Alexander v. Alexander

315 S.E.2d 772, 68 N.C. App. 548, 1984 N.C. App. LEXIS 3418

• Court: Court of Appeals of North Carolina
• Decided: June 5, 1984
• Docket: 8328DC391
• Status: Published

Opinion

WELLS, Judge.

In the record on appeal plaintiff has grouped nineteen exceptions under one assignment of error, and in his brief has presented fifteen of those exceptions in one argument. Plaintiff’s exceptions, so lumped together, present issues of law as to whether the evidence supports findings of fact, as to whether the findings of facts support conclusions, and as to whether the judgment is supported by the evidence and conclusions. Such procedure is in clear violation of Rules 10 and 28 of the Rules of Appellate Procedure and therefore this appeal is subject to dismissal. Because of the important questions apparent in the appeal, we deem it appropriate, in our discretion, to consider plaintiffs appeal on its merits.

North Carolina’s Equitable Distribution of Marital Property Act (the Act), N.C. Gen. Stat. § 50-20 and -21 (1983 Cum. Supp.), provides for the equitable distribution of marital property upon divorce. A threshold requirement of the Act is for the trial court, by appropriate findings of fact, to determine what property owned by the parties to the divorce constitutes “marital property.” G.S. § 50-20(a). The rights of the parties to such property vest at the time of filing of the divorce action, G.S. § 50-20(k), but in a G.S. § 50-6 divorce (i.e., based on one year’s separation) as is the case here, the property must be valued as of the time of separation of the parties, G.S. § 50-21(b). The division of property is to be accomplished by using “net value,” G.S. § 50-20(c); but the statute does not define “net value.” Resorting to accepted standards of statutory construction, we give the term “net value” its ordinary and commonly understood interpretation: i.e., market value, if any, less the amount of any encumbrance serving to offset or reduce market value.

Having determined what property has properly vested as marital property and its net value at the time of separation, the trial court must then make an equal division of such 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 equitably.” G.S. § 50-20(c). In making these determinations, the court must consider the following factors:

(1) The income, property, and liabilities of each party at the time the division of property is to become effective;

(2) Any obligation for support arising out of a prior marriage;

(3) The duration of the marriage and the age and physical and mental health of both parties;

(4) The need of a parent with custody of a child or children of the marriage to occupy or own the marital residence and to use or own its household effects;

(5) The expectation of nonvested pension or retirement rights, which is separate property;

(6) Any equitable claim to, interest in, or direct or indirect contribution made to the acquisition of such marital property by the party not having title, including joint efforts or expenditures and contributions and services, or lack thereof, as a spouse, parent, wage earner or homemaker;

(7) Any direct or indirect contribution made by one spouse to help educate or develop the career potential of the other spouse;

(8) Any direct contribution to an increase in value of separate property which occurs during the course of the marriage;

(9) The liquid or nonliquid character of all marital property;

(10) The difficulty of evaluating any component asset or any interest in a business, corporation or profession, and the economic desirability of retaining such asset or interest, intact and free from any claim or interference by the other party;

(11) The tax consequences to each party; and

(12) Any other factor which the court finds to be just and proper.

We are persuaded, and so hold, that this statute sets forth a presumption of equal division which requires that the marital property be equally divided between the parties in the usual case and in the absence of some reason(s) compelling a contrary result. If, in a particular case, the court concludes after its careful and clearly articulated consideration of all of the statutory factors and of any non-statutory factor raised by the evidence which is reasonably related to the rights to, interest in, and need for the marital property, that an equal division is not equitable, the trial court may properly order an unequal division, but should state in its order the basis and reasons for its division. In other words, the trial court should clearly set forth in its order findings of fact based on the evidence which support its conclusion that an equal division is not equitable. Such a proper order should not be disturbed on appeal unless the appellate court, upon consideration of the cold record, can determine that the division ordered by the trial court, has resulted in an obvious miscarriage of justice.

With these principles in mind, we now address plaintiffs assignments of error. Plaintiff has attacked a number of the trial court’s findings of fact as not being supported by the evidence. The trial court’s findings, such as they were, appear to be supported by the evidence and are therefore binding on us. We do note, however, that the findings as to how the parties acquired their marital residence property are somewhat confusing, but since the trial court classified this property as marital property, these findings are not ipso facto erroneous. The trial court’s findings, however, are not sufficient to support its ultimate disposition of the parties’ marital property and are not sufficient to allow us to determine from the record the basis upon which the trial court reached its legal conclusions. See Quick v. Quick, 305 N.C. 446, 290 S.E. 2d 653 (1982). The findings were deficient in the following specific respects.

First, the findings failed to establish the net value of the parties’ marital property, either personal or real, at the time of the parties’ separation.

Second, the findings as to G.S. § 50-20(c)(l) dealt only with plaintiffs income, did not mention defendant’s income or ability to earn 1 and did not reach the matter of the property of the parties, nor their liabilities, at the time the division of the property was to become effective.

Third, there were no findings as to the age or mental or physical health of the parties. 2

Fourth, although the evidence showed plaintiff to be the custodial parent, there were no findings as to plaintiffs need to occupy or own the marital residence or plaintiff s needs to own or use its household effects.

Fifth, there were no findings as to the liquid or nonliquid character of the parties’ marital property.

For clarity, we note that some of the conclusions entered by the trial court were actually findings of fact.

For the reasons we have given, the trial court’s conclusion that an equal division of the parties’ marital property would not be equitable is not supported by its findings of fact. Additionally, we emphasize that upon remand, an order of unequal division may be justified only if the trial court finds that facts exist which compel the conclusion that an equal division would not be equitable.

This matter must be remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

Judges Arnold and Braswell concur.

1 . The evidence showed that although defendant was unemployed, she was both a licensed real estate broker and a licensed cosmetologist.

2 . Although the trial court recited medical testimony bearing on defendant’s mental health, such recitations do not constitute findings of fact.