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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.
NANCY L. STONE, Plaintiff, v. EDMOND SCOTT STONE, Defendant
NO. COA06-648
Filed: 20 February 2007
1. Appeal and Error--preservation of issues--failure to include transcript--findings of
fact presumed supported by competent evidence
The trial court did not err in an equitable distribution case by its findings of fact
numbered 9, 25, and 26, because defendant failed to include a transcript of the hearing in the
record, and thus, the court's findings of fact are presumed to be supported by competent
evidence.
2. Divorce--equitable distribution-_marital property-_gifts--sufficiency of evidence
The trial court erred in an equitable distribution case by awarding plaintiff wife a lot
valued at $35,000 separate from the marital home because plaintiff had invested $20,000 of her
separate funds in the marital home and plaintiff's mother had given the parties $15,000 during
the marriage for improvements to the marital home, and the case is remanded for a new
distributional order, because: (1) personal property acquired by either spouse or both spouses
during the course of the marriage and before the date of separation of the parties is presumed to
be marital property; (2) the practical effect of awarding the lot to plaintiff outside the division of
the other marital property was an unequal distribution of the marital estate; (3) the trial court
expressly found that an equal distribution of the marital estate was equitable and did not find the
existence of any distributional factor under N.C.G.S. § 50-20(c); and (4) the parties' marital
home is titled as a tenancy by the entirety, and plaintiff's $20,000 and her mother's $15,000
totaling $35,000 toward the marital home are presumed to be gifts to the marital estate.
Judge STROUD concurring in a separate opinion.
Appeal by defendant from judgment entered 18 January 2006 by
Judge John M. Britt in Edgecombe County District Court. Heard in
the Court of Appeals 10 January 2007.
W. Michael Spivey, for plaintiff-appellee.
Narron & Holdford, P.A., by I. Joe Ivey, for defendant-
appellant.
TYSON, Judge.
Edmond Scott Stone (defendant) appeals from judgment entered
directing a distribution of the parties' marital and divisible
property. We affirm in part, reverse in part, and remand.
I. Background
On 16 February 1991, Nancy L. Stone (plaintiff) and
defendant married. Two children were born of the marriage. On 22
June 2002, plaintiff and defendant separated. Defendant provided
the primary residence for the two children and the parties shared
custody of both children.
On 25 July 2002, plaintiff filed a complaint against defendant
for child custody, child support, divorce from bed and board, and
for equitable distribution. On 24 November 2003, the trial court
entered an order, which granted the parties a divorce. On 18
January 2006, the trial court entered an order after finding an
equal distribution of the marital assets was equitable. The trial
court's order contained the following relevant findings: (1) an
equal distribution of marital property was equitable; (2) the
marital home in Macclesfield was marital property titled in tenants
by the entirety; (3) Lot 1, Whispering Woods (Lot 1), a separate
and distinct lot from the marital home, was marital property valued
at $35,000.00; (4) plaintiff invested $20,000.00 of her separate
funds into the purchase of the marital home; and (5) plaintiff's
mother had given the parties $15,000.00 during the course of the
marriage for improvements to the marital home.
The trial court equally divided all marital property except
Lot 1 valued at $35,000.00. The trial court concluded plaintiff
should retain ownership of Lot 1 as compensation for her and her
mother's $35,000.00 separate investments. Defendant appeals.
II. Issues
Defendant argues the trial court erred because: (1) no
competent evidence supports findings of fact numbered 9, 25, and
26; (2) the trial court awarded plaintiff Lot 1 as compensation for
her and her mother's separate $35,000.00 investment; and (3) the
findings of fact and conclusions of law which distributed marital
property resulted in an unequal division and distribution of
marital property to plaintiff and violated N.C. Gen. Stat. § 50-
20(c).
III. Standard of Review
In White v. White, our Supreme Court set forth the proper
standard of review of equitable distribution awards as follows:
Historically our trial courts have been
granted wide discretionary powers concerning
domestic law cases. The legislature also
clearly intended to vest trial courts with
discretion in distributing marital property
under N.C.G.S. 50-20, but guided always by the
public policy expressed therein favoring an
equal division. The legislative intent to
vest our trial courts with such broad
discretion is emphasized by the inclusion of
the catch-all factor codified in N.C.G.S. 50-
20(c)(12).
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. A trial court may be reversed for
abuse of discretion only upon a showing that
its actions are manifestly unsupported by
reason. 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.
312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985) (internal quotations
and citations omitted).
IV. Findings of Fact
[1] Defendant argues no competent evidence supports findings
of fact numbered 9, 25, and 26, which state:
9. Plaintiff further testified that her Mother
gave the parties $15,000.00, during the course
of the marriage, to pay for improvements made
to a shop located behind the marital home.
25. The only remaining marital asset which has
not been distributed consists of Lot 1
Whispering Woods with a value of $35,000.00 as
designated on Exhibit A (Lot (still owned)).
The Plaintiff is entitled to be reimbursed for
her $20,000.00 investment of separate funds in
the purchase of the marital home as well as
the $15,000.00 gift from her Mother used to
improve the marital real property.
26. The Plaintiff is hereby awarded all right,
title and ownership interest in Lot 1
Whispering Woods to compensate her for the
$35,000.00 investment referenced above in
paragraph 25.
(Emphasis supplied). Defendant failed to include a transcript of
the hearing with the record.
When '[t]he record does not contain [a transcript of] the
oral testimony, . . . the court's findings of fact are presumed to
be supported by competent evidence.' Davis v. Durham Mental
Health/Dev. Disabilities Area Auth., 165 N.C. App. 100, 111, 598
S.E.2d 237, 245 (2004) (quoting Fellows v. Fellows, 27 N.C. App.
407, 408, 219 S.E.2d 285, 286 (1975)). Past cases have reviewed
the impact of failing to include a transcript in the record on
appeal. Our review of appellate arguments is hampered . . .
[when] defendants have included no transcript or narration of the
evidence upon which this Court can fully review this assignment of
error. Dolbow v. Holland Industrial, 64 N.C. App. 695, 696, 308S.E.2d 335, 336 (1983), disc. rev. denied, 310 N.C. 308, 312 S.E.2d
651 (1984).
The burden is on an appealing party to show, by presenting a
full and complete record, that the record is lacking in evidence to
support the [trial court's] findings of fact. Id. When an
appellant fail[s] to include a narration of the evidence or a
transcript with the record, we presume the findings at bar are
supported by competent evidence. Davis, 165 N.C. App. at 112, 598
S.E.2d at 245. Due to defendant's failure to include a transcript
of the testimony before the trial court in the record on appeal,
all findings of fact, including 9, 25, and 26, are presumed to be
supported by competent evidence. Id. This assignment of error is
overruled.
V. Lot 1
[2] Defendant argues the trial court's conclusions of law
numbered 4, 5, and 6, awarding plaintiff Lot 1 are not supported by
findings of fact numbered 8, 9, 25, and 26. Defendant asserts
plaintiff was not entitled to be reimbursed $35,000.00 allegedly
paid from plaintiff and her mother's separate funds as a matter of
law. We agree.
The trial court found Lot 1 to be marital property and entered
the following findings of fact:
8. Plaintiff testified on September 20, 2004
that she paid a $20,000.00 down payment toward
the purchase of the parties' marital home
using her separate funds.
9. Plaintiff further testified that her Mother
gave the parties $15,000.00, during the courseof the marriage, to pay for improvements made
to a shop located behind the marital home.
25. The only remaining marital asset which has
not been distributed consists of Lot 1
Whispering Woods with a value of $35,000.00 as
designated on Exhibit A (Lot (still owned)).
The Plaintiff is entitled to be reimbursed for
her $20,000.00 investment of separate funds in
the purchase of the marital home as well as
the $15,000.00 gift from her Mother used to
improve the marital real property.
26. The Plaintiff is hereby awarded all right,
title and ownership interest in Lot 1
Whispering Woods to compensate her for the
$35,000.00 investment referenced above in
paragraph 25.
(Emphasis supplied). The trial court entered the following
conclusion of law:
6. The Plaintiff shall retain all right, title
and ownership interest in Lot 1 Whispering
Woods valued at $35,000.00 for the purpose of
compensating Plaintiff for the separate
investment of $35,000.00 by Plaintiff and her
Mother toward the purchase and/or improvement
of marital property.
[A] presumption of a gift of separate property to the marital
estate arises when a spouse uses separate funds to furnish
consideration for property conveyed to the marital estate, as
demonstrated by titling property as a tenancy by the entirety.
McLean v. McLean, 323 N.C. 543, 546, 374 S.E.2d 376, 378 (1988).
N.C. Gen. Stat. § 50-20(b)(2) (2005) provides that property
acquired by gift from the other spouse during the course of the
marriage shall be considered separate property as a matter of law
if such an intention is stated in the conveyance. The
contributing spouse may rebut this presumption by presenting clear,
cogent, and convincing evidence that the investment was intended toremain separate property. McLean, 323 N.C. at 552, 374 S.E.2d at
382.
A. Equitable Distribution Analysis
A trial judge is required to conduct a three-step analysis
when making an equitable distribution of the marital assets.
Beightol v. Beightol, 90 N.C. App. 58, 63, 367 S.E.2d 347, 350,
disc. rev. denied, 323 N.C. 171, 373 S.E.2d 104 (1988). These
steps are: (1) to determine which property is marital property,
(2) to calculate the net value of the property, fair market value
less encumbrances, and (3) to distribute the property in an
equitable manner. Id. (citing Cable v. Cable, 76 N.C. App. 134,
331 S.E.2d 765, disc. rev. denied, 315 N.C. 182, 337 S.E.2d 856
(1985)). The initial obligation of the trial court in any
equitable distribution action is to identify the marital property
in accordance with G.S. 50-20 and the appropriate case law.
Cornelius v. Cornelius, 87 N.C. App. 269, 271, 360 S.E.2d 703, 704
(1987) (citing Mauser v. Mauser, 75 N.C. App. 115, 330 S.E.2d 63
(1985) (the trial court's order failed to list or determine the
status of two bank accounts)). A distribution order failing to
list all the marital property is fatally defective, and, further,
marital property may not be identified by implication. Id.
(citation omitted).
[T]he court [is] required to identify the
marital property with sufficient detail to
enable an appellate court to review the
decision and test the correctness of the
judgment. The fact that there is evidence in
the record from which sufficient findings
could be made does not excuse the error.
Wade v. Wade, 72 N.C. App. 372, 376, 325 S.E.2d 260, 266 (citation
omitted), disc. rev. denied, 313 N.C. 612, 330 S.E.2d 616 (1985).
The purpose for the requirement of specific findings of fact
that support the court's conclusion of law is to permit the
appellate court on review 'to determine from the record whether the
judgment -- and the legal conclusions that underlie it -- represent
a correct application of the law.' Patton v. Patton, 318 N.C.
404, 406, 348 S.E.2d 593, 595 (1986) (quoting Coble v. Coble, 300
N.C. 708, 712, 268 S.E.2d 185, 189 (1980)). Although the trial
court [is] not required to recite in detail the evidence considered
in determining what division of the property would be equitable, it
[is] required to make findings sufficient to address the statutory
factors and support the division ordered. Armstrong v. Armstrong,
322 N.C. 396, 405, 368 S.E.2d 595, 600 (1988). When the findings
and conclusions are inadequate, appellate review is effectively
precluded. Id.
B. Findings of Fact
The trial court entered finding of fact numbered 8 that
plaintiff testified $20,000.00 was her separate property.
Defendant failed to include a transcript with the record. As noted
above, we presume this finding of fact is supported by competent
evidence. Davis, 165 N.C. App. at 112, 598 S.E.2d at 245.
The trial court failed to classify either plaintiff's alleged
separate $20,000.00 or her mother's gift of $15,000.00 as either
separate or marital property. The trial court found plaintiff's
mother's $15,000.00 gift was given to the parties . . . during thecourse of the marriage. [P]ersonal property acquired by either
spouse or both spouses during the course of the marriage and before
the date of the separation of the parties is presumed to be
marital property. N.C. Gen. Stat. § 50-20(b)(1).
The parties agree that the trial court may not consider . .
. the source of a spouse's separate property as a distributional
factor. Daetwyler v. Daetwyler, 130 N.C. App. 246, 251, 502
S.E.2d 662, 666 (1998) (The trial court improperly considered, as
a distributional factor, that the parties each received their
separate interests in the tree farm from the defendant's mother.),
aff'd per curiam, 350 N.C. 375, 514 S.E.2d 89 (1999). Nonetheless,
a spouse's separate investment in the marital home may be
considered by the trial court as a distributional factor to support
an unequal distribution of the marital estate. Collins v. Collins,
125 N.C. App. 113, 116, 479 S.E.2d 240, 242, disc. rev. denied, 346
N.C. 277, 487 S.E.2d 542 (1997); N.C. Gen. Stat. § 50-20(c)(12).
The practical effect of awarding Lot 1 to plaintiff outside
the division of the other marital property is an unequal
distribution of the marital estate. The trial court expressly
found that an equal distribution of the marital estate is equitable
and did not find the existence of any distributional factor
pursuant to N.C. Gen. Stat. § 50-20(c). The parties' marital home
is titled as a tenancy by the entirety. Plaintiff's $20,000.00 and
her mother's $15,000.00 gift totals $35,000.00 toward the marital
home and is presumed to be gifts to the marital estate. The trialcourt's findings of fact are insufficient to support an unequal
distribution of the marital estate.
The trial court failed to classify whether plaintiff's alleged
$20,000.00 contribution from her separate funds or her mother's
$15,000.00 gift to the parties . . during the course of marriage
were separate or marital property and failed to find or conclude
whether plaintiff had rebutted the presumption that her $20,000.00
contribution and her mother's $15,000.00 gift were marital
property. The trial court's findings of fact do not support the
conclusion that plaintiff should be compensated for the separate
investment of $35,000.00 by Plaintiff and her Mother toward the
purchase and/or improvement of marital property. Remand is
necessary for a new distributional order. See Daetwyler, 130 N.C.
App. at 251, 502 S.E.2d at 666 (remand for new distributional order
when trial court considered the source of property as a separate
distributional factor). That portion of the trial court's order is
reversed and remanded. Because we remand for further findings and
conclusions and entry of a new distributional order, it is
unnecessary to address defendant's third argument.
VI. Conclusion
In the absence of a transcript of the hearing, competent
evidence is presumed to support all of the trial court's findings
of fact, including 9, 25, and 26. The trial court's conclusions of
law numbered 4, 5, and 6, awarding plaintiff Lot 1, are not
supported by findings of fact numbered 8, 9, 25, and 26. Gifts made to the parties during the marriage are presumed to
be marital property. N.C. Gen. Stat. § 50-20(b)(1). On remand,
the trial court must make additional findings of fact and
conclusions of law to effect an equitable distribution, equal or
unequal, of the marital property of the parties. If the trial
court determines that an unequal distribution is equitable, the
court must make the appropriate findings of fact regarding
distributional factors pursuant to N.C. Gen. Stat. § 50-20(c). We
reverse in part and remand for further proceedings consistent with
this opinion.
Affirmed in Part; Reversed in Part, and Remanded.
Judge STEPHENS concurs.
Judge STROUD concurs by separate opinion.
STROUD, Judge concurring.
I concur in the result reached by the majority and further
agree that the trial court's award of Lot 1 Whispering Woods (Lot
1) to plaintiff for the purpose of compensating her for a $35,000
separate investment into the marital home is unsupported by the
findings of fact contained in the court's distributional order.
This conclusion of law is reviewable de novo. Shear v. Stevens
Bldg Co., 107 N.C. App. 154, 160, 418 S.E.2d 841, 845 (1992). I
write separately to clarify the rationale for my decision.
The trial court's distributional order contained the following
relevant findings: (1) An equal distribution of martial property
is equitable; (2) Lot 1 is marital property valued at $35,000; (3)
The marital home in Macclesfield is marital property; (4) Themarital home in Macclesfield is owned by the parties as tenants by
the entirety; (5) Plaintiff invested $20,000 of her separate
property to purchase the marital home; and (6) Plaintiff used a
$15,000 gift from her mother to improve the marital home. The
trial court did not expressly classify the $15,000 gift from
plaintiff's mother as either the marital property or separate
property of plaintiff. Coincidentally, the total of the sums
invested by plaintiff into the marital home was $35,000, and the
value of Lot 1 was also $35,000. Based upon these findings, the
trial court awarded Lot 1 to plaintiff for the purpose of
compensating her for her separate investment. I concur with the
majority that these findings are insufficient to support the award.
[A] presumption of a gift of separate property to the marital
estate arises when a spouse uses separate funds to furnish
consideration for property conveyed to the marital estate, as
demonstrated by titling property as a tenancy by the entirety.
McLean v. McLean, 323 N.C. 543, 546, 374 S.E.2d 376, 378 (1988).
The contributing spouse may rebut this presumption by presenting
clear, cogent, and convincing evidence that the investment was
intended to remain separate property. McLean, 323 N.C. at 552, 374
S.E.2d at 382. Additionally, N.C. Gen. Stat. § 50-20(b)(2)
provides that property acquired by gift from the other spouse
during the course of the marriage shall be considered separate
property as a matter of law if such an intention is stated in the
conveyance. Here, the parties' marital home is titled as a tenancy by the
entirety. Therefore, plaintiff's entire $35,000 investment in the
home is presumed to be a gift to the marital estate. This is true
notwithstanding the trial court's failure to clearly classify
plaintiff's investment of the $15,000 gift from her mother.
Because the trial court made no findings to rebut the presumption
that either plaintiff's $20,000 investment or $15,000 investment
was a gift to the marital estate, this property is presumed to be
marital property for purposes of distribution. For this reason,
the trial court's findings of fact are insufficient to support its
conclusion that plaintiff is entitled to reimbursement for an
investment of separate funds into the marital home.
Alternatively, a spouse's separate investment in the marital
home may be considered by the trial court as a distributional
factor to support an unequal distribution of the marital estate.
Collins v. Collins, 125 N.C. App. 113, 116, 479 S.E.2d 240, 242,
disc. rev. denied, 346 N.C. 277, 487 S.E.2d 542 (1997); N.C. Gen.
Stat. § 50-20(c)(12) (2005). The practical effect of awarding Lot
1 to plaintiff outside the division of the other marital property
is an unequal distribution of the marital estate.
(See footnote 1)
However, the
trial court expressly found that an equal distribution of the
marital estate is equitable and did not find the existence of any
distributional factor pursuant to N.C. Gen. Stat § 50-20(c). Forthis reason, the trial court's findings of fact are insufficient to
support an unequal distribution of the marital estate.
On remand, the trial court must make additional findings of
fact and conclusions of law to effect an equitable distribution,
equal or unequal, of the marital property of the parties.
(See footnote 2)
If the
trial court determines that an unequal distribution is equitable,
the court must make the appropriate findings as to any
distributional factors for which evidence was presented, pursuant
to N.C. Gen. Stat. § 50-20(c).
For the reasons stated above, I concur.
Footnote: 1
Mathematically, the trial court's findings of fact
established that plaintiff should pay defendant a distributive
award of $6,475.00. Instead, the court ordered defendant to pay to
plaintiff a distributive award of $11,025.00.
Footnote: 2
I also note that findings of fact numbers eight and nine in
the trial court's distributional order are simply recitations of
plaintiff's testimony. [V]erbatim recitations of the testimony of
each witness
do not constitute
findings of fact by the trial judge,
because they do not reflect a conscious choice between the
conflicting versions of the incident in question which emerged from
all the evidence presented.
In re Green, 67 N.C. App. 501, 505,
n.1, 313 S.E.2d 193, 195, n.1, (1984). Although findings numbers
eight and nine are not legally sufficient, the content contained
therein is restated in finding of fact number twenty-five, which is
a legally sufficient finding pursuant to N.C. Gen. Stat. § 1A-1,
Rule 52(a). For this reason, this Court may review findings of
fact eight and nine on appeal.
See Davis v. Harrah's Cherokee
Casino, 178 N.C. App. 605, ___, 632 S.E.2d 576, 580 (2006).
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