Johnson v. Johnson

750 S.E.2d 25, 230 N.C. App. 280, 2013 WL 5911713, 2013 N.C. App. LEXIS 1160
CourtCourt of Appeals of North Carolina
DecidedNovember 5, 2013
DocketNo. COA12-977
StatusPublished
Cited by4 cases

This text of 750 S.E.2d 25 (Johnson v. Johnson) 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
Johnson v. Johnson, 750 S.E.2d 25, 230 N.C. App. 280, 2013 WL 5911713, 2013 N.C. App. LEXIS 1160 (N.C. Ct. App. 2013).

Opinion

STEELMAN, Judge.

Where plaintiff failed to produce credible evidence of the value of defendant’s pension at the time of separation, the trial court did not err in declining to value and distribute that pension as marital property. Where plaintiff received the marital home in an interim distribution order, any further payments on the home accrued to her benefit, and she was not entitled to a credit for these payments. Where plaintiff stipulated to the existence of a marital asset in the pre-trial order, and offered testimony as to the value of that asset at trial, plaintiff cannot on appeal complain of the lack of evidence to support the value of that asset.

I. Factual and Procedural Background

Dalila L. Johnson (plaintiff) and Steven B. Johnson (defendant) were married on 21 November 1991. They separated on 25 August 2009. There were two children of the marriage. On 4 September 2009, plaintiff filed a complaint, seeking custody of the children, child support, equitable distribution of marital property, alimony, post-separation support and attorney’s fees. On 22 October 2009, defendant filed an answer and a counterclaim for equitable distribution.

On 20 May 2010, the trial court entered an order awarding physical custody of one of the children to each of the parties, directing that defendant pay child support to plaintiff, along with post-separation support and attorney’s fees. Defendant was also ordered to make mortgage payments on the “Crumpler residence,” with these payments to be considered in the equitable distribution proceedings.

The equitable distribution hearing was conducted on 11 August 2011, and 7-8 November 2011. On 10 April 2012, the trial court entered its equitable distribution judgment. The judgment held that there was $143,653.98 in marital and divisible property. After concluding that an unequal distribution of the marital property would be equitable, it awarded sixty-seven percent (67%) of the marital property to plaintiff ($96,290.65) and thirty-three percent (33%) of the marital property to defendant ($47,363.33). The findings of the trial court relevant to this appeal were: (1) defendant’s military pension was not distributed because “there was insufficient credible evidence for the Court to value that item[;]” (2) plaintiff’s school retirement was not distributed because there was no evidence presented as to its value; (3) the marital residence was found to have increased in value in the amount of $12,000 from the date of separation until the date of the interim distribution to plaintiff; and (4) there was a debt owed to the parties by plaintiff’s brother in the [282]*282amount of $45,000, which was found to be a marital asset, and was distributed to plaintiff.

Plaintiff appeals.

II. 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 inquiiy, or a finding that the trial judge failed 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).

We have stated that “[t]he standard of review on appeal from a judgment entered after a non-jury trial is whether there is competent evidence to support the trial court’s findings of fact and whether the findings support the conclusions of law and ensuing judgment. The trial court’s findings of fact are binding on appeal as long as competent evidence supports them, despite the existence of evidence to the contrary.”

Peltzer v. Peltzer, _ N.C. App. _, _, 732 S.E.2d 357, 359, disc. review denied, 366 N.C. 417, 735 S.E.2d 186 (2012) (quoting Pegg v. Jones, 187 N.C. App. 355, 358, 653 S.E.2d 229, 231 (2007)).

III. Defendant’s Military Pension

In her first argument, plaintiff contends that the trial court erred in failing to distribute defendant’s military retirement. We disagree.

On 11 August 2011, the trial court entered an Amended Pre-Trial Equitable Distribution Order, with the consent of the parties and their respective counsel.1 Defendant’s military pension was shown on Schedule D to this order and was in a “list of marital property and debts upon which there is disagreement as to distribution and disagreement as to value.” Neither plaintiff nor defendant showed a value for defendant’s military pension on Schedule D.

[283]*283Plaintiff inserted the notation “213/264=41%” as her contention. Defendant made no contention concerning the pension. Schedule D also listed plaintiff’s school retirement. Plaintiff valued her retirement at $0, while defendant noted that its value was “[t]o be determined[.]”

In her listing of factors in favor of an unequal distribution of marital property, plaintiff asserted “[t]he expectation of pension, retirement, or deferred compensation rights that are not marital property: Husband’s ability to acquire substantially higher retirement amount.” Defendant’s listing of factors for an unequal distribution included “[t]he expectation of pension, retirement, or other deferred compensation rights that are not marital property.”

The only evidence at trial pertaining to defendant’s retirement was very limited testimony elicited from defendant. Upon cross-examination, defendant testified that he had been in the military for 24 years, that he was undecided on whether he would remain in the military, and that his retirement increased by a percentage for each year of service up to the thirtieth year. Defendant would be forced to retire from the military after thirty years of service. Upon further examination by his own counsel, defendant testified that he did not know when he would retire from the military, and that it could “be between anywhere from July of 2012 to August of 2017, at my forced retirement date. I do not know when in between.” Upon re-cross examination, the following exchange took place:

Q. Well, have you looked at what your retirement will be if you should retire in - did you say 2012?
A. Yes, I did.
Q. Did you look to see what your retirement would be each month if you retired in 2012?
A. I’ve looked at it, yes.
Q. And have you compared that to what your retirement will be if you wait until 2017?
A. I have.
Q. What’s the difference?
A. Roughly $1,600, give or take a couple of bucks.
Q. That’s quite a difference. How much would your retirement be each month if you retire next year, 2012?
[284]*284A. I don’t know a specific amount, but if you go back over my last three years of pay, average out each month’s payday as they do, I believe it will be somewhere around - I want to say $3,500 a month, give or take.

Defendant testified that this value might even be as high as $3,600.

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Cite This Page — Counsel Stack

Bluebook (online)
750 S.E.2d 25, 230 N.C. App. 280, 2013 WL 5911713, 2013 N.C. App. LEXIS 1160, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-v-johnson-ncctapp-2013.