An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-885


Filed: 2 August 2005


v .                         New Hanover County
                            No. 01 CVS 4500

    Appeal by defendant from orders entered 12 January 2004 and 13 January 2004 by Judge J. Bruce Morton in New Hanover County District Court. Heard in the Court of Appeals 2 March 2005.

    Pennington & Smith, by Ralph S. Pennington, for plaintiff- appellee / cross-appellant.

    Lea, Rhine & Rosbrough, by James W. Lea, III, for plaintiff- appellee / cross-appellant.

    Reid, Lewis, Deese, Nance & Person, LLP, by Renny W. Deese for defendant-appellant.

    JACKSON, Judge.

    Linda Wilson (“plaintiff”) and Denis Ventriglia (“defendant”) were married 4 September 1988. Two children were born of the marriage. The parties separated on 27 October 2000 and plaintiff filed for absolute divorce on 29 October 2001. Defendant counterclaimed for equitable distribution and alimony. An absolute divorce was granted on 7 December 2001.
    The evidence presented at trial showed that plaintiff's family owned a grocery store business, Boney Wilson & Sons, Inc. (“Wilson's”). The principals of Wilson's included plaintiff'sfather, Allan Wilson, and his brother, Ed Wilson. Each of the brothers' families owned fifty percent (50%) of the issued and outstanding stock of Wilson's. Plaintiff had received stock in Wilson's through a gift from Allan Wilson prior to the marriage. At the time of the marriage plaintiff owned six point four percent (6.4%) of Wilson's issued and outstanding stock. Ed and Allan Wilson also owned collectively certain real estate in their individual names as well as interests in a partnership known as Wilson Brothers (the “partnership”).
    Approximately one year after the parties' marriage, Allan Wilson agreed to buy out Ed Wilson's interest in Wilson's, the collectively owned real property and the partnership. Allan Wilson intended to gift these interests to his children, but due to tax considerations, the transaction was structured as a purchase by plaintiff and her siblings from Ed Wilson. The purchase price of $3,077,901 was secured by the existing interests of plaintiff and her siblings in Wilson's in addition to promissory notes signed by each sibling. To effectuate his intent to give these interests to his children, Allan Wilson, who now maintained sole control over Wilson's operation, directed the payments on the notes to be made by Wilson's. Neither plaintiff, defendant, nor the parties' marital estate made any payments on the notes. At the completion of this transaction, plaintiff owned eighteen point one percent (18.1%) of Wilson's. She subsequently gifted approximately six percent (6%) of her total holdings to her and defendant's twochildren leaving her with about twelve point five percent (12.5%) ownership of the business held solely in her own name.
    In June 1994, Hannaford Bros. Co. purchased all of the issued and outstanding stock of Wilson's, in addition to certain of the partnership and real properties held by the Wilson's (“Hannaford Sale”). Plaintiff's portion of the net proceeds from the sale, approximately $17,000,000, was placed in accounts and properties held solely in her name. These accounts and properties were stipulated by both parties to exist on the date of the separation and were estimated to be worth approximately $20,000,000 at that time.
    Prior to their marriage the parties, then both licensed attorneys, had jointly drafted and entered into a prenuptial agreement (the “prenuptial agreement” or the “agreement”) which plaintiff proffered as a defense to defendant's counterclaim. Both parties stipulated that the prenuptial agreement was valid and binding. At the close of defendant's evidence plaintiff made a motion to dismiss all or part of defendant's claims for equitable distribution, post-separation support, alimony, and attorney's fees pursuant to North Carolina General Statutes . 1A-1, Rule 41(b) and the court took the motion under advisement. At the close of her evidence plaintiff renewed her motion to dismiss. The court granted defendant's motion, filed prior to trial, for partial summary judgment as to equitable distribution, finding that the prenuptial agreement was unambiguous on its face and did notpreclude equitable distribution of property acquired during the marriage.
    Although the trial court found that the pre-nuptial agreement did not preclude equitable distribution, it also determined that there was no marital property to distribute. This conclusion was based primarily on the court's construction that the word “passed,” as used in the agreement, encompassed all property regardless of the manner in which the ownership was acquired. This construction precluded plaintiff's increased interest in the family business acquired after the marriage from being classified as marital property.
    Defendant was offered the opportunity to present additional evidence on the issue of whether he was entitled to alimony, but declined to do so. The trial court found that defendant was not substantially dependent on plaintiff for his maintenance and support, was not in need of maintenance and support from plaintiff, and was not a dependent spouse. Therefore, the court entered an order denying defendant's claim for post-separation support and attorney's fees.
    Defendant appeals from these orders. Plaintiff cross appeals the trial court's ruling that the prenuptial agreement did not preclude equitable distribution.
    As a preliminary matter we address plaintiff's contention that defendant failed to comply with Rule 10 of the North Carolina Rules of Appellate Procedure and that his appeal, therefore, should be dismissed. Specifically, plaintiff argues that defendant failed tocomply with Rule 10(c)(1) of the Rules of Appellate Procedure which requires that assignments of error “direct[] the attention of the appellate court to the particular error about which the question is made, with clear and specific record or transcript references.” N.C.R. App. P. 10(c)(1) (2005). Plaintiff contends that, because his references to the record encompass fifty pages which include most of the equitable distribution order, defendant's notice of appeal as to the equitable distribution order, and the first seven pages of the alimony order, defendant's assignments of error are defective.   (See footnote 1) 
    Although defendant's references to the record on appeal may have been made more broadly than is our preference, his broad page references nonetheless direct our attention to the particular errors being raised. The errors alleged by defendant, and the legal bases for them, are clearly laid out in the assignments of error and are of such a nature that they affect the majority of the trial court's findings of fact and conclusions of law. In other words, defendant's assignments of error are so intertwined with the majority of the trial court's findings of fact and conclusions of law that making more specific record references would have been impractical as the alleged errors carry on throughout the court's orders. As such, we conclude that defendant's assignments of error do not violate Rule 10 of the Rules of Appellate Procedure and therefore we will reach the merits of defendant's appeal. Similarly, despite her reference to non-existent record pages, the questions raised by plaintiff's assignments of error in her cross- appeal also clearly may be understood by this Court. Consequently, the cross appeal is not found in violation of Rule 10 and will be addressed infra.
    We deal first with the construction of the prenuptial agreement as we find it dispositive of many of the issues raised on appeal. The principles of contract construction apply to prenuptial agreements in the same manner as to other contracts. Turner v. Turner, 242 N.C. 533, 539, 89 S.E.2d 245, 249 (1955); Howell v. Landry, 96 N.C. App. 516, 525, 386 S.E.2d 610, 615 (1989). An appeal of an order based on the interpretation of a contract presents a question of law and therefore the proper standard of review is de novo. Sears Roebuck & Co. v. Avery, 163 N.C. App. 207, 211, 593 S.E.2d 424, 428 (2004).
    “Where the terms of a contractual agreement are clear and unambiguous, the courts cannot rewrite the plain meaning of the contract.” Montgomery v. Montgomery, 110 N.C. App. 234, 238-39, 429 S.E.2d 438, 441 (1993). Here, the fourth paragraph of the pre- nuptial agreement, is a “catch-all” provision which addresses the distribution of any property that may fall outside of the provisions of the preceding paragraphs. This paragraph states:
        Any property, other than property mentioned hereinabove, acquired during marriage shall be divided equally between Denis and Linda.

(emphasis added). The trial court found that this language unambiguously contemplated equitable distribution. However, thisparagraph specifically provides for the equal, not equitable, distribution of any property not otherwise covered by the agreement.
    The presumption in North Carolina is that an equal division of property is equitable However, if the court finds that an equal division is not equitable, then the court can divide the property unequally to achieve equity. N.C. Gen Stat. . 50-20(c)(2003). This scheme clearly is different from the terms in the prenuptial agreement that property not otherwise distributed under the agreement would be distributed equally. Spouses may agree to an alternate manner of distribution of property which they deem equitable by written agreement and such agreement shall be binding on the parties. N.C. Gen. Stat. . 50-20(d)(2003). Here, it is clear that the parties intended that the distribution of any property not specifically addressed under the terms of the agreement was to be distributed equally.
    The terms of the agreement also make clear that the parties intended to distribute all of the property acquired during their marriage as set forth in the agreement. Agreements fully disposing of the parties' property rights act as a bar to equitable distribution. See Rabon v. Rabon, 102 N.C. App. 452, 402 S.E.2d 461 (1991). The only possible situation in which the parties' property could be subject to equitable distribution in light of the agreement would be if the agreement was found to be unenforceable, in which case the parties agreed, in the unnumbered paragraphcontained at the end of the agreement, to be bound by the laws of North Carolina. Specifically, the parties stated:
        Should this contract for any reasons [sic] be held to be unenforceable, the parties do hereby consent to the Family Courts of North Carolina and do hereby agree to be bound by the laws dealing with the dissolution of marriages and the distribution of property as set forth in the North Carolina Sessions Laws.

Although inelegant in its drafting, the language used by the parties is sufficient to communicate their intent to dispose of all of their property under the terms of the agreement unless it was held to be unenforceable. This paragraph clearly does not apply as it was stipulated by the parties that the prenuptial agreement was valid and binding on them both.
    Accordingly, we hold that the parties waived their rights to equitable distribution in the agreement, the agreement fully disposes of the parties' property, and that the agreement acts as a bar to equitable distribution. This holding also disposes of plaintiff's cross appeal of the trial court's ruling that the prenuptial agreement did not preclude equitable distribution in plaintiff's favor.
    We next address defendant's assignment of error regarding the trial court's interpretation of the word “pass” in the prenuptial agreement. In construing a contract a court must give ordinary words their ordinary meanings. Biggers v. Evangelist, 71 N.C. App. 35, 42, 321 S.E.2d 524, 529 (1984). “'If no definition is given, non-technical words are to be given their meaning in ordinary speech, unless the context clearly indicates another meaning wasintended.'” Gaston County Dyeing Machine Co. v. Northfield Ins. Co., 351 N.C. 293, 299, 524 S.E.2d 558, 563 (2000) (quoting Woods v. Nationwide Mutual Ins Co., 295 N.C. 500, 505-06, 246 S.E.2d 773, 777 (1978)). According to our Supreme Court, the “use of the plain, ordinary meaning of a term is the preferred construction.” C. D. Spangler Constr. Co. v. Industrial Crankshaft & Engineering Co., 326 N.C. 133, 151, 388 S.E.2d 557, 568 (1990) (citing Woods supra).
    When determining the ordinary meaning of a word, it is appropriate to look to dictionary definitions. Guyther v. Nationwide Mut. Fire Ins. Co., 109 N.C. App. 506, 512, 428 S.E.2d 238, 241 (1993). Black's Law Dictionary defines the term “pass,” inter alia, as “[t]o transfer or be transferred.” Blacks Law Dictionary 1155 (8th ed. 2004). Webster's Dictionary defines “pass” as: “[t]o go from the control, ownership, or possession of one person or group to that of another.” Webster's New Collegiate Dictionary 860 (9th ed. 1991). Neither of these definitions limits the term “pass” to gratuitous transfers and both allow for transfers of any kind - including transfers for consideration.
    Defendant argues that the principle of ejusdem generis limits the scope of the word “pass” in the third paragraph of the agreement. The principle ejusdem generis, is defined by Black's Law Dictionary as “[a] cannon of construction that when a general word or phrase follows a list of specifics, the general word or phrase will be interpreted to include only items of the same type as those listed.” Black's Law Dictionary 556 (8th ed. 2004). Thepertinent portion of the third paragraph of the agreement reads as follows:
        Any property passed, inherited, bequeathed, or given to either party during the course of their marriage shall remain the separate property of the receiving party. . . .

(Emphasis added.) In the instant case, the term “passed” in the third paragraph of the agreement precedes, rather than follows, the list of more specific types of transfers and therefore does not fall within the application of this principle. Also, the term “passed” is used in paragraph two of the agreement with no apparent restrictions as to its scope.   (See footnote 2)  Further, ejusdem generis has been used in North Carolina primarily in statutory construction. See Meyer v. Walls, 347 N.C. 97, 106, 489 S.E.2d 880, 885 (1997)(“ejusdem generis applies especially to the construction of legislative enactments.” quoting Turner v. Gastonia City Board of Education, 250 N.C. 456, 463, 109 S.E.2d 211, 216 (1959)); Knight v. Town of Knightdale, 164 N.C. App. 766, 769, 596 S.E.2d 881, 884 (2004)(ejusdem generis is a rule of statutory construction). We are unable to find any instances where it previously has been applied to the construction of a prenuptial agreement. Given the facts in the instant case , we decline to apply the doctrine ofejusdem generis to the construction of paragraph three of the party's prenuptial agreement.
    Consequently, the trial court's finding of fact that the interests in plaintiff's family's business, which she acquired during the marriage, fell under the provisions of the third paragraph of the agreement and the resulting conclusion that there was no marital property at the date of separation are affirmed.
    Defendant's remaining assignment of error is that the trial court erred in finding that he was not a dependent spouse and denying him alimony. However, defendant fails to assign error to any of the specific findings of fact upon which the trial court based this finding. If error is not assigned to specific findings of fact, those findings are presumed to be supported by competent evidence and are, therefore, binding on appeal and our review is limited to whether the trial court's findings of fact support its conclusions of law. Anderson Chevrolet/Olds, Inc. v. Higgins, 57 N.C. App. 650, 653, 292 S.E.2d 159, 161 (1982).
    Alimony only may be awarded to a dependent spouse. Talent v. Talent, 76 N.C. App. 545, 547, 334 S.E.2d 256, 258 (1985). A dependent spouse is one “who is actually substantially dependent upon the other spouse for his or her maintenance and support or is substantially in need of maintenance and support from the other spouse.” N.C. Gen. Stat. . 50-16.1A(2)(2003); see Williams v. Williams, 299 N.C. 174, 179, 261 S.E.2d 849, 854 (1980). In other words, the court must determine whether one spouse “would be unable to maintain his or her accustomed standard of living, establishedprior to separation, without financial contribution from the other.” Talent, 76 N.C. App. at 548, 334 S.E.2d at 258-59.
    The trial court's findings of fact pertinent to this issue were: (20) defendant's average monthly income from 1999 to 2003 (after annualizing income for 2003) was $18,145; (26) defendant's reasonable monthly expenses were $7,288; (26) defendant's average monthly income since 1999 was well in excess of his reasonable monthly expenses that would be representative of the parties' lifestyle during the marriage; and (30) the defendant was, and had been throughout the marriage, capable of supporting himself. These findings of fact clearly support the trial court's conclusion that defendant is not a dependent spouse and therefore not entitled to alimony. Consequently, this assignment of error is overruled.
    Reversed in part, affirmed in part.
    Judges HUNTER and CALABRIA concur.
    Report per Rule 30(e).

Footnote: 1
     We note with some irony that plaintiff's own assignments of error refer this Court to pages 272-274 of a record which contains only 161 pages.
Footnote: 2
     Paragraph 2 provides:
        Any property passed to either party or held by either party in his or her own name before marriage shall remain the separate property of the receiving party, notwithstanding the fact that such property may subsequent to marriage be placed in both parties' names.

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