An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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

NO. COA05-510

NORTH CAROLINA COURT OF APPEALS

Filed: 21 February 2006

VIRGINIA FALLIN MILLER,
    Plaintiff

v .                                     Caldwell County
                                        No. 03 CvD 234
JAMES HUBERT MILLER,
    Defendant

    Appeal by plaintiff from an order entered 5 October 2004, and cross-appeal by defendant from orders entered 5 October 2004 and 1 November 2004 by Judge Robert M. Brady in Caldwell County District Court. Heard in the Court of Appeals 7 December 2005.

    W. C. Palmer, Attorney at Law, PLLC, by W. C. Palmer, for plaintiff-appellant.

    Lucy R. McCarl, PC, by Lucy R. McCarl, for defendant- appellant.

    HUNTER, Judge.

    Virginia Fallin Miller (“plaintiff”) and James Hubert Miller (“defendant”) appeal from an order of equitable distribution entered 5 October 2004. Defendant also appeals from an order denying his motion to revise the order of equitable distribution entered 1 November 2004. For the reasons stated herein, we affirm the order of equitable distribution.
    Plaintiff and defendant were married 30 September 1995. At the time of the marriage, plaintiff was sixty-two years old and defendant was sixty-six years old. The parties separated on 13 February 2003. Defendant sought equitable distribution on 26February 2003. An order of divorce was entered 16 April 2004 and an order for equitable distribution was entered 5 October 2004.
    The trial court determined that the net value of the marital estate was $140,547.03, as of the date of separation. The trial court found that an unequal distribution would be equitable, and ordered the marital estate divided with plaintiff receiving twenty- five percent and defendant receiving seventy-five percent of the total value. Plaintiff appeals from this order.

I.

    Plaintiff first contends the trial court erred in failing to find that the marital home was acquired as a tenancy by the entirety. We disagree.
    “'[W]here a spouse furnishing consideration from separate property causes property to be conveyed to the other spouse in the form of tenancy by the entireties, a presumption of a gift of separate property to the marital estate arises, which is rebuttable by clear, cogent, and convincing evidence.'” Thompson v. Thompson, 93 N.C. App. 229, 231, 377 S.E.2d 767, 768 (1989) (citation omitted).
    Here, the trial court made the following finding of fact:
        12.    During the parties' marriage, the Defendant subdivided the land that he inherited and he built a house on one lot, which became the marital home at 4397 Horseshoe Bend Road, Hudson, North Carolina. The Defendant subsequently placed the deed to the marital home in the name of himself and the Plaintiff byentireties, and it became marital property. . . .   (See footnote 1) 

(Emphasis added.)
    As the record clearly indicates that the trial court found the parties' home was titled as a tenancy by the entireties and that defendant's separate property was converted to marital property, this assignment of error is without merit.
II.

    Plaintiff next contends in related assignments of error that the trial court erred in concluding that an equal division of property was not equitable, and in awarding seventy-five percent of the marital estate to defendant. We disagree.
    N.C. Gen. Stat. § 50-20(c) governs division of marital and divisible property.
        There shall be an equal division by using net value of marital property and net value of 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.

N.C. Gen. Stat. § 50-20(c) (2005). The statute specifies twelve factors for consideration in equitable distribution, including the “income, property, and liabilities of each party at the time the division of property is to become effective[,]” and the “durationof the marriage and the age and physical and mental health of both parties.” N.C. Gen. Stat. § 50-20(c)(1) and (3).
    “When evidence tending to show that an equal division of marital property would not be equitable is admitted . . . the trial court must exercise its discretion in assigning the weight each factor should receive in any given case.” White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985). “It is well established that where matters are left to the discretion of the trial court, appellate review is limited to a determination of whether there was a clear abuse of discretion.” Id. “A ruling committed to a trial court's discretion is to be accorded great deference and will be upset only upon a showing that it was so arbitrary that it could not have been the result of a reasoned decision.” Id.
    Here, the trial court made specific findings as to considerations under N.C. Gen. Stat. § 50-20(c). Pursuant to section 50-20(c)(3), the trial court made findings as to the duration of the marriage, seven and a half years, the age of the parties, seventy-one and seventy-five respectively, and the parties' health, specifically the past health problems of defendant. The trial court made further findings as to the income, property, and liabilities of each party pursuant to section 50- 20(1) and (9). The trial court made findings as to the liquidity of the assets, specifically that defendant had no significant source of income other than social security benefits, but had significant separate real property assets. The trial court further found that a distributive award to the plaintiff would require asale or mortgage of property by defendant. The trial court also found that plaintiff had income from social security benefits and military benefits derived from a prior deceased spouse. Finally, the trial court found under section 50-20(11)(a) that since the date of separation, defendant had paid most of the rental payments for plaintiff's trailer lot and had paid property taxes on the trailer and marital residence.
    Although an equal division of property is mandatory when no evidence is admitted tending to show that an equal division would be inequitable, when such evidence is admitted as to the factors for consideration by the trial court under N.C. Gen. Stat. § 20- 50(c), as in this case, “the trial court must exercise its discretion in assigning the weight each factor should receive in any given case.” White, 312 N.C. at 777, 324 S.E.2d at 833. “It must then make an equitable division of the marital property by balancing the evidence presented by the parties in light of the legislative policy which favors equal division.” Id. We are unable to say that the trial court abused its discretion in concluding that an unequal distribution was equitable in this case, as the trial court made specific findings as to factors for consideration under the statute in support of a conclusion that was not “so arbitrary that it could not have been the result of a reasoned decision.” Id. Plaintiff's assignments of error are overruled.
III.
    We finally address defendant's cross-appeal from a denial of a motion to revise the judgment pursuant to Rule 59 of the North Carolina Rules of Civil Procedure.
    A review of the record reveals that defendant filed a notice of appeal to this Court from the order denying defendant's motion for revision. However a search of the record reveals that defendant has failed to assign any error as required by our Rules of Appellate Procedure, and we therefore dismiss this cross-appeal. N.C.R. App. P. 10(a) and (c)(1); see Shook v. County of Buncombe, 125 N.C. App. 284, 285, 480 S.E.2d 706, 706 (1997) (citation omitted) (holding that the failure to assign error is fatal to the appeal as “'[a] party may not present for the first time in an appellate brief a question raising issues of law not set out in the assignments of error contained in the record on appeal'”).
    As the trial court did not err in classifying the parties' home as marital property or abuse its discretion in its unequal division of marital property in the award of equitable distribution, we affirm the order.
    Affirmed.
    Judges McCULLOUGH and GEER concur.
    Report per Rule 30(e).


Footnote: 1
     Although we note the trial court made findings as to the extent of defendant's contributions of separate property to the construction of the marital home, the trial court did not cite such findings as a basis for the unequal division of property, but rather used other factors as a basis for its determination of equitable distribution, as discussed in Section II.

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