Specifically, on remand, the
trial court was to
reconsider the evidence of the increase in
value of the husband's profit-sharing plan
following separation, treating such increase
as a distributional factor, . . . reconsider
the evidence offered by the husband on the
state of his health, make appropriate findings
about the evidence, and give it appropriate
weight in making a new distribution decision[,
and] give the parties an opportunity to offer
evidence on the changes, if any, in value of
the marital property since the trial. . . .
Id. The remainder of the equitable distribution order was
We observe that Wall establishes a case-by-case inquiry as
opposed to a bright line rule for determining whether the length of
a delay is prejudicial. See id.; Suzanne Reynolds, 3 Lee's North
Carolina Family Law § 12.114 (5th ed. rev. 2002). Indeed, since Wall,
this Court has declined to reverse late-entered equitable
distribution orders where the facts have revealed that the
complaining party was not prejudiced by the delay. See, e.g.,
White v. Davis, 163 N.C. App. 21, 26, 592 S.E.2d 265 (holding that
delay of seven months between hearing and entry of equitable
distribution order was not prejudicial), disc. review denied, 358
N.C.739, 603 S.E.2d 127 (2004). In the present case, the challenged equitable distribution
order was entered sixteen months after the hearing. Though Mrs.
Shanks contends that this Court's decision in Wall requires a
reversal of the untimely order, she has made no argument that the
circumstances that counseled in favor of reversing the order in
Wall are present in the case sub judice.
In Wall, potential changes in the value of marital or
divisible property between the hearing and entry of the equitable
distribution order warranted additional consideration by the trial
court. By contrast, in the instant case Mrs. Shanks concedes that
the marital home was the most significant item of property
distributed and that it was sold prior to the equitable
distribution hearing. She further admits that the value of the
marital home will not change for the purposes of equitably
distributing the parties' marital property. Thus, the instant case
does not present a situation in which changes in the value of
marital or divisible property between the hearing and entry of the
equitable distribution order counsel in favor of additional
consideration by the trial court.
Likewise, in Wall, potential changes in the relative
circumstances of the parties warranted additional consideration by
the trial court. In the instant case, Mrs. Shanks baldly asserts
that the trial court's late-entered order ignored . . . the impact
of a change in the parties' respective conditions after the trial,
but she has identified no potential change in circumstances that
would have an impact upon the equitable distribution order.
Indeed, Mrs. Shanks neither identified any change in the parties'respective conditions in her written motion for a new trial, nor
asserted that any had occurred during the motions hearing before
the trial court.
It is Mrs. Shanks' central position that the delayed entry of
the equitable distribution order, standing alone, entitles her to
a new hearing as a matter of law. We do not agree that Wall
establishes such a proposition. Moreover, we are unpersuaded that,
given the circumstances of the instant case, Mrs. Shanks was
prejudiced by entry of the equitable distribution order sixteen
months after the equitable distribution hearing. This assignment
of error is overruled.
 We next address Mrs. Shanks' argument that the trial court
erred by denying her motion to set aside the equitable distribution
judgment and grant a new trial. Though her brief lacks clarity
with respect to this argument, Mrs. Shanks apparently intends to
argue that this Court's decision in Wall entitles her to a new
trial pursuant to N.C.G.S. §§ 1A-1, Rules 59(a)(9) and/or 60(b)(4).
We do not agree.
N.C.G.S. § 1A-1, Rule 59(a)(9) (2003) is a catch-all provision
which permits a trial court to grant a new trial for any reason not
specifically enumerated in Rule 59 heretofore recognized as
grounds for new trial. A ruling under Rule 59(a)(9) is consigned
to the discretion of the trial court and will not be disturbed on
appeal absent an abuse of that discretion. Beneficial Mortgage Co.
v. Peterson, 163 N.C. App. 73, 84, 592 S.E.2d 724, 731 (2004). Inthe instant case, we discern no abuse of discretion in the trial
court's refusal to grant a new trial pursuant to Rule 59(a)(9).
N.C.G.S. § 1A-1, Rule 60(b)(4) (2003) provides that [o]n
motion and upon such terms as are just, [a trial] court may relieve
a party . . . from a final judgment . . . [if] [t]he judgment is
void. A Rule 60(b)(4) motion is only proper where a judgment is
'void' as that term is defined by the law. Burton v. Blanton, 107
N.C. App. 615, 616, 421 S.E.2d 381, 382 (1992). A judgment is
void only when the issuing court has no jurisdiction over the
parties or subject matter in question or has no authority to render
the judgment entered. Id.
In the instant case, we conclude that the trial court properly
denied Mrs. Shanks' motion to set aside the equitable distribution
judgment pursuant to Rule 60(b)(4). As already indicated, the
trial court did not commit reversible error in entering the order.
Further, no jurisdictional challenge has ever been raised, and Mrs.
Shanks does not assert that the district court was without
authority to enter the equitable distribution order. As such, the
record is bereft of any indication that the late-entered order is
void. This assignment of error is overruled.
 We next address Mrs. Shanks' argument that the trial court
erred by awarding Mr. Britt an unequal distribution of the marital
estate. Mrs. Shanks does not argue that the trial court failed to
consider one or more of the distributional factors required by G.S.
§ 50-20(c). Rather, she generally contends that the unequaldistribution is unsupported by sufficient findings of fact and is
contrary to the evidence presented. We do not agree.
The distribution of marital property is vested in the
discretion of the trial court and the exercise of that discretion
will not be upset absent clear abuse. Beightol v. Beightol
N.C. App. 58, 60, 367 S.E.2d 347, 348 (1988) (citation omitted).
In order to reverse the trial court's decision for [an] abuse of
discretion, we must find that the decision was unsupported by
reason and could not have been the result of a competent inquiry.
. (citation omitted). Accordingly, the [trial court's] findings
of fact are conclusive if they are supported by any competent
evidence [in] the record. Id
Pursuant to N.C.G.S. § 50-20(c) (2003), [t]here shall be an
equal division . . . of marital . . . and . . . divisible property
. . . unless the court determines that an equal division is not
equitable. If the court determines that an equal division is not
equitable, the court shall divide the marital property and
divisible property equitably. When making an unequal
distribution, the trial court must consider the factors enumerated
in G.S. § 50-20(c) and must make findings which indicate that it
has done so. See Collins v. Collins
, 125 N.C. App. 113, 117, 479
S.E.2d 240, 242 (1997). It is not necessary that the findings
recite in detail the evidence considered but they must include the
ultimate facts considered by the trial court. Armstrong v.
, 322 N.C. 396, 405-06, 368 S.E.2d 595, 600 (1988). In the instant case, the trial court made numerous findings
concerning the distributional factors upon which the parties
presented evidence including, inter alia
, the following:
68. In evaluating the statutory distributional factors
as presented by the parties, the court has
considered the following:
A. The income of the parties. The husband [receives]
Social Security, is retired and unable to work,
having income of $1032 per month and additional
income of [$]1500 per year from farm rental. The
wife earns in excess of $4300 per month from her
employment as Director of Human Services.
B. [Mrs. Shanks] and [Mr. Britt] both sold their prior
residences to form the marital residence herein
which was retained by [Mrs. Shanks] and sold by her
to purchase her new residence in Lee County of
which she has $55,000 in equity. The husband does
not have a separate residence.
C. [Mr. Britt] paid a debt of the marital residence
after the date of separation in the amount of
$46,814 and incurred a net penalty of $11,740, but
saved the marital estate interest. This was a tax
consequence pursuant to Factor 11 to [Mr. Britt].
The penalty should be considered as a factor in the
distributive award and not as a marital expense.
D. [Mr. Britt] maintained the marital property after
the date of separation, whereas [Mrs. Shanks] sold
the marital residence while this action was pending
for $110,000 when the parties' investment in said
property was substantially higher.
E. The total duration of the marriage was only 16
Having carefully reviewed the record, we conclude that,
although Mrs. Shanks presented evidence that may have permitted
contrary findings, the trial court's findings are supported by
competent evidence and they are, in turn, sufficient to support the
trial court's conclusion that an unequal distribution in Mr.
Britt's favor was equitable. Accordingly, we discern no abuse ofdiscretion in the trial court's distribution of property in the
instant case. The corresponding assignments of error are
Judges HUNTER and CALABRIA concur.
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