Dusenberry v. Dusenberry

Court of Appeals of North Carolina

Dusenberry v. Dusenberry

326 S.E.2d 65, 73 N.C. App. 177, 1985 N.C. App. LEXIS 3186

CourtCourt of Appeals of North Carolina

DecidedFebruary 19, 1985

Docket8415DC636

StatusPublished

This text of 326 S.E.2d 65 (Dusenberry v. Dusenberry) 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

Dusenberry v. Dusenberry, 326 S.E.2d 65, 73 N.C. App. 177, 1985 N.C. App. LEXIS 3186 (N.C. Ct. App. 1985).

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Opinion

WHICHARD, Judge.

This is an equitable distribution action pursuant to G.S. 50-20, 21, in which the court concluded as a matter of law that an equal division of the marital property was not equitable. It did so based in part upon findings that defendant-wife “began having an adulterous affair . . . and began neglecting the plaintiff and their three minor children” and that this conduct “was a major reason for the break-up of this marriage . . . and . . . was the only serious and significant mistreatment of either party by the other party during the course of this marriage.” It concluded that con *178 sideration of “the relative fault of the parties leading to the disintegration of their marriage . . . [was] just and proper.”

Subsequent to entry of this order, this Court held that fault is not a relevant or appropriate consideration in determining an equitable distribution of marital property. Hinton v. Hinton, 70 N.C. App. 665, 321 S.E. 2d 161 (1984); see also Wade v. Wade, 72 N.C. App. 372, 325 S.E. 2d 260 (1985); Smith v. Smith, 71 N.C. App. 242, 322 S.E. 2d 393 (1984). The award here is clearly grounded upon fault-based findings regarding an adulterous affair on the part of defendant-wife. Because the court considered this irrelevant and inappropriate matter in awarding the marital property, the order must be vacated and the cause remanded for a new order based solely upon relevant and appropriate findings.

Vacated and remanded.

Judges WELLS and BECTON concur.

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WHICHARD, Judge.

This is an equitable distribution action pursuant to G.S. 50-20, 21, in which the court concluded as a matter of law that an equal division of the marital property was not equitable. It did so based in part upon findings that defendant-wife “began having an adulterous affair . . . and began neglecting the plaintiff and their three minor children” and that this conduct “was a major reason for the break-up of this marriage . . . and . . . was the only serious and significant mistreatment of either party by the other party during the course of this marriage.” It concluded that con *178 sideration of “the relative fault of the parties leading to the disintegration of their marriage . . . [was] just and proper.”

Subsequent to entry of this order, this Court held that fault is not a relevant or appropriate consideration in determining an equitable distribution of marital property. Hinton v. Hinton, 70 N.C. App. 665, 321 S.E. 2d 161 (1984); see also Wade v. Wade, 72 N.C. App. 372, 325 S.E. 2d 260 (1985); Smith v. Smith, 71 N.C. App. 242, 322 S.E. 2d 393 (1984). The award here is clearly grounded upon fault-based findings regarding an adulterous affair on the part of defendant-wife. Because the court considered this irrelevant and inappropriate matter in awarding the marital property, the order must be vacated and the cause remanded for a new order based solely upon relevant and appropriate findings.

Vacated and remanded.

Judges WELLS and BECTON concur.

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Bluebook (online)

326 S.E.2d 65, 73 N.C. App. 177, 1985 N.C. App. LEXIS 3186, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dusenberry-v-dusenberry-ncctapp-1985.

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