Foxx v. Foxx

• Court: Court of Appeals of North Carolina
• Decided: April 5, 2022
• Docket: 21-346
• Status: Published

Opinion

IN THE COURT OF APPEALS OF NORTH CAROLINA

2022-NCCOA-223

No. COA21-346

Filed 5 April 2022

Catawba County, No. 16 CVD 1496

FRANCES SIGMON FOXX, Plaintiff,

v.

GARY DWAYNE FOXX, Defendant.

Appeal by defendant from Order entered 16 March 2021 by Judge Sherri W.

Elliott in Catawba County District Court. Heard in the Court of Appeals 11 January

2022.

LeCroy Law Firm, PLLC, by M. Alan LeCroy, for plaintiff-appellee.

Wesley E. Starnes for defendant-appellant.

GORE, Judge.

¶1 Defendant, Gary Dwayne Foxx, appeals from the trial court’s Equitable

Distribution Order, modifying the percentage of distribution of marital assets

following the first appeal to this Court. We vacate the Order and remand for further

findings of fact. FOXX V. FOXX

Opinion of the Court

I. Factual and Procedural Background

¶2 Frances Sigmon Foxx (“plaintiff”) and defendant were married on 17 March

1995. In 1999, the parties formed Foxx Appraisals, Inc., primarily used for plaintiff’s

real estate appraisal business. In March 2011, defendant was injured while in the

course of his employment for the City of Lincolnton. Defendant filed worker’s

compensation and personal injury claims following his injury. Plaintiff and defendant

separated on 14 July 2014. Shortly after the parties separated, defendant settled his

workers’ compensation claim. A few months thereafter, he settled his personal injury

claim. Once in 2014 and once in 2015, Foxx Appraisals, Inc. made distributions as

payment to plaintiff for her work as a licensed appraiser for the company.

¶3 On 16 June 2016, plaintiff filed a complaint for divorce and equitable

distribution. Plaintiff and defendant were granted absolute divorce on 15 September

2016. On 4 January 2018, the trial court entered an Equitable Distribution Order

(“2018 Order”). Plaintiff and defendant subsequently appealed the 2018 Order. This

Court vacated the 2018 Order on the grounds that (1) the trial court’s findings ignored

undisputed evidence of two post-separation distributions from Foxx Appraisals, Inc.,

to the plaintiff, and (2) the trial court applied an incorrect legal standard to the

classification of the awards from the defendant’s workers’ compensation and personal

2 FOXX V. FOXX

injury lawsuits. Foxx v. Foxx, 266 N.C. App. 617, __, 830 S.E.2d 700, __ (2019)

(unpublished).

¶4 This Court gave the trial court discretion to hear additional evidence, but the

trial court elected to not conduct any further proceedings and issued a Remanded

Equitable Distribution Order on 19 February 2021. On 25 February 2021, the trial

court granted a Rule 60 Motion filed by the plaintiff to correct a clerical error in the

19 February 2021 Remanded Equitable Distribution Order. On 16 March 2021, the

trial court entered an Amended Equitable Distribution Order (“2021 Order”). The

trial court modified the percentage of equitable distribution of martial and divisible

assets between the parties from the 2018 Order to the 2021 Order, increasing

plaintiff’s share from sixty percent to seventy-five percent and decreasing defendant’s

share from forty percent to twenty-five percent. Defendant timely filed and served

notice of appeal.

II. Analysis

A. Modification of the Percentage of Equitable Distribution

¶5 Defendant first contends that the trial court lacked the authority to modify the

unequal percent distribution of marital assets between the parties following the first

appeal because the issue was not raised. We disagree.

3 FOXX V. FOXX

¶6 “[A]s a general rule when an appellate court passes on a question and remands

the cause for further proceedings, the questions there settled become the law of the

case, both in subsequent proceedings in the trial court and on subsequent appeal . . .

.” Hayes v. Wilmington, 243 N.C. 525, 536, 91 S.E.2d 673, 681-82 (1956) (citations

omitted). “[O]nce a panel of the Court of Appeals has decided a question in a given

case that decision becomes the law of the case and governs other panels which may

thereafter consider the case.” Carpenter v. Carpenter, 245 N.C. App. 1, 8, 781 S.E.2d

828, 835 (2016) (quoting North Carolina Nat’l Bank v. Virginia Carolina Builders,

307 N.C. 563, 567, 299 S.E.2d 629, 631-32 (1983)); see also Transp., Inc. v. Strick

Corp., 286 N.C. 235, 239, 210 S.E.2d 181, 183 (1974).

In North Carolina courts, the law of the case applies only to issues that were decided in the former proceeding, whether explicitly or by necessary implication, but not to questions which might have been decided but were not. The doctrine of the law of the case contemplates only such points as are actually presented and necessarily involved in determining the case.

Wetherington v. NC Dep’t of Pub. Safety, 270 N.C. App. 161, 173, 840 S.E.2d 812, 822

(2020) (cleaned up).

¶7 “On the remand of a case after appeal, the mandate of the reviewing court is

binding on the lower court, and must be strictly followed, without variation and

departure from the mandate of the appellate court.” Bodie v. Bodie, 239 N.C. App. 4 FOXX V. FOXX

281, 284, 768 S.E.2d 879, 881 (2015) (quoting Collins v. Simms, 257 N.C. 1, 11, 125

S.E.2d 298, 306 (1962)). This Court vacated and remanded the matter “for the trial

court to make additional findings of fact and, if appropriate, corresponding

conclusions of law.” Foxx, 266 N.C. App. at __, 830 S.E.2d at __. When this Court

remands an equitable distribution order for more specific findings of fact, that

remand authorizes the trial court to recalculate related portions of the order that are

impacted by the findings made on remand if necessary. See Bodie, 239 N.C. App. at

285, 768 S.E.2d at 882.

¶8 In the case sub judice, the issue of percent distribution of marital property was

not a question raised on appeal, nor was it discussed or otherwise adjudicated, either

explicitly or implicitly by the prior panel of this Court. Thus, it did not become the

law of the case. Moreover, on remand, the trial court was required to evaluate specific

evidence and make findings of fact that would affect the corresponding conclusion of

law regarding the net value of marital assets. Therefore, the trial court had the

authority to reconsider the percentage of distribution.

B. Required Sufficient Findings of Fact

¶9 Defendant next argues that the trial court erred by failing to make additional

findings of fact to support the change of equitable distribution percentage from the

2018 Order to the 2021 Order. We agree. 5 FOXX V. FOXX

¶ 10 We review the trial court’s distribution of property for an abuse of discretion.

Carpenter, 245 N.C. App. at 13, 781 S.E.2d at 838 (2016) (citations and quotations

omitted); see also White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985).

The standard of review on the trial court’s classification in an equitable distribution of property is well settled: when the trial court sits without a jury, the standard of review on appeal is whether there was competent evidence to support the trial court’s findings of fact and whether its conclusions of law were proper in light of such facts.

Carpenter, 245 N.C. App. at 11, 781 S.E.2d at 837 (cleaned up). “A trial court may be

reversed for abuse of discretion only upon a showing that its actions are manifestly

unsupported by reason.” White, 312 N.C. at 777, 324 S.E.2d at 833.

¶ 11 There are twelve factors for the trial court to consider when determining

whether unequal distribution of marital property and divisible property is equitable.

See N.C. Gen. Stat. § 50-20(c) (2021). “[I]f evidence is presented as to several statutory

factors, the trial court must make findings as to each factor for which evidence was

presented.” Rosario v. Rosario, 139 N.C. App. 258, 261, 533 S.E.2d 274, 276 (2000)

(citations omitted). “The weight given each factor, however, is within the discretion

of the trial court, and the trial court is not required to specifically state the weight

given each factor to ‘support the determination’ an equitable distribution has been

made.” Friend-Novorska v. Novorska, 143 N.C. App. 387, 395, 545 S.E.2d 788, 794

6 FOXX V. FOXX

(2001) (quoting White, 312 N.C. at 777-78, 324 S.E.2d at 833). “Additionally, the

weight given each factor by the trial court must be upheld on appeal absent a showing

of abuse of discretion.” Id. (citation omitted). “[A] finding stating that the trial court

has merely given ‘due regard’ to the section 50-20 factors is insufficient as a matter

of law.” Rosario, 139 N.C. App. at 262, 533 S.E.2d at 276 (2000) (citations omitted).

¶ 12 “Findings of fact are sufficient to ‘support the determination’ an equitable

division has been made when findings of fact have been made on the ultimate facts

at issue in the case, and the findings of fact show the trial court properly applied the

law in the case.” Friend-Novorska, 143 N.C. App. at 395, 545 S.E.2d at 794 (quoting

Armstrong v. Armstrong, 322 N.C. 396, 405-06, 368 S.E.2d 595, 600 (1988)). “The

purpose for the requirement of specific findings of fact that support the court’s

conclusion of law is to permit the appellate court on review ‘to determine from the

record whether the judgment – and the legal conclusions that underlie it – represent

a correct application of the law.’” Patton v. Patton, 318 N.C. 404, 406, 348 S.E.2d 593,

595 (1986) (quoting Coble v. Coble, 300 N.C. 708, 712, 268 S.E.2d 185, 189 (1980)).

See also Armstrong, 322 N.C. at 405, 368 S.E.2d at 600.

¶ 13 In the instant case, the trial court did not conduct any further proceedings on

remand before filing the 2021 Order. Using the evidence in the existing record, which

the trial court was permitted to do in its discretion from this Court’s prior opinion, 7 FOXX V. FOXX

the trial court found the required specific findings of fact regarding Foxx Appraisal,

Inc.’s distributions to the plaintiff and the defendant’s lawsuit awards. These

required findings by the trial court support a modification of the net value of marital

property and the trial court found as such. The trial court also added an additional

finding of fact regarding a section 50-20(c) factor in the 2021 Order. However, this

finding amounted to a base assertion that the statutorily required factor was merely

considered.

¶ 14 The trial court is not required to state the weight it gives to each factor it

considers. Rosario, 139 N.C. App. at 260, 533 S.E.2d at 275. However, the trial court

must support its determination by a measure greater than due regard, and in such

fashion that an appellate court can determine from the record and judgment derived

from legal conclusions that the correct application of law has been represented. See

Rosario, 139 N.C. App. at 262, 533 S.E.2d at 276 (2000); Friend-Novorska, 143 N.C.

App. at 395, 545 S.E.2d at 794; Armstrong, 322 N.C. at 405-06, 368 S.E.2d at 600.

¶ 15 In the case sub judice, the trial court did not hold additional proceedings on

remand and modified the percent distribution of marital assets without considering

additional evidence. In addition, one of the factors for consideration of an unequal

distribution under N.C. Gen. Stat. Ann. § 50-20 is “[t]he income, property, and

liabilities of each party at the time the division of property is to become effective.” 8 FOXX V. FOXX

N.C. Gen. Stat. Ann. § 50-20. Since the most recent evidence was from the hearing

before the entry of the 2018 order, the trial court could not address the “income,

property, and liabilities” of the parties “at the time the division of property is to

become effective.” Thus, the findings of fact and evidence in the record do not justify

a modification from the 2018 Order’s percent distribution of marital assets because

the evidence in the record for the trial court to consider between the orders remained

the same and nothing in the 2021 Order justified a reweighing of the percent

distribution of marital assets based on the same material evidence. Therefore, the

trial court did not make sufficient findings of fact to justify its conclusion that the

modification of the percentage of distribution of marital assets between the 2018

Order and the 2021 Order was proper.

III. Conclusion

¶ 16 For the foregoing reasons, we vacate the trial court’s 16 March 2021 Amended

Equitable Distribution Order and remand for further proceedings and entry of a new

order. If either party requests the opportunity to present additional evidence for

consideration prior to entry of the new order, the trial court shall allow the parties to

present additional evidence limited to any relevant changes in circumstances which

9 FOXX V. FOXX

may affect an unequal distribution under N.C. Gen. Stat. Ann. § 50-20 since the last

evidentiary hearing.

VACATED AND REMANDED.

Chief Judge STROUD and Judge TYSON concur.