Hendricks v. Hendricks

386 S.E.2d 84, 96 N.C. App. 462, 1989 N.C. App. LEXIS 1019
CourtCourt of Appeals of North Carolina
DecidedDecember 5, 1989
Docket8930DC450
StatusPublished
Cited by10 cases

This text of 386 S.E.2d 84 (Hendricks v. Hendricks) 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
Hendricks v. Hendricks, 386 S.E.2d 84, 96 N.C. App. 462, 1989 N.C. App. LEXIS 1019 (N.C. Ct. App. 1989).

Opinion

LEWIS, Judge.

It should be noted at the outset that the division of marital property is a matter within the sound discretion of the trial court, and its judgment should not be disturbed on review unless it is shown that the decision made was a clear abuse of discretion. Johnson v. Johnson, 78 N.C. App. 787, 790, 338 S.E.2d 567, 569 (1986). G.S. 50-20 requires an equitable division of the marital property.

Plaintiff has made eleven assignments of error all relating to the trial court’s determination that an unequal division of the marital property was equitable. Under G.S. 50-20(c), an equal division is mandatory absent a determination that it would not be equitable. Bradley v. Bradley, 78 N.C. App. 150, 151, 336 S.E.2d 658, 659 (1985). The burden is upon the party seeking an unequal division of the marital property to prove by a preponderance of the evidence that an equal division would not be equitable. Patton v. Patton, 78 N.C. App. 247, 256, 337 S.E.2d 607, 613 (1985), rev’d in part on other grounds, 318 N.C. 404, 348 S.E.2d 593 (1986). G.S. 50-20(c) enumerates twelve factors the court must consider when dividing the marital property. A single factor is sufficient, if supported by the evidence, to uphold an unequal distribution. Andrews v. Andrews, 79 N.C. App. 228, 235, 338 S.E.2d 809, 814, cert. denied, 316 N.C. 730, 345 S.E.2d 385 (1986).

I

Plaintiff first argues that there is insufficient evidence to support the trial court’s Findings of Fact numbers 3-5 that the defendant should occupy the marital home and own its effects. The court below listed the following findings of fact as determinative of its decision to award the marital home and its furnishings to the defendant:

3. During the separation of the parties the two (2) minor children of the parties lived in this marital home and because this marital home was deemed to be important to the welfare and security of the children, the Court allowed the children *465 to remain in the home during the period of separation, moving the Plaintiff in for a period and then moving the Defendant in for a period but allowing the children to remain in the home.
4. The marital home of the parties is located near the school which the younger child attends and it is in the best interests of the children to reside in that marital home.
5. Defendant has custody of the two (2) minor children of the parties and Defendant needs to occupy and own the marital residence and to use and own its household effects, to provide a home for the minor children of the parties.
6. While there is evidence that there were marital debts owed by the parties at the date of their separation (a matter which this Court will deal with in this Judgment), the evidence before the Court tends to show that the major portion of those debts has now been paid.
7. Plaintiff is employed at Champion Papers, Inc. in Canton, North Carolina, where he earns $15.44 per hour. In 1986 he earned $40,000.00 from his employment at Champion Papers, Inc. but now Defendant has reduced the number of hours he works, a reduction which he has himself caused to be made, and his annual earnings at Champion Papers, Inc. are $32,115.20. In addition, Plaintiff is a member of the National Guard and from this membership he receives $165.00 each month plus $700.00 for summer camp for a total of $2,680.00 each year. Plaintiff has been employed by Champion Papers, Inc. for approximately fourteen (14) years and his employment appears to be stable and established.
8. Defendant has recently been employed by the Health Department of Haywood County. During the marriage of the parties and prior to their separation, Defendant attended Western Carolina University where she obtained her Nursing Degree. Although Plaintiff contends that he paid tuition, transportation, and provided books for a portion of this period, Defendant’s father paid some tuition and provided some further assistance and it appears to the Court that the Defendant cared for her family and provided for the children while she attended this schooling.
9. From her employment at Haywood County Health Department, Defendant presently earns Twenty Thousand *466 Eight Hundred ($20,800.00) Dollars each year which is paid in equal bi-weekly payments.
10. While Plaintiff is paying some child support to Defendant pursuant to Order of the Court in another action, Defendant is supporting herself, has voluntarily relinquished any right to receive any support from Plaintiff and is contributing to the support of the two (2) children of the parties.
11. Though both parties appear to be in good physical and mental health, this marriage had a duration of more than 14 years prior to the separation of the parties, and during that period Defendant cared for the home, provided for the children, and continues to care for the children in the home.

We find that the trial court’s findings are supported by the evidence and are sufficient to support the court’s award of the marital home to the defendant. In Patterson v. Patterson, 81 N.C. App. 255, 343 S.E.2d 595 (1986), we found that the trial court’s award of the marital residence to the defendant was justified based upon the trial court’s findings that defendant had sole custody of the child. “[T]his factor alone justifies the unequal distribution of marital property. . . .” 81 N.C. App. 260, 343 S.E.2d at 599. Like Patterson, the defendant has custody of her two sons. Furthermore, testimony at the equitable distribution hearing showed that the sons lived in the home for most of their lives, remained there while the parties were separated, and attended schools very nearby. These factors alone justify the award of the marital residence to the defendant. Additionally, G.S. 50-20(c)(4) allows the trial court to consider the need of the parent with custody of the child or children to occupy the marital residence. The trial court made findings that the defendant’s income was significantly less than the plaintiff’s income. This disparity supports an award of the marital home to the defendant because the defendant would have greater difficulty finding and affording comparable housing for herself and the children. Disparity of the income of the parties could itself justify a disproportionate award. G.S. 50-20(c)(l).

Plaintiff’s assignments of error as to findings of fact numbers 1, 10 and 12 are without merit. He contends that these findings are unsupported by the evidence and are irrelevant. We disagree. G.S.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Bass v. Bass
683 S.E.2d 466 (Court of Appeals of North Carolina, 2009)
Brackney v. Brackney
682 S.E.2d 401 (Court of Appeals of North Carolina, 2009)
Hoots v. Hoots
674 S.E.2d 480 (Court of Appeals of North Carolina, 2009)
Walter v. Walter
561 S.E.2d 571 (Court of Appeals of North Carolina, 2002)
Khajanchi v. Khajanchi
537 S.E.2d 845 (Court of Appeals of North Carolina, 2000)
Wall v. Wall
536 S.E.2d 647 (Court of Appeals of North Carolina, 2000)
Conway v. Conway
508 S.E.2d 812 (Court of Appeals of North Carolina, 1998)
Smith v. Smith
433 S.E.2d 196 (Court of Appeals of North Carolina, 1993)
Edwards v. Edwards
428 S.E.2d 834 (Court of Appeals of North Carolina, 1993)

Cite This Page — Counsel Stack

Bluebook (online)
386 S.E.2d 84, 96 N.C. App. 462, 1989 N.C. App. LEXIS 1019, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hendricks-v-hendricks-ncctapp-1989.