Britt v. Britt

606 S.E.2d 910, 168 N.C. App. 198, 2005 N.C. App. LEXIS 170
CourtCourt of Appeals of North Carolina
DecidedJanuary 18, 2005
DocketCOA04-381
StatusPublished
Cited by14 cases

This text of 606 S.E.2d 910 (Britt v. Britt) 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
Britt v. Britt, 606 S.E.2d 910, 168 N.C. App. 198, 2005 N.C. App. LEXIS 170 (N.C. Ct. App. 2005).

Opinion

LEVINSON, Judge.

Plaintiff Yvonne Britt (now Shanks) appeals from an equitable distribution order granting an unequal division of the parties’ marital property to defendant Thomas Britt and from the denial of her motion seeking relief from the equitable distribution order and a new trial. We affirm.

The parties married on 8 November 1997, separated on 15 March 1999, and were divorced by judgment entered 24 May 2000. An equitable distribution hearing was held on 19 February 2002. The evidence at the hearing tended to show the following: Prior to the mar *200 riage of the parties, Mr. Britt purchased two adjacent lots in the Salt Marsh Cove Subdivision for $30,000. During the marriage of the parties, Mr. Britt conveyed this property to himself and Mrs. Shanks. The parties subsequently purchased a mobile home for approximately $65,000 which they placed on the property. In addition, the parties purchased a garage for $6,261, and paid $32,066.57 for a carport, porch, concrete wall, permits and landscaping of the property. The sum of the expenditures for the property, the home, and related improvements was approximately $134,000.

In 1999, Mr. Britt made an early withdrawal from his IRA account in the amount of $64,000. He used approximately eighty percent of this money to satisfy marital debt incurred in purchasing the mobile home. The withdrawal was subject to an early withdrawal penalty and taxation. In December 2000, Mrs. Shanks conveyed the Salt Marsh Cove Lots and the mobile home to a third party in consideration for $110,000 by a private sale exclusive of a real estate broker or advertisement.

The marital residence was the most substantial item of marital property. Mrs. Shanks testified that the fair market value of the marital residence was between $94,000 and $98,000 and its tax value as of the date of separation was $101,700. Mr. Britt contended, and the trial court found, that the fair market value of the marital residence, including improvements, was $130,000 as of the date of separation. The trial court also determined that the marital estate included a Dodge truck, a Mitsubishi 3000 GT automobile, and miscellaneous items valued at $1000.

As of the date of the hearing, Mrs. Shanks was fifty-one years old and was earning $4,300 per month as the Director of Human Services for the City of Sanford. Mr. Britt was sixty-six years old and retired. He testified that he had hypertension and also required knee replacement surgery. Mr. Britt further testified that he was unable to work due to his knee problems but that he received a Social Security check in the amount of $1032.00 per month.

On 25 June 2003, approximately sixteen months after the equitable distribution hearing, the trial court entered its equitable distribution order. The court determined that an equal distribution of the property would not be equitable and awarded Mr. Britt a fifty-five percent share of the parties’ marital property Mrs. Shanks was ordered to pay Mr. Britt a distributive award of $39,750, in three equal annual installments, to effect the distribution.

*201 On 7 July 2003, Mrs. Shanks filed a motion alleging, inter alia, that the entry of the equitable distribution order sixteen months after the equitable distribution hearing entitled her to have the order set aside and a new trial conducted pursuant to N.C.G.S. §§ 1A-1, Rules 59(a)(9) and 60(b)(4). Mrs. Shanks did not make any argument to the trial court that either the value of the marital property or the parties’ respective conditions had changed. The trial court denied Mrs. Shanks’ motion.

Mrs. Shanks now appeals, contending that the trial court erred by (1) entering the equitable distribution order sixteen months after the equitable distribution hearing, (2) denying her motion to set aside the late-entered order and grant a new trial, and (3) awarding Mr. Britt an unequal distribution of the marital estate where such an award is contrary to the evidence presented and unsupported by sufficient findings of fact. For the reasons that follow, the trial court’s equitable distribution order and the order denying Mrs. Shanks’ motion to set aside the equitable distribution judgment and for a new trial are affirmed.

We first address Mrs. Shanks’ argument that the trial court erred by entering the equitable distribution order sixteen months after the equitable distribution hearing. According to Mrs. Shanks, entry of the order after the long delay violated this Court’s decision in Wall v. Wall, 140 N.C. App. 303, 313-14, 536 S.E.2d 647, 654 (2000). We are not persuaded.

In Wall, this Court held that, on the facts of that case, a nineteen-month delay between the date of trial and the date of disposition constituted more than “a de minimis delay, and require[d] that the trial court enter a new distribution order on remand.” Id. at 314, 536 S.E.2d at 654. Given the nature of the property involved in the case and the extensive delay, this Court required “the trial court [to] allow the parties to offer additional evidence as to any substantial changes in their respective conditions or post-trial changes, if any, in the value of items of marital property.” Id. Specifically, on remand, the trial court was to

reconsider the evidence of the increase in value of the husband’s profit-sharing plan following separation, treating such increase as a distributional factor, . . . reconsider the evidence offered by the husband on the state of his health, make appropriate findings about the evidence, and give it appropriate weight in making a *202 new distribution decisionf, and] give the parties an opportunity to offer evidence on the changes, if any, in value of the marital property since the trial. . . .

Id. The remainder of the equitable distribution order was affirmed. Id.

We observe that Wall establishes a case-by-case inquiry as opposed to a bright line rule for determining whether the length of a delay is prejudicial. See id.] Suzanne Reynolds, 3 Lee’s North Carolina Family Law § 12.114 (5th ed. rev. 2002). Indeed, since Wall, this Court has declined to reverse late-entered equitable distribution orders where the facts have revealed that the complaining party was not prejudiced by the delay. See, e.g., White v. Davis, 163 N.C. App. 21, 26, 592 S.E.2d 265, 269 (holding that delay of seven months between hearing and entry of equitable distribution order was not prejudicial), disc. review denied, 358 N.C. 739, 603 S.E.2d 127 (2004).

In the present case, the challenged equitable distribution order was entered sixteen months after the hearing. Though Mrs. Shanks contends that this Court’s decision in Wall requires a reversal of the untimely order, she has made no argument that the circumstances that counseled in favor of reversing the order in Wall are present in the case sub judice.

In Wall,

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Cite This Page — Counsel Stack

Bluebook (online)
606 S.E.2d 910, 168 N.C. App. 198, 2005 N.C. App. LEXIS 170, Counsel Stack Legal Research, https://law.counselstack.com/opinion/britt-v-britt-ncctapp-2005.