WANDA C. HILL,
Plaintiff,
v
.
Robeson County
No. 02 CVD 04598
WILLARD HILL, DONALD T.
ARNETTE AND ALICE FAYE
ARNETTE,
Defendants.
Huggins, Pounds & Davis, L.L.P., by Bruce W. Huggins, for
defendants-appellants.
Locklear, Jacobs, Hunt & Brooks, by Arnold Locklear, for
plaintiff-appellee.
ELMORE, Judge.
Wanda Hill (plaintiff) and Willard Hill (defendant) met in
December of 1998 and lived together beginning in April 1999.
Plaintiff and defendant were married on 22 April 2001. During the
time while they were living together prior to marriage, plaintiff
and defendant decided to build a home. After the marriage of the
parties, defendant purchased from his brother, Garron Hill, a one-
half undivided remainder interest in a 66-acre parcel of land.
Defendant already owned the other one-half undivided remainder
interest, which was subject to the life estate of defendant'smother, Catherine Bass Hill. The 66-acre tract of land, referred
to in the record as the Highway 904 tract, had been devised to
defendant and his brother in the Last Will of Luther Hill, subject
to the life estate of Catherine Bass Hill.
Plaintiff and defendant were separated on 2 July 2002. On 2
December 2002 plaintiff filed a complaint seeking divorce and
equitable distribution. Defendant filed an answer on 7 February
2003. The trial court entered an order of equitable distribution
dated 27 April 2005. The court then entered an amended order on 16
May 2005. Defendant filed notice of appeal to this Court from both
of these orders.
On appeal, defendant contends that the trial court erred in
determining (1) that the Highway 904 tract of land should be
classified as marital property; and (2) that plaintiff is entitled
to a one-fourth interest in the tract of land, subject to a life
estate, in the amount of $33,696.00.
Defendant argues that the transfer of his brother's interest
in the 904 tract of land was a partial gift to him. Therefore,
defendant asserts, the entire property is his separate property.
“Bargain sales, or those where some small consideration is received
in exchange for the transfer, if accompanied with donative intent,
are treated as partial gifts.” Burnett v. Burnett, 122 N.C. App.
712, 715, 471 S.E.2d 649, 652 (1996) (citing Brett R. Turner,
Equitable Distribution of Property § 5.16 at 195 (1995)). The
record establishes that the value, at the date of the parties'
separation, of the portion of land purchased by defendant from hisbrother was $68,750.00. But defendant paid his brother $20,000.00
for the portion of land. Thus, we now consider whether defendant's
brother expressed donative intent in his sale of the tract of land
to defendant at an artificially low price. The following testimony
by defendant sets forth the circumstances surrounding the transfer:
Q. . . . how did you hear that Garon was
running around trying to sell his property?
A. My half brother Tony told me that Garon was
gonna sell it and being I had half ownership
in it, he said you better buy it or somebody
else'll get it and then you'll have to sell
your part.
Q. So you went to see him?
A. Yes, Sir.
Q. And asked him if he was gonna sell.
A. Yes, Sir.
Q. And what did you do about how much?
A. I just asked him what he wanted for it. He
said--he had a tax paper and he showed it, and
he said I'll take this for it tomorrow.
That's the exact words he said. So that's
when I come and made a transfer.
Q. So, you got your deed drawn and you gave
him--he gave you a deed for his interest? And
then he also gave you a note for part of it,
didn't he, or you gave him a note?
A. I gave him a note, Sir.
Q. Tell the Court how you worked that out with
your brother and why.
A. Well, I knowed he was gonna throw it away,
because I give him ten thousand dollars
($10,000) in a check and when I started home
we deposited it in the bank for him. And in
less than a week he was back at the house
wanting the rest of it. He blew it. And Iwas wanting him to not throw it all away that
way.
Defendant argues the sole fact that he purchased the land interest
from his brother for one-third of its value converts the transfer
into a partial gift. We disagree. Evidence relevant to donative
intent includes the donor's own testimony, the testimony of the
donee, the documents surrounding the transaction, and whether a
gift tax return was filed or excise tax paid. Burnett, 122 N.C.
App. at 715, 471 S.E.2d at 651. Documents surrounding the
transaction that characterize the transfer as a gift are strong
evidence of donative intent. Id. Here, defendant has not
established evidence of donative intent. He does not refer to any
documents in which the transfer is characterized as a gift from his
brother to him. Neither is there evidence of a gift tax return or
excise tax paid. The testimony of defendant is not indicative of
any particular intent on the part of the transferor, his brother,
other than the desire to sell the property and obtain some money
quickly. We reject defendant's argument that the transfer of
property from his brother to him was in the nature of a partial
gift.
Defendant next argues that the 904 tract should be classified
as his separate property because it was purchased with his separate
funds. We note initially that the 904 tract was purchased during
the marriage. As such, a presumption arises that the property is
marital. See N.C. Gen. Stat. § 50-20(b)(1) (2005) (“It is presumed
that all property acquired after the date of marriage and before
the date of separation is marital property except property which isseparate property . . .”). The spouse challenging the
classification of marital property may overcome the presumption by
the greater weight of the evidence. See N.C. Gen. Stat. § 50-
20(b)(2) (2005).
Here, defendant contends that he bought the interest in the
904 tract of land for $20,000.00 from his separate funds.
Defendant introduced into evidence a check for $10,000.00 drawn
from his personal account at BB&T. But there is also evidence that
defendant used marital funds to purchase the property. In
particular, defendant testified that he did not know how much money
he drew out of the parties' joint lock box:
Q. You heard Ms. Hill say that you got--you
talked about buying the . . . land while both
of you were building the house; that's true,
isn't it?
A. Yes, Sir.
Q. Things were tight; were they not?
Financially?
A. No, Sir.
Q. Plenty of money?
A. No, Sir. I didn't have plenty of money,
but I mean I wasn't gonna--I was gonna stop
the house to buy the land.
Q. And you didn't stop the house, did you?
A. Yes, Sir. I stopped it--pretty close.
Q. And that was because of taking twenty
thousand, (20,000)--ten thousand dollars
($10,000) out of the box; didn't you?
A. Ah, well I had money.
Q. But you did take ten thousand out of the
box; didn't you Sir?
A. I don't know how much I took out of it at
one time, no, Sir.
Plaintiff testified that the parties had both made contributions to
the lock box, and that it was maintained for the purpose of
withdrawing cash to make payments for the construction of the
house. Plaintiff further testified that she was paid $888.00 bi-
monthly and would cash every other paycheck and then place that
cash in the box. Plaintiff stated that in addition to her
paychecks she also deposited a total of $3,000.00 in cash from her
bonus checks into the box. Plaintiff also testified that she
agreed with defendant to use the “house money” to purchase the land
interest from defendant's brother:
[Defendant] came home and told me that his
brother Garon Hill wanted to see his portion
of a sixty-six acre tract of land on Highway
904. . . . And since [defendant] already owned
an undivided interest in it, he wanted to buy
the other part. So I--we talked about it,
that if--it was twenty thousand dollars
($20,000) but [defendant] had worked it out to
where he was to pay ten thousand (10,000) when
the paperwork was done and another ten
thousand (10,000) three to six months later.
And we knew it would slow--it would take our
money, our house money, slow down the
construction on the home if we did it, but I
understood him wanting to buy it so I agreed
to it.
Defendant's testimony on direct examination regarding where he
got the money to buy the interest from his brother was unspecific
beyond stating that ten thousand dollars of the twenty thousand
came from his account at BB&T. He testified that his mother had
some CD's and that she cashed them in and gave them to him.
Defendant stated that his mother did this because she was livingwith him and under his care. The testimony of plaintiff conflicted
with defendant's testimony on the source of funds in the BB&T
account. Plaintiff testified as follows:
Q. Is it a fact that [defendant] gave Garon a
check from his BB&T account dated 11/21/01, in
the amount of ten thousand dollars ($10,000)?
A. Yes, Sir that's correct.
. . . .
Q. Were you aware that [defendant] had that
BB&T account?
A. Yes, Sir.
Q. Did you ever put any money into that BB&T
account?
A. I made deposits into that account for the
house.
Q. From his money?
A. From his money, my money, whichever. If we
needed money in the BB&T account because we
had to write checks for construction on the
house, then we would, ah, we moved money back
and forth. . . .
Q. Now is it your position that [defendant]
did not use his separate funds to buy this
piece of property from Garon?
A. He used funds that we both had, in the box.
The trial court inquired further into the amount taken from the
joint funds in the lock box for the purpose of clarification:
THE COURT: Well, his question is, do you know
where the twenty thousand dollars ($20,000)
came from, what accounts or the cash box.
What was the source of the twenty thousand
dollar ($20,000) basically?
A. The original source of it?
THE COURT: Yes, Ma'am.
A. I know ten thousand (10,000) was taken from
the cash box.
THE COURT: Okay.
A. I cannot be for sure whether the other ten
thousand came out of the cash box or not.
The credibility of the witnesses and the weight to be given
their testimony was a determination for the trial court. See
Grasty v. Grasty, 125 N.C. App. 736, 739, 482 S.E.2d 752, 754,
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). The trial court here could have found the
testimony of plaintiff regarding the use of money from the lock box
to purchase the tract of land more credible than the testimony of
defendant that he used money from CD's that his mother cashed in.
The record contains competent evidence to support the trial court's
finding that a one-half remainder interest in the 66-acre parcel
was marital property, and we therefore hold the trial court did not
err in failing to classify the interest as separate property. See
Embler v. Embler, 159 N.C. App. 186, 191, 582 S.E.2d 628, 632
(2003) (trial court's finding on classification as marital or
separate will be upheld where there is any competent evidence to
support it).
Next, we address defendant's argument that the trial court
erred in awarding plaintiff a one-fourth interest in the 66-acre
parcel, subject to a life estate. Defendant does not explain inhis brief how the trial court erred in its determination. Rather,
he seems to argue again that the trial court erred in classifying
the one-half remainder interest in the tract purchased by defendant
from his brother as marital property. As discussed supra, the
trial court did not err in its classification. It follows that
dividing up the 66-acre parcel, one-half of which was defendant's
separate property and one-half of which was marital property,
according to these classifications was not in error. The trial
court properly granted plaintiff a one-fourth interest in the
parcel, subject to the life estate. Defendant does not challenge
the appraisal value the court assigned to the parcel. We hold the
trial court did not err in awarding plaintiff the value of her one-
fourth interest in the amount of $33,696.00.
Affirmed.
Judges McGEE and STEELMAN concur.
Report per Rule 30(e).
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