Hill v. Hill

748 S.E.2d 352, 229 N.C. App. 511, 2013 WL 5183757, 2013 N.C. App. LEXIS 964
CourtCourt of Appeals of North Carolina
DecidedSeptember 17, 2013
DocketNo. COA12-1155
StatusPublished
Cited by17 cases

This text of 748 S.E.2d 352 (Hill v. Hill) 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
Hill v. Hill, 748 S.E.2d 352, 229 N.C. App. 511, 2013 WL 5183757, 2013 N.C. App. LEXIS 964 (N.C. Ct. App. 2013).

Opinion

STEELMAN, Judge.

The trial court erred in failing to classify property, in the valuation of property, and in considering a distributional factor that was based on an erroneous finding. Portions of the trial court’s order are vacated, and this matter is remanded to the trial court.

I. Factual and Procedural History

Charles Jeffrey Hill (plaintiff) and Dawn S. Hill (defendant) were married on 3 August 1996. Two children were bom of the marriage. The parties separated on 6 July 2009. On 18 August 2009 plaintiff filed a complaint seeking custody of the children and equitable distribution of marital property.

On 5 March 2012, the trial court filed its judgment on equitable distribution. The trial court recited the parties’ stipulations concerning five tracts of real estate that were marital property, and one tract that was the separate property of plaintiff. The stipulations did not encompass the values of the real estate, but did list the liens on each property, and the amounts of each lien. The parties also stipulated as to the locations and amounts of their retirement accounts. There were further stipulations as to items of personal property, the values of that property, and to which party the items should be distributed. The trial court cited a number of distributional factors, and determined that an unequal distribution of marital property to defendant was equitable. Two tracts of real estate were distributed to defendant. Four tracts of real estate were distributed to plaintiff. The bulk of the assets in retirement accounts were [514]*514distributed to defendant. Tangible personal property was distributed in accordance with the stipulations of the parties.

Plaintiff appeals.

II. Observations Concerning This Appeal

This case appears to embody all of the flaws that could possibly create an abominable appeal of an equitable distribution judgment. The defendant filed no brief. The hearings before the district court took place on 27 June 2011, 28 June 2011,1 July 2011, and 1 September 2011. As to the 1 July 2011 hearing, there is no transcript for that date, only a cursory narrative of plaintiffs testimony, which is written from plaintiff’s point of view. Defendant never objected to this narrative.

The transcripts of the remaining hearings were filed in paper and not electronically, as mandated by the provisions of Rule 7(b)(2) of the North Carolina Rules of Appellate Procedure. The transcripts reveal that the parties submitted in excess of 70 exhibits to the trial court, none of which were submitted to this Court pursuant to Rule 9(d) of the Rules of Appellate Procedure. However,- plaintiff freely makes references to the exhibits in his brief, without submitting them in an appendix to his brief or including them in a supplement to the record.

The order of the trial court combines evidentiary findings of fact, ultimate findings of fact, and conclusions of law, without any attempt to make them separate portions of the order. The brief of appellant is replete with inaccurate references to the record and transcript. In many instances there are no references to where the factual assertions are to be found in the record or transcript, in violation of Rule 28(e) of the Rules of Appellate Procedure.

While these rules violations are substantial, and come very close to meriting dismissal of the appeal, we conclude that this appeal should not be dismissed. See Dogwood Dev. & Mgmt. Co., LLC v. White Oak Transp. Co., Inc., 362 N.C. 191, 200, 657 S.E.2d 361, 366 (2008) (holding that “only in the most egregious instances of nonjurisdictional default will dismissal of the appeal be appropriate.”). However, the manner in which this appeal has been presented fundamentally hampers our review. The Court of Appeals sits as a reviewer of the actions of the trial court. In that role, we must be impartial to all parties. It is not our role to advocate for a party that has failed to file a brief, nor is it our role to supplement and expand upon poorly made arguments of a party filing a brief. “It is not the role of the appellate courts ... to create an appeal for an appellant.... [T]he Rules of Appellate Procedure must be consistently [515]*515applied; otherwise, the Rules become meaningless, and an appellee is left without notice of the basis upon which an appellate court might rule.” Abbott v. N. C. Bd. of Nursing, 177 N.C. App. 45, 48, 627 S.E.2d 482, 484-85 (2006) (citations omitted). We address only those issues which are clearly and understandably presented to us. On issues that require remand to the trial court, we will attempt to be clear and concise as to the perceived defect, and what the trial court needs to do upon remand to correct these defects.

We acknowledge that our trial courts are overworked and understaffed. However, it is ultimately the responsibility of the trial judge to insure that any judgment or order is properly drafted, and disposes of all issues presented to the court before the judge affixes his or her signature to the judgment or order. This is particularly true in a complex case, such as one involving the equitable distribution of marital property.

III. Standard of Review

Equitable distribution is vested in the discretion of the trial court and will not be disturbed absent a clear abuse of that discretion. Only a finding that the judgment was unsupported by reason and could not have been a result of competent inquiry, or a finding that the trial judge faded to comply with the statute, will establish an abuse of discretion.

Wiencek-Adams v. Adams, 331 N.C. 688, 691, 417 S.E.2d 449, 451 (1992) (citations omitted).

Although this is a “generous standard of review,” Robinson v. Robinson, 210 N.C. App. 319, 322, 707 S.E.2d 785, 789 (2011), the trial court must still comply with the requirements of N.C. Gen. Stat. § 50-20(c), which sets out a three step analysis:

First, the court must identify and classify all property as marital or separate based upon the evidence presented regarding the nature of the asset. Second, the court must determine the net value of the marital property as of the date of the parties’ separation, with net value being market value, if any, less the amount of any encumbrances. Third, the court must distribute the marital property in an equitable manner.

Smith v. Smith, 111 N.C. App. 460, 470, 433 S.E.2d 196, 202-03 (1993) (citations omitted), rev’d in part on other grounds, 336 N.C. 575, 444 S.E.2d 420 (1994).

[516]*516The first step of the equitable distribution process requires the trial court to classify all of the marital and divisible property — collectively termed distributable property- — in order that a reviewing court may reasonably determine whether the distribution ordered is equitable. In fact, to enter a proper equitable distribution judgment, the trial court must specifically and particularly classify and value all assets and debts maintained by the parties at the date of separation.

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Cite This Page — Counsel Stack

Bluebook (online)
748 S.E.2d 352, 229 N.C. App. 511, 2013 WL 5183757, 2013 N.C. App. LEXIS 964, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hill-v-hill-ncctapp-2013.