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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.
SONJA HAMRIC JOYCE (now HAMRIC), Plaintiff, v. RICHARD E. JOYCE,
Filed: 19 December 2006
1. Divorce--equitable distribution--classification--marital property--mobile home park
The trial court did not abuse its discretion in an equitable distribution case by classifying
the portion of the mobile home park deeded to defendant husband as marital property, because:
(1) although the property was transferred to defendant by deed from his father, raising a
rebuttable presumption that the transfer was a gift to defendant only, plaintiff proved defendant's
father lacked donative intent by showing an extensive list of renovations, property maintenance,
and bookkeeping performed by the parties for defendant's father, and by introducing into
evidence the transfer document, a general warranty deed dated 20 September 1993; (2) the
statement of payment and receipt of payment was prima facie evidence of consideration; and (3)
although defendant tried to rebut the prima facie evidence by questioning his father to show the
transfer was intended as an early inheritance, the trial judge as the sole arbiter of witness
credibility was within his rights to be suspicious of the father's testimony and not to give it the
weight desired by defendant.
2. Appeal and Error--preservation of issues--failure to make offer of proof
Although defendant contends the trial court erred in an equitable distribution case by
sustaining plaintiff wife's objection to further evidence by defendant's father as to his donative
intent, this assignment of error is dismissed because: (1) defendant made no specific offer of
proof as to the excluded testimony's significance; and (2) such significance is not obvious from
3. Divorce--equitable distribution--payments--improvements to home
The trial court did not err in an equitable distribution case by finding defendant husband
received payment from plaintiff's parents for the improvements made by him to their home
during the marriage, because: (1) defendant in his own brief stated he received a total of $300 for
a complete bathroom remodel; and (2) although defendant may have been poorly compensated,
by his own admission he was paid by plaintiff's parents for improvements to their home.
4. Appeal and Error--appealability--mootness
Although defendant husband contends the trial court erred in an equitable distribution
case by including a mobile home park in its equal division of the marital estate, this assignment
of error is moot because the Court of Appeals already determined that the trial court
appropriately included the portion of the mobile home park deeded to defendant in the marital
5. Appeal and Error--appealability--cross-assignments--cross appeal
Although plaintiff inserted in the record three cross-assignments of error in an equitable
distribution case, these cross-assignments of error are not properly before the Court of Appeals,
because: (1) plaintiff's cross-assignments of error do not constitute an alternative basis for
supporting the judgment, but instead attempt to show how the trial court erred in its findings of
fact and conclusions of law; (2) the correct method for plaintiff to have raised these questions onappeal was to have raised the issues on cross appeal; and (3) plaintiff cannot raise such cross-
assignments for the first time in her brief to the Court of Appeals.
Appeal by defendant from judgment entered 15 June 2005 by
Judge Karen A. Alexander in Carteret County Superior Court. Heard
in the Court of Appeals 18 September 2006.
Stephen M. Valentine, attorney for plaintiff-appellee.
Debra J. Radtke, attorney for defendant-appellant.
Sonja Hamric Joyce (plaintiff) and Richard E. Joyce
(defendant) were married on 3 May 1985. They lived together as
husband and wife until 18 May 1997, when they separated. Plaintiff
filed a complaint on 4 June 1998 seeking an absolute divorce and
equitable distribution of the marital property. Defendant filed an
answer on 2 July 1998 also seeking equitable distribution. An
order of equitable distribution was entered 14 June 2005. From
that order defendant appeals.
On 20 September 1993, defendant's father transferred ownership
in one half of a mobile home park by deed. Subsequent to this
transfer, the parties operated the entire mobile home park,
consisting of nine mobile home lots and four apartments, and paid
to defendant's father eighty-five percent of the monthly profits.
Both parties were actively involved in the operation of the mobile
home park; plaintiff maintained the books, leased lots, accepted
rental payments, maintained the grounds, painted the units, andperformed minor maintenance in the park. Defendant undertook the
more physical maintenance tasks, including yardwork and repairs.
During the marriage and prior to the transfer of the mobile
home park, defendant, who was working as a contractor, renovated
his father's home. Defendant made a number of improvements,
including: adding a new roof; extending the foundation of the
house; enlarging a bedroom; adding a new bathroom and mudroom;
painting and tile installation; replacing the sheetrock in the
living room; and installing a new floor. Defendant completed this
work over a nine month period, during which he was working on his
father's house on a full-time basis, and for which he was paid a
total of $2,000.00. In addition to remodeling his father's home,
defendant worked on his father's farm throughout the marriage, for
which he was paid $200.00 per week. This work included pouring
concrete, constructing buildings, setting up equipment, and
maintaining the yard. During the marriage, defendant also
renovated portions of plaintiff's parents' house, for which he was
paid approximately $300.00.
Defendant makes four assignments of error, none of which pass
muster: (I) the trial court erred by classifying the portion of
the mobile home park deeded to defendant as marital property; (II)
the trial court erred in sustaining plaintiff's objection to
further evidence by defendant's father as to his donative intent;
(III) the trial court erred in finding defendant received payment
from plaintiff's parents for the improvements made by him to their
home during the marriage; and (IV) the trial court erred inincluding the mobile home park in its equal division of the marital
Equitable distribution is vested in the discretion of the
trial court and will not be disturbed absent a clear abuse of that
discretion. Wiencek-Adams v. Adams, 331 N.C. 688, 691, 417
S.E.2d 449, 451 (1992) (citation omitted). Abuse of discretion
will only be established if the judgment was unsupported by reason
and could not have been a result of competent inquiry, or if the
trial judge failed to comply with the statute. Id. In the case
before us, the trial judge's order of equitable distribution is
supported by both law and reason.
Marital property is defined to include 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. . . . N.C. Gen. Stat. § 50-20(b)(1) (2003).
'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. N.C.
Gen. Stat. § 50-20(b)(2) (2003).
A party who claims a certain classification of property has
the burden of showing, by the preponderance of the evidence, that
the property is within the claimed classification. Burnett v.
Burnett, 122 N.C. App. 712, 714, 471 S.E.2d 649, 651 (1996)
(citation omitted). If the property was acquired during themarriage by a spouse from his parent, though, then a rebuttable
presumption arises that the transfer is a gift to that spouse
[only]. Id. (citation omitted). The burden then shifts to the
spouse resisting the separate property classification to show [that
the parent lacked] donative intent. Id. A transfer document that
indicates receipt of consideration is prima facie evidence that
consideration was received for the property, although such evidence
does not compel that finding if contradictory evidence exists. Id.
at 715, 471 S.E.2d at 651. Defendant correctly notes that this
court has held that [t]he evidence most relevant in determining
donative intent [or the lack of thereof] is the donor's own
testimony. Id. (quoting Brett R. Turner, Equitable Distribution
of Property § 5.16 at 195 (2d ed. 1994)). However, determining the
credibility of the donor's testimony is within the discretion of
the trial judge. See Grasty v. Grasty, 125 N.C. App. 736, 739, 482
S.E.2d 752, 754 (1997), disc. review denied, 346 N.C. 278, 487
S.E.2d 545 (1997). Indeed, [t]he trial judge [in an equitable
distribution action] 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).
 In the instant case, the property was transferred to
defendant by deed from his father, raising the rebuttable
presumption that the transfer was a gift to defendant only, and
therefore should be classified as separate property. Plaintiff
then had the burden of proving that defendant's father lacked
donative intent. In addition to presenting an extensive list ofrenovations, property maintenance and bookkeeping performed by the
parties for defendant's father, plaintiff introduced into evidence
the transfer document, a general warranty deed dated 20 September
1993. This deed states in relevant part that defendant's father,
for a valuable consideration paid by the Grantee, the receipt of
which is hereby acknowledged . . . does grant, bargain, sell and
convey the mobile home park to the defendant. This statement of
payment and receipt of payment is prima facie evidence of
Defendant presented evidence to contradict this prima facie
evidence, both by questioning defendant's father and by attempting
to introduce a letter written by defendant's father in 2002, nine
years after the transfer, corroborating his testimony that the
transfer was intended as an early inheritance. The trial judge
was unswayed, stating in his findings of fact:
The father testified at trial that he intended
that this transfer be part of Richard's
inheritance. The Court found that this
intent was documented post-transfer and
obviously not drafted by an attorney. This
Court was suspicious of the post-transfer
document used to support the inheritance
As the sole arbiter of witness's credibility, the trial judge was
within his rights to be suspicious of the father's testimony and
not to give it the weight desired by defendant.
In light of the considerable amount of work performed by both
parties for defendant's father during the course of the marriage,
and specifically in connection with the operation of the mobile
home park, and without credible documentation of the father'sdonative intent to contradict plaintiff's evidence of compensation,
we must agree with the trial court that the transfer of the
property was supported by adequate consideration.
 Defendant, in his second assignment of error, contends
that the trial court erred in sustaining plaintiff's objection to
further questioning of defendant's father as to his donative
intent. At trial, the following exchange occurred:
Defense counsel: Okay. And then, after the
deed was - What was the purpose besides
inheritance? Was there some sort of well
dispute or well problem?
Defendant: The water quality people came upon
us and said, You're going to have to be under
Plaintiff's counsel: Your Honor, I'll object
to this line of questioning.
The Court: Sustained.
Defense counsel: Alright, don't go into that
then. Now, how man _ If you know, how many
bank accounts existed for the mobile home
After the trial court sustained plaintiff's objection,
defendant did not make an offer of proof concerning the
significance of the excluded testimony. Instead, he began a new
line of questioning. [I]n order for a party to preserve for
appellate review the exclusion of evidence, the significance of the
excluded evidence must be made to appear in the record and a
specific offer of proof is required unless the significance of the
evidence is obvious from the record. State v. Simpson, 314 N.C.
359, 370, 334 S.E.2d 53, 60 (1985). Before there can be adetermination of whether the exclusion of evidence was prejudicial,
the essential content or substance of the witness's testimony is
required. . . . Currence v. Hardin, 296 N.C. 95, 100, 249 S.E.2d
387, 390 (1978).
Defendant made no specific offer of proof as to the excluded
testimony's significance, and such significance is not obvious from
the record. Thus, defendant has failed to preserve this issue for
appellate review, and we dismiss this assignment of error.
 Defendant argues that the trial court erred in finding
that he received payment from plaintiff's parents for improvements
made by him to their home during the marriage on the ground that no
competent evidence supports this finding. However, defendant, in
his own brief, states that he received a total of $300.00 for a
complete bathroom remodel. Although he may have been poorly
compensated, by his own admission defendant was paid by plaintiff's
parents for improvements to their home. Accordingly, the trial
court did not err in its finding.
 In his fourth assignment of error, defendant contends that
the inclusion of the mobile home park in the trial court's division
of the marital estate resulted in an unequal division of assets in
plaintiff's favor. We have already determined that the trial court
appropriately included the portion of the mobile home park deeded
to defendant in the marital estate, thus rendering defendant's last
assignment of error moot.
 Finally, the plaintiff inserted in the record three
cross-assignments of error, in which she contends that the trial
court erred: (1) in concluding that the parties' leasehold interest
in the hog farm had no net value on the date of separation; (2) in
concluding that BB&T account number 5116314179 was a marital asset;
and (3) in denying plaintiff's motion to join defendant's parents
as necessary parties.
Rule 10(d) of the North Carolina Rules of Appellate Procedure
provides a means by which a party may except to and cross-assign as
error a portion of an order from which his opposing party appeals.
Texaco, Inc. v. Creel
, 310 N.C. 695, 705, 314 S.E.2d 506, 511
(1984). The rule states:
Without taking an appeal an appellee may cross
assign as error any action or omission of the
trial court which was properly preserved for
appellate review and which deprived the
appellee of an alternative basis
in law for
supporting the judgment
, order, or other
determination from which appeal has been
N.C.R. App. P. 10(d) (2006) (emphasis added).
Plaintiff's cross-assignments of error do not constitute an
alternative basis for supporting the judgment. Instead, they
attempt to show how the trial court erred in its findings of fact
and conclusions of law. . . . The correct method for plaintiff to
have raised th[ese] question[s] on appeal was to have raised the
issue[s] on cross appeal
. CDC Pineville, LLC v. UDRT of N.C.,
, 174 N.C. App. 644, 657, 622 S.E.2d 512, 521 (2005) (emphasisadded) (citations omitted), disc. review denied
, 360 N.C. 478, 630
S.E.2d 925 (2006).
In Cherry, Bekaert & Holland v. Worsham
, 81 N.C. App. 116, 344
S.E.2d 97 (1986), this Court noted that:
[i]n order to bring the questions presented
before this Court, appellee was required to
file a cross-appeal as an appellant, complying
with all of the Rules of Appellate Procedure,
including deadlines, applicable to appellants.
Therefore, the only questions before us are
those raised by appellant.
, 81 N.C. App. at 118, 344 S.E.2d at 99. Similarly,
plaintiff cannot raise such cross-assignments for the first time in
her brief to this Court. Rather, plaintiff should have filed a
cross-appeal and complied with all of the appropriate appellate
rules. Therefore, plaintiff's cross-assignments of error are not
properly before this Court, and accordingly, this Court could not
and does not review plaintiff's cross-assignments of error.
Chief Judge MARTIN concurs.
Judge JACKSON concurs in a separate opinion.
JACKSON, Judge, concurring.
I concur with the majority's conclusion that the transfer of
the mobile home park was supported by adequate consideration and
that the mobile home park was properly classified as marital
property. For the reasons stated below, however, I respectfully
disagree with the majority's analysis of defendant's second
assignment of error, in which defendant argued that the trial courterred in excluding portions of defendant's father's testimony,
although I agree that the assignment of error should be overruled.
On direct examination, defense counsel attempted to elicit
information from defendant's father regarding a well dispute or
well problem as a possible motive for the transfer of the
property. When defendant's father began to explain what [t]he
water quality people . . . said, however, plaintiff's counsel
objected to the line of questioning, and the trial court sustained
the objection. Viewing this incident in isolation, the majority is
correct that without an offer of proof, this Court is unable to
determine the essential content or substance of the witness's
testimony, Currence v. Hardin, 296 N.C. 95, 100, 249 S.E.2d 387,
390 (1978), and thus, we have no way to determine whether or not
the trial court erred in excluding defendant's testimony.
As defendant correctly points out, however, defendant's
father's later testimony on cross-examination revealed his
rationale for dividing the property based on the water systems
supplying the property.
PLAINTIFF'S COUNSEL: So, it was not actually
your inheritance? He didn't inherit this
DEFENDANT'S FATHER: What I intended is that
that particular piece of property we cut apart
and divided [sic] one water system away from
another water system and I gave him the water
system that is next to one of the apartments
so that that could be one piece of property
when and if it were divided if we wanted to
divide it that way. That's what I was saying.
I planned for him to have that piece of
property that was adjacent to one of the
Based on this later testimony, I believe that the significance of
the [excluded testimony] is obvious from the record. State v.
Simpson, 314 N.C. 359, 370, 334 S.E.2d 53, 60 (1985). Accordingly,
I respectfully disagree with the majority's conclusion that the
issue has not been preserved for appellate review.
Although I believe the issue has been preserved for our
review, I do not believe defendant has demonstrated prejudicial
error from the exclusion of the testimony. Defendant contends that
the trial judge prevented the donor, Robert P. Joyce, Jr. from
fully explaining his reason for deeding the property to his son
when he did. However, the trial court was justified in sustaining
the objection to defendant's father testifying to what [t]he water
quality people . . . said as that constituted inadmissible hearsay
not subject to any of the exceptions or exemptions provided in the
Rules of Evidence. Furthermore, through the passage quoted above,
defendant's father fully explained the timing and justification for
his deeding the property to defendant. Defendant's father offered
his explanation, defense counsel did not follow up with any
additional questions, and the essential content of the excluded
testimony was allowed into evidence. Defendant is correct in
arguing that [t]he evidence most relevant in determining donative
intent [or the lack of donative intent] is the donor's own
testimony, Burnett v. Burnett, 122 N.C. App. 712, 715, 471 S.E.2d
649, 651 (1996) (second alteration in original) (citation and
internal quotation marks omitted), but in the case sub judice, the
donor was permitted to testify as to his intent in the transfer. Accordingly, defendant has not shown prejudicial error, and
his assignment of error, although properly preserved for appellate
review, should be overruled.
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