ALMA LOIS MITCHELL,
Plaintiff,
Wilkes County
v
.
No. 02 CVD 16
JOHN MITCHELL,
Defendant.
LEVINSON, Judge.
Alma Lois Mitchell (wife) appeals from an equitable
distribution judgment. We reverse and remand.
John Mitchell (husband) and his wife were married on 7 April
1971. The parties separated on 10 January 2001 and were divorced
18 February 2003. Two children were born of the marriage.
After numerous days of trial, spanning nine (9) months, the
trial court made the following findings of fact:
3. The plaintiff is a 52 year old female who
has some college level education. She was
employed for over 20 years with the federal
government in a position with the USDA. She
is now in poor health and receiving
disability.
4. The defendant is a 59 year old male who has
a high school education. He is in fairly goodhealth and is self employed as a cabinet
maker.
5. The parties were married on April 7, 1991;
separated on January 10, 2001; and divorced on
February 18, 2003.
6. The parties are parents of Lisa Michelle
Mitchell and John Michael Mitchell, both who
are over the age of 18.
7. Both parties were employed throughout the
course of the marriage.
8. Since the date of separation the defendant
has paid a mortgage debt of $33,445.58 down to
around $8,000.
9. Since the date of separation the defendant
has paid a home equity loan of $6107.70
completely off.
10. Since the date of separation, the
defendant has incurred debt and negative
credit issues due to the plaintiff taking out
credit cards in the name of the defendant.
11. The items [on attached exhibit] are
marital property and have the values assigned
as of the date of separation.
Upon these findings, the trial court concluded that the items
enumerated on an exhibit were marital property; that “after careful
consideration of all the factors in North Carolina General Statute
50-20 . . . an unequal division of the marital property” would be
“an equitable division”; and that, to “achieve equity,” a
distributive award of $26,685.85 to wife “was necessary in order to
. . . supplement the court's distribution of the marital property.”
In wife's first argument on appeal, she contends that certain
findings of fact are not supported by competent evidence in the
record. With respect to finding of fact number 9, she contends theevidence showed the home equity loan husband paid was $6,051.55,
not $6,107.70; and with respect to finding of fact number 8, she
contends the mortgage debt was $32,898.05, not $33,445.58. We do
not address whether wife's contentions regarding these figures are
correct. We do, however, address wife's challenges to findings of
fact 7 and 10.
(See footnote 1)
“Appellate review of findings of fact 'made by a trial judge,
without a jury, is limited to . . . whether there is competent
evidence to support the findings of fact.'” Kroh v. Kroh, 152 N.C.
App. 347, 355, 567 S.E.2d 760, 765 (2002)(quoting Lee Cycle Center,
Inc. v. Wilson Cycle Center, Inc., 143 N.C. App. 1, 9, 545 S.E.2d
745, 750 (2001)).
Finding of fact number 7 provides that “[b]oth parties were
employed throughout the course of the marriage.” On the contrary,
the evidence indicates that wife has been in declining health since
1994 and unemployed since 1996. Specifically, the transcript
reveals the following pertinent testimony by wife:
Q. Okay. Now again, with regard to your
physical condition, you've not been able
to work anywhere since 1996?
A. No, sir.
Consequently, the record fails to reveal competent evidence to
support all of finding of fact number 7.
Wife also challenges finding of fact number 10, which provides
that “[s]ince the date of separation the defendant has incurred
debt and negative credit issues due to plaintiff taking out credit
cards in the name of the defendant.” Our review of the record
suggests that the portion of this finding that concerns wife
“taking out credit cards in the name of defendant” is not
supported. While husband testified that “[t]here's $32,000 in
credit cards against my credit with the Credit Bureau[,]” and
asserted that he has received bills from companies on cards taken
out after the separation, there is no competent record evidence
tending to show that wife took out cards in defendant's name.
In wife's next argument on appeal, she contends that the trial
court committed reversible error by failing to consider all of the
statutory factors mandated by N.C. Gen. Stat. § 50-20(c) (2005).
This argument has merit.
Under G.S. § 50-20(c), there is a presumption that “[t]he
marital property is to be distributed equally, unless the court
determines equal is not equitable.” Crowder v. Crowder, 147 N.C.
App. 677, 681, 556 S.E.2d 639, 642 (2001). “If the trial court
divides property unequally, it must make findings of fact based on
the evidence in support of its conclusion that an equal division
would not be equitable.” Khajanchi v. Khajanchi, 140 N.C. App.
552, 558, 537 S.E.2d 845, 849 (2000). The statute sets forthtwelve distributional factors for the court to consider in making
its determination. See G.S. § 50-20(c).
If evidence is presented only as to one of the
section 50-20 statutory factors and that
evidence weighs toward an unequal
distribution, a finding as to that single
factor will support the trial court's
conclusion of unequal distribution. However,
if evidence is presented as to several
statutory factors, the trial court must make
findings as to each factor for which evidence
was presented. Finally, a finding stating
that the trial court has merely given due
regard to the section 50-20 factors is
insufficient as a matter of law.
Rosario v. Rosario, 139 N.C. App. 258, 261-62, 533 S.E.2d 274, 276
(2000) (internal citations omitted). Here, the trial court ordered
an unequal distribution of the marital estate. The trial court did
so without making sufficient findings as to the G.S. § 50-20
factors, and by stating in conclusory fashion that it had
“considered” all of the factors. This cannot withstand appellate
review where, as here, the trial court failed to make findings as
to certain distributional factors enumerated in G.S. § 50-20(c) for
which evidence was presented. See id. For example, evidence was
presented as to “[t]he income, property and liabilities of each
party at the time the division of property [was] to become
effective.” N.C. Gen. Stat. § 50-20(c)(1) (2005). However, little
or no detail is set forth in the findings concerning this factor.
Furthermore, without making any comment on what the trial court
should find, we suggest the trial court consider, as argued by
wife, whether husband converted marital property after the date of
separation and before the time of distribution. See N.C. Gen.Stat. § 50-20(c)(11a) (2005). In this regard, wife contends that
the order must address, e.g., monies husband allegedly obtained
when he closed a joint checking account; receipts from the auction
of farm equipment; and rental income from the parties' real
property.
As a final matter, and as argued by wife on appeal, the
findings of fact and conclusions of law simply do not assist this
Court in understanding how the trial court evaluated the evidence
and classified, valued and distributed the property. For example,
we are uncertain how husband's payment of debts specified in
findings of fact 8 and 9 impacted the equitable distribution; as
suggested by wife on appeal, the source of funds used to pay these
debts could impact the outcome. Moreover, as argued by wife, there
is nothing in the court order to account for alleged monies from a
joint checking account. And while an attachment to the court order
references “household items,” and places a total value of $5,500.00
on them, we cannot be certain on this record that the court has
actually valued and distributed all items.
In short, the order on equitable distribution is incomplete.
We recognize that the demands on our district court judges are
great, and that they are responsible for the entry of virtually
hundreds of court orders on a continuing basis. Nonetheless, we
cannot sustain the order on appeal. The trial court must identify,
value and classify all property involved as separate, marital or
divisible; determine the net market value of the marital and
divisible property as of the date of separation; determine whatdivision of the marital and divisible property is equitable; and
distribute the property accordingly. Suzanne Reynolds, Lee's North
Carolina Family Law, § 12.142 (5th ed. revised, 2002).
Additionally, in performing these tasks, the trial court must be
specific and detailed enough to enable a reviewing court to
determine what was done and to evaluate its correctness. Wade v.
Wade, 72 N.C. App. 372, 376, 325 S.E.2d 260, 266 (1985).
Reversed and remanded.
Judges TYSON and BRYANT concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***