Atkins v. Atkins

401 S.E.2d 784, 102 N.C. App. 199, 1991 N.C. App. LEXIS 289
CourtCourt of Appeals of North Carolina
DecidedMarch 19, 1991
Docket9018DC774
StatusPublished
Cited by39 cases

This text of 401 S.E.2d 784 (Atkins v. Atkins) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Atkins v. Atkins, 401 S.E.2d 784, 102 N.C. App. 199, 1991 N.C. App. LEXIS 289 (N.C. Ct. App. 1991).

Opinion

GREENE, Judge.

Defendant (Husband) appeals from an order of equitable distribution filed 22 March 1990.

The evidence before the court reveals that the parties were married 23 August 1965. In 1958, the Husband’s father died leaving by will his property to his wife, the Husband’s mother (Mother). The Mother remarried in 1964. In March, 1969, the Mother and her new husband conveyed interests in a tract of land containing 52 acres to the Husband, the Husband’s sister, and the Husband’s brother. Each of the three grantees, all children of the Mother, received a one-sixth undivided interest. The Husband, his brother, and sister paid no monies to their mother in consideration for the deed. On the same day, all the children including the Husband and their wives, along with the Mother and her new husband, conveyed the entire 52 acres of land to Roy L. Hendrix and wife, Hazel M. Hendrix (Hendrix). On the same day, Hendrix executed a deed of trust on the 52-acre tract of land to Frank C. Ausband, Trustee for the Husband, his brother, his sister and his mother. The deed of trust acknowledged the existence of a debt of $51,381.23. The amount of the note and deed of trust reflected the difference between the purchase price of $68,500 and the amount paid at the time of the transfer. The Husband received his pro rata share of the monies paid by Hendrix, including his share of the deposit and his share of the monies received in full payment of the note and deed of trust. Subsequently, the Mother and her husband conveyed several tracts of land to the Husband and plaintiff (Wife) as tenants by the entirety, namely a 13.87-acre tract and a 3.22-acre tract both deeded 15 September 1969.

The trial court found in pertinent part:

*203 5. The date [Wife] and [Husband] separated is November 14, 1986. The Court has valued the marital property as of the date of separation.
13. When the parties separated, [Wife] and [Husband] owned as tenants by the entirety certain real property described as 13.87 acres in Guilford County. Said property was acquired during the marriage as a gift from [Husband]’s mother, Helen Atkins. During the marriage of [Wife] and [Husband], [Husband]’s mother, Helen Atkins, deeded other real property to her various children including [Husband] in their separate names exclusive of their spouses. It is clear to the Court that Helen Atkins knew the difference in deeding property to one of her children versus deeding property to a child and that child’s spouse. . . .
17. The [Wife] offered testimony of a real estate appraiser. The appraiser testified that he looked at the property on May 15, 1988. Based on the condition of the property, its location and comparables at the time, it was his opinion that the property had a fair market value of $160,000 on May 15, 1988. He further testified that in his opinion the property had a fair market value of $155,000 on November 14, 1986, and that it is currently worth between $165,000 and $170,000.
18. The Court finds the value of the real property to be $150,000.00. It is appropriate that the property by [sic] distributed to [Husband].
30. Both parties have contended that an equal division is not equitable.
31. The [Husband] contends that the following factors apply to support an unequal division on [Husband]’s behalf:
(a) The income, property, and debts of each spouse: The [Husband] contends [Wife] has a superior financial standing, particularly she has a better income earning capacity. The Court finds that while [Wife] regularly earned more than [Husband], that he was never unable to work and pursued the career of his choice.
*204 (b) The length of the marriage and age and health of each spouse: [Husband] contends that his health is such that he cannot obtain employment comparable to [WifeJ’s employment. The Court finds no credible evidence supporting this position.
(c) The efforts made by each spouse to acquire the property: The [Husband] contends that the real property was acquired through [Husband]’s family. The Court finds that the marital real property was never [HusbandJ’s separate property, but rather finds that it was a gift to [Wife] and [Husband] and that both contributed fully to its development.
(e) The actions taken by either spouse to preserve or waste (diminish) marital assets: [Husband] contends he has concentrated his efforts in the maintenance and preservation of all of the marital property. [Husband] contends [Wife] has failed to cooperate in the paynent [sic] of a note to Wachovia and the parties are now involved in a collection action in Superior Court of Guilford County. The Court finds that neither [Wife] nor [Husband] paid the Wachovia debt and that [Wife] paid significant other marital debts after the date of separation as well as paying the property taxes each and every year.
34. The Court finds that [Husband] is not entitled to a division of marital property which constitutes more than half the marital estate.
35. [Wife] contends that the following factors apply to support an unequal division on [WifeJ’s behalf:
(a) The income, property and liabilities of each party at the time the division of property is to be come [sic] effective: The Court finds that the [Husband] has received an inheritance since the separation of [Wife] and [Husband] which has significant value.
(b) The increased value of the real property since the date of separation: The Court finds that since the date of separation, the value of the real property has increased from $150,000 to between $165,000 and $170,000 and that said *205 increase will inure to the benefit of [Husband], and it is significant.
(c) The difficulty of evaluating any component asset: The Court finds that the [Wife] at her expense hired a real property appraiser, pension appraiser, and personal property appraiser which were of significant help to the Court in valuing the marital estate.
36. The Court finds that [Wife] is entitled to an unequal division and that she should receive $7,500 in addition to a distribution based on an equal division of the net marital estate.
37. In order to effectuate an equitable division of marital assets, it is appropriate that judgment enter against [Husband] in favor of [Wife] in the amount of $67,783.

The trial court then concluded that the 13.87-acre tract of land and the personal property of the parties was marital property and distributed the assets and debts among the parties in accordance with an unequal division. The 13.87-acre tract and the personal property were distributed to Husband. The court further concluded:

43. [Wife] is entitled to an unequal division and she should receive $7,500 in addition to a distribution based on an equal division of the net marital estate.
44.

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Cite This Page — Counsel Stack

Bluebook (online)
401 S.E.2d 784, 102 N.C. App. 199, 1991 N.C. App. LEXIS 289, Counsel Stack Legal Research, https://law.counselstack.com/opinion/atkins-v-atkins-ncctapp-1991.