Appeal by defendant from order entered 5 May 2006 by Judge
Robert S. Cilley in Henderson County District Court. Heard in the
Court of Appeals 20 August 2007.
Donald H. Barton, P.C., by Donald H. Barton, for plaintiff-
appellee.
C.R. “Skip” Long, Jr. for defendant-appellant.
MARTIN, Chief Judge.
Defendant (“wife”) appeals from an order of equitable
distribution of marital and divisible property. Plaintiff
(“husband”) and wife were married on 27 June 1987 and separated on
27 January 2002. One minor child was born of the marriage, and the
parties shared joint custody of the child on a rotating, week-to-
week basis. Husband filed a complaint seeking absolute divorce and
equitable distribution on 30 January 2003. Wife filed an answer
and counterclaim, admitting allegations related to the absolute
divorce and seeking equitable distribution of the marital and
divisible property. Husband filed a reply. On 5 December 2003, a judgment granting husband an absolute
divorce was entered, and some of the issues pertaining to
distribution of property were resolved upon wife's motion for
interim distribution. The issues associated with the equitable
distribution claims were addressed at trial in 2006. The parties
submitted schedules detailing the items of personal property to be
distributed. Issues before the court also included the
distribution of the marital home, referred to by the court as the
“Tuxedo property,” and the marital debt. The trial court made
findings of the marital debt as of the date of separation, of
husband's payments decreasing those debts after separation, and of
a cash advance taken by wife after separation. The court also
found that the marital home had a value on the date of separation
of $185,000 and its value had increased to $220,000 since the date
of separation. The court considered several distributional factors
and made the following distribution in its 5 May 2006 order: the
personal property listed on the schedules was distributed between
the parties; the marital debts were assigned to husband; the
marital home, including its encumbrances, was awarded to husband;
and wife was awarded $58,000 to be paid by husband within one year
of the entry of the order. Wife appealed.
Wife first argues that the trial court erred, in contravention
of N.C.G.S. § 50-20, in its finding “[i]n as much as [husband's]
payments reduced marital debts, after [the date of separation], the
court considers them to be distributional factors.” Wife arguesthat husband's post-separation payments toward marital debt were
improperly considered as a distributional factor. This argument
raises the question whether the trial court in this case had the
discretion to treat post-separation payments that decreased marital
debt as a distributional factor.
This Court has noted:
The appropriate treatment of post
separation payments made by one spouse toward
marital debt will vary depending upon the
facts of the particular case. . . . The trial
court is in the best position to determine the
most equitable treatment of post-separation
payments toward marital debt; therefore, the
determination is left to the discretion of the
trial court.
Edwards v. Edwards, 110 N.C. App. 1, 13, 428 S.E.2d 834, 840
(1993). This Court also has held that it is within the trial
court's discretion to treat post-separation payments toward marital
debt as a distributional factor,
Fox v. Fox, 103 N.C. App. 13, 21,
404 S.E.2d 354, 358 (1991), and that post-separation mortgage
payments on marital property may not be treated as divisible
property.
Hay v. Hay, 148 N.C. App. 649, 655, 559 S.E.2d 268, 272-
73 (2002). Each of these preceding cases relied upon the language
in N.C.G.S. § 50-20 as it existed before it was amended in 2002.
Effective after 11 October 2002, the definition of divisible
property appearing in § 50-20(b)(4)(d) was amended to include
decreases in marital debt. 2002 N.C. Sess. Laws ch. 159, § 33.5.
In light of this statutory change, this Court has concluded “[where
husband's] payments decreased financing charges and interest
related to marital debt, those payments-to the extent made after 11October 2002-constituted divisible property.”
Warren v. Warren,
175 N.C. App. 509, 517, 623 S.E.2d 800, 805 (2006). This Court has
further recognized that “[a] trial court must value all marital and
divisible property . . . in order to reasonably determine whether
the distribution ordered is equitable.”
Cunningham v. Cunningham,
171 N.C. App. 550, 556, 615 S.E.2d 675, 680 (2005).
In this case, the parties were separated in January 2002. To
the extent that husband's post-separation payments decreasing
marital debt were made on or before 11 October 2002, the trial
court retained discretion to treat the decrease in debt as a
distributional factor; however, to the extent payments were made
after 11 October 2002, the court was required to treat the decrease
in debt as divisible property and provide for its equitable
distribution between the parties pursuant to N.C.G.S. § 50-20. The
trial court's findings do not address the issue of when the
decrease in marital debt occurred; thus, we are unable to determine
whether the court correctly applied the law. Upon remand, the
trial court shall make findings as to what portion of the decrease
in marital debt occurred after 11 October 2002, and the court shall
equitably distribute it as divisible property, in accordance with
N.C.G.S. § 50-20.
Wife also contends that the trial court erred when it failed
to make any findings of fact on the distributional factor of the
respective parties' needs to occupy the marital home as parents of
the minor child with custody. North Carolina law requires that,
“[i]f the court determines that an equal division is not equitable,the court shall . . . consider all of the following factors under
this subsection: . . . (4) The need of a parent with custody of a
child or children of the marriage to occupy or own the marital
residence.” N.C. Gen. Stat. § 50-20(c) (2005). “In determining
whether an equal distribution is equitable, the trial court must
make findings of fact showing its due consideration of the evidence
presented by the parties in support of the factors enumerated under
section 50-20(c).”
Daetwyler v. Daetwyler, 130 N.C. App. 246, 249,
502 S.E.2d 662, 665 (1998),
aff'd, 350 N.C. 375, 514 S.E.2d 89
(1999) (per curiam). In this case, the parties share custody on a
rotating, week-to-week basis. At the hearing, wife presented
evidence that, as a parent of a child of the marriage with joint
custody on a rotating basis, the marital home was well-suited to
her needs in taking care of her son and she did not have any other
home to which she could move. Furthermore, husband owned a home as
his separate property and was living with his current wife at the
time of the hearing. Based on this evidence, the court should have
made a finding on this distributional factor. Upon remand, the
trial court shall make additional findings of fact on this
distributional factor in accordance with N.C.G.S. § 50-20(c).
Wife also argues that the trial court erred in failing to
consider, assign, and distribute the $35,000 divisible post-
separation increase in the value of the marital home, in accordance
with N.C.G.S. § 50-20(c). We first note that the court did
consider, assign, and distribute the divisible portion of the
marital home's worth. The court found: “The gross value of theTuxedo property on [the date of separation] was $185,000 . . . .
The present gross value of the Tuxedo property is $220,000. . . .
The court considers the increase in value since [the date of
separation] to be divisible property.” Ultimately, the court
decided: “The Tuxedo property, subject to the debt that encumbers
it, is awarded to [h]usband.” The court's award clearly
encompassed both the marital and divisible portions of the value of
the house. Any argument as to the proper distribution of this
divisible property cannot be reviewed in the absence of the
necessary findings of fact determining the amount of divisible
property as previously discussed in this opinion.
Wife's final argument assigns error to the trial court's
failure to secure the award due to wife from husband, citing
N.C.G.S. § 50-20(e). The statute states “[t]he court
may provide
that any distributive award payable over a period of time be
secured by a lien on specific property.” N.C. Gen. Stat. § 50-
20(e) (2005) (emphasis added). Wife admits that the law does not
require a trial judge to secure the award with a lien; rather wife
argues that the court abused its discretion in failing to do so.
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.
White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985)
(citations omitted). Quite to the contrary, in the present case,
the trial court's decision was reasonable. It was unnecessary forthe court to require the award to be secured because N.C.G.S. § 1-
234 allows for a judgment of equitable distribution to be enforced
as a lien against real property. N.C. Gen. Stat. § 1-234 (2005);
see also Martin v. Roberts, 177 N.C. App. 415, 422, 628 S.E.2d 812,
817 (2006);
Union Grove Milling & Mfg. Co. v. Faw, 103 N.C. App.
166, 168-69, 404 S.E.2d 508, 510 (1991). Accordingly, wife's
assignment of error is overruled.
Reversed in part and remanded for additional findings of fact
as provided in this opinion.
Judges McCULLOUGH and TYSON concur.
Report per Rule 30(e).
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