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