Ciobanu v. Ciobanu

409 S.E.2d 749, 104 N.C. App. 461, 1991 N.C. App. LEXIS 1067
CourtCourt of Appeals of North Carolina
DecidedNovember 5, 1991
Docket9110DC72
StatusPublished
Cited by48 cases

This text of 409 S.E.2d 749 (Ciobanu v. Ciobanu) 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
Ciobanu v. Ciobanu, 409 S.E.2d 749, 104 N.C. App. 461, 1991 N.C. App. LEXIS 1067 (N.C. Ct. App. 1991).

Opinion

GREENE, Judge.

Defendant appeals from an equitable distribution order which classified and distributed as marital property the post-marriage/pre-separation increased value of two pieces of defendant’s separate real property.

The plaintiff filed a complaint seeking, among other things, equitable distribution of the marital property. The order of equitable distribution contains the following relevant findings of fact and conclusions of law:

Findings of Fact
2. That the parties were lawfully married to each other on May 4, 1977; that the parties lived together as if man and wife for in excess of ten years immediately preceding their marriage.
3. That the Plaintiff and Defendant separated from each other on May 2, 1987; and that they were divorced from each other on May 18, 1988. . . .
7. That Defendant moved to Raleigh a few months before the Plaintiff joined him. During the interim months the Defendant bought a house and lot located at 7001 Leesville Road, Raleigh, North Carolina for $15,442.40 and then moved Plaintiff down to Raleigh. The parties were not married at the time. The property is titled in Defendant’s sole name and had an appraised value of $56,000.00 as of the date of separation with an outstanding loan balance of $8,000.00 for a net value of $48,000.00. The parties stipulated that the value of this property on the date of their marriage was $26,387.87. The value *463 of the property which accrued during the marriage was $21,612.13.
8. That Defendant bid upon and purchased a house and lot located at 2003 Glenwood Avenue from an estate for approximately $12,000.00 in 1970. The property was purchased while the parties were living together but not married. The property was titled in Defendant’s sole name. The value as of the date of separation was $82,000.00 with an outstanding mortgage of $5,200.00 for a net value of $76,800.00. The parties stipulated the value of said property on the date of their marriage was $26,284.19. The value of the property which accrued during the marriage was $50,515.81.
10. The parties lived in the ‘Leesville’ house continuously from its purchase and Plaintiff’s move to Raleigh until the date of separation. . . .
11.. The Glenwood house was purchased for investment and has been rented during most of the time it has been owned.
15. At the Glenwood property, the Plaintiff helped paint the garage (assisted by a young man hired with marital funds to help maintain the property), helped paint the inside and assisted in odd jobs by training the young man in methods of fixing and maintaining the property (e.g. fixing cracks in the walls).
17. Alt the Leesville property, Plaintiff did yard work, panelled the living room, painted inside, stained the woodwork inside and assisted Defendant in fitting trim on windows as well as general maintenance of the household.
18. Plaintiff had contacts with tenants at the Glenwood property and showed the house to prospective tenants a couple of times. She would call Defendant at work if something needed to be done immediately so that he could stop and attend to it after work. *464 24. Both parties performed household duties in the marital home, but Plaintiff was principally responsible for maintaining the household while Defendant pursued his career with IBM.
Conclusions of Law
4. That the property located at 7001 Leesville Road is marital property from May 4, 1977 to the date of separation on May 2, 1987 with a marital value of $21,612.13 which should be equally divided.
5. That the property located at 2003 Glenwood Avenue is marital property from May 4, 1977 to the date of Separation on May 2, 1987 with a marital value of $50,515.81 which should be equally divided.

Based upon these findings and conclusions, the trial court classified as marital property the post-marriage/pre-separation increased value of the Glenwood and Leesville properties and distributed one-half of the increase to the plaintiff.

The issue is whether the trial court’s findings of fact support its conclusions that the post-marriage/pre-separation increases in values to defendant’s separate real property are marital property.

In equitable distribution cases, N.C.G.S. § 50-20 (1987) requires the trial court to identify and classify all property as marital or separate. McIver v. McIver, 92 N.C. App. 116, 123-24, 374 S.E.2d 144, 149 (1988). In some instances, however, the property may have a dual character of both marital and separate, and in that event, the trial court’s classification must reflect this dual nature. Id. at 124, 374 S.E.2d at 150; Wade v. Wade, 72 N.C. App. 372, 381-82, 325 S.E.2d 260, 269, disc. rev. denied, 313 N.C. 612, 330 S.E.2d 616 (1985) (adopting “source of funds” theory of classification).

Under the source of funds analysis, the acquisition of property is an on-going process which “does not depend upon inception of title but upon monetary or other contributions made by one or both of the parties.” McLeod v. McLeod, 74 N.C. App. 144, 148, 327 S.E.2d 910, 913, cert. denied, 314 N.C. 331, 333 S.E.2d 488 (1985). Generally, property “acquired” by a party before marriage *465 remains that party’s separate property, McIver, 92 N.C. App. at 124, 374 S.E.2d at 149-50, and increases in value to such separate property are “acquired” by that separate estate but “only to the extent that the increases were passive . . . .” Lawing v. Lawing, 81 N.C. App. 159, 174, 344 S.E.2d 100, 111 (1986). Increases in value to separate property attributable to the financial, managerial, and other contributions of the marital estate are “acquired” by the marital estate. McIver, 92 N.C. App. at 124, 374 S.E.2d at 150; McLeod, 74 N.C. App. at 148, 327 S.E.2d at 913. When the increase in value to separate property is attributable to both the marital and separate estates, each estate is entitled to an interest in the “acquired” increase consistent with its contribution. Wade, 72 N.C. App. at 382, 325 S.E.2d at 269. Accordingly, the marital estate shares in the increase in value of separate property “it has proportionately ‘acquired’ in its own right” through financial, managerial, and other contributions, but does not share ■ in the increase in value of separate property acquired through passive appreciation, such as inflation. McLeod, 74 N.C. App. at 148, 327 S.E.2d at 913.

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Bluebook (online)
409 S.E.2d 749, 104 N.C. App. 461, 1991 N.C. App. LEXIS 1067, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ciobanu-v-ciobanu-ncctapp-1991.