Capps v. Capps

318 S.E.2d 346, 69 N.C. App. 755, 1984 N.C. App. LEXIS 3593

• Court: Court of Appeals of North Carolina
• Decided: August 7, 1984
• Docket: 8328DC795
• Status: Published

Opinion

PHILLIPS, Judge.

The trial court’s failure to equitably distribute the marital property of the parties requires the vacation of the permanent alimony and child support order appealed from and the return of this matter to the Buncombe County District Court for further proceedings in compliance with the Equitable Distribution Act. Under that Act, when a party to a divorce action seeks equitable distribution, the trial judge is required to accomplish it upon the divorce being entered. G.S. 50-20(f) provides:

The court shall provide for an equitable distribution without regard to alimony for either party or support of the children of both parties. After the determination of an equitable distribution, the court, upon request of either party, shall consider whether an order for alimony or child support should be modified or vacated pursuant to G.S. 50-16.9 or 50-13.7.

G.S. 50-21(a), in pertinent part, provides:

Upon application of a party to an action for divorce, an equitable distribution of property shall follow a decree of absolute divorce.

The mandate could not be clearer or less equivocal. Equitable distribution, when properly demanded, must be granted upon the divorce decree being entered; and if alimony and child support has not been previously awarded, equitable distribution must be made first; but if alimony or child support has already been awarded, the awards must be reconsidered upon request after the marital property has been equitably distributed. This order of events is required, no doubt, because of the obvious relationship that exists between the property that one has and his or her need for support and the ability to furnish it.

The court’s failure to accomplish equitable distribution may have been due to its impression that the marital property was being distributed between the parties by mutual written agreement, which our law still permits either “[bjefore, during or after marriage.” G.S. 50-20(d). But the consent judgment supposed to accomplish distribution merely recites that:

1. That all of the property owned by the Plaintiff and the Defendant is equally owned by both parties, with the exception of the automobiles, and the Plaintiff shall have the Buick automobile which is in his possession and the Defendant shall have the automobile that is in her possession.

Except for the two automobiles referred to, this agreement and judgment did not accomplish a distribution of the property that the parties owned; which, according to the record, includes three other automobiles, a four bedroom home worth about $75,000, various articles of household furniture and equipment, and some jewelry and guns. It merely established that the properties just referred to are owned equally by the parties. Whereas, to equitably distribute property, as the Act makes plain, it is necessary to at least (1) identify the property owned; (2) evaluate it; and (3) order its distribution. The identification and evaluation of their property can readily be completed by the court from the evidence now before it; but the distribution of it has not yet been attempted. In making the mandated distribution it will, of course, be necessary for the court to consider the matters and make the findings required by the Act. And after that is done, the plaintiffs needs for alimony and child support and the defendant’s ability to pay them will have to be re-evaluated as the Act requires.

Vacated and remanded.

Judges Hedrick and Arnold concur.