King v. King

434 S.E.2d 669, 112 N.C. App. 92, 1993 N.C. App. LEXIS 1012
CourtCourt of Appeals of North Carolina
DecidedSeptember 21, 1993
DocketNo. 9210DC950
StatusPublished
Cited by1 cases

This text of 434 S.E.2d 669 (King v. King) 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
King v. King, 434 S.E.2d 669, 112 N.C. App. 92, 1993 N.C. App. LEXIS 1012 (N.C. Ct. App. 1993).

Opinion

LEWIS, Judge.

Plaintiff and defendant were married in September 1973, and lived together as husband and wife until their separation in August 1988. On 7 November 1989 plaintiff filed a complaint against defendant seeking an absolute divorce and equitable distribution. After a trial on 6 and 8 November 1990, and closing arguments on 6 [93]*93January 1992, the trial court entered an Equitable Distribution Judgment on 8 June 1992. Plaintiff now appeals, alleging the court erred in its classification of certain stock as entirely marital property. Plaintiff claims the stock in his family company, the Garland C. Norris Company (hereafter “GCN”), should have been classified as part marital and part separate property.

Plaintiff’s maternal grandfather, Garland C. Norris, founded GCN, and owned and managed it until he died in 1980. While alive he expressed his wish that the company remain a family company, to be managed first by his son-in-law, plaintiffs father, and then his grandchildren. In his will Mr. Norris directed that the company stock be placed in trust with his two daughters as the initial beneficiaries, and his grandchildren as the ultimate beneficiaries. Plaintiff’s father was appointed trustee and assumed management of the business upon the death of Mr. Norris.

In the spring of 1982 plaintiff’s father decided to involve two of his sons, plaintiff and his brother, in the management of the business. As part of this process, GCN was dissolved and a new company was created, also called the Garland C. Norris Company. The new GCN acquired all the liabilities and assets, trade name and good will of the old GCN in exchange for a $908,000 promissory note, which was placed in the above-mentioned trust. Plaintiff and his brother each received 24,000 shares of voting common stock, and their father received 52,000 shares of preferred nonvoting stock, thereby maintaining complete control of the company.

The acquisition of these shares of stock by plaintiff, his father and his brother, was financed through a loan from plaintiff’s mother, using money from the trust income. Plaintiff and his brother each received $24,000, and plaintiff’s father received $52,000. Plaintiff paid the money to GCN in exchange for the stock, and gave his mother a promissory note for $24,000 plus 12 percent annual interest.

Using his earnings from GCN, plaintiff began paying off the note, and by 1 June 1987 the balance due had been reduced to $16,200. On 19 June 1987 plaintiff’s father gave him $10,000 to use specifically to pay his mother to reduce his indebtedness on the note. Plaintiff gave the money to his mother and thereby reduced the debt to $6,200. The promissory note was reissued for that amount, and plaintiff continued to make payments. From June 1987 to January 1988 the company was restructured for tax purposes into a subchapter “S” corporation, and plaintiff’s father gave [94]*94up his stock to plaintiff and plaintiff’s brother, but maintained control of the company through a voting trust agreement.

In February 1988 plaintiff’s mother forgave the remaining indebtedness of both plaintiff and his brother. The accompanying note to plaintiff contained the notation, “Happy birthday.” Testimony from plaintiff’s mother and father indicated this action was intended to give plaintiff and his brother an ownership interest in the company free from debt and the need to use earnings to pay off that debt.

In its Equitable Distribution Judgment the trial court ruled that plaintiff received “absolute ownership of the stock free and clear of any encumbrances” on 24 June 1982. The court found that “[f]or Equitable Distribution purposes [the $24,000] loan was a marital debt because it was procured for the benefit of the marital estate,” and “regardless of the intent of the donor, the effect of [the transfer of $10,000 to plaintiff from his father] between Plaintiff and Defendant was to reduce the amount of marital indebtedness.” The court also found that “[t]he funds used by Plaintiff to make this payment [to his mother] were gifted to the Plaintiff by his father. . . . Regardless of the intent of the donor, the effect of this transaction as between Plaintiff and Defendant was to reduce the amount of marital indebtedness.” The court noted that “[o]n February 19, 1988 Plaintiff’s mother forgave the remaining amount due ... on the note from Plaintiff to his mother,” but did not comment on the effect of this transaction. In its distribution of the marital property the trial court awarded plaintiff all of the GCN stock, valued at $413,000.

On appeal plaintiff argues the court erred in classifying the stock as entirely marital property. Instead of viewing the stock as acquired on the day it was paid for with the borrowed money, plaintiff argues the court should look to how that debt was paid off over time. Plaintiff agrees that the portion of the debt paid for with money earned “during the pendency of the marriage” is a marital asset. However, according to plaintiff, those portions of the debt paid for with his separate money should translate into a corresponding degree of separate ownership in the stock. Plaintiff argues that the amount of stock acquired “through the generosity of his parents in forgiving the debt were gifts” and therefore his separate property.

Defendant contends that the payment from plaintiff’s father to plaintiff was a gift to the marital estate, arguing that no evidence [95]*95indicated otherwise. Defendant argues the issue is whether or not plaintiff intended the $10,000 he received from his father to be a gift from plaintiff to the marital estate. According to defendant, the payment of this money to plaintiff’s mother was a payment from the marital money for a marital debt. Defendant also relies on the lack of any evidence in the record indicating that plaintiff’s mother did not intend a gift to the marital estate when she forgave the remaining balance of the debt. Finally, defendant points out that the trial court treated the acquisition of the stock and assumption of the debt as two separate transactions. Plaintiff paid for the stock in full at the outset. According to defendant, “[t]he fact that Plaintiff also agreed to undertake some debt in this family owned business does not mean as a matter of law that this Court or that the trial court must deal with the debt and stock indistinguishably.”

At the outset we note that the Record on appeal does not include a complete copy of the judgment rendered by the trial court. The court’s Equitable Distribution Judgment begins on page 70 of the Record and ends on page 86, in the middle of a sentence. Only the first 17 pages of the trial court’s decision are presented for our review. According to Rule 9 of the North Carolina Rules of Appellate Procedure, the Record on appeal should include a copy of the judgment from which the appeal is taken. N.C.R. App. Proc. 9(a)(l)h. (1993). We note, however, that that portion of the judgment relevant to the issues raised on this appeal are included in the Record, specifically on pages 78 and 79. Thus, we have decided the issues according to the information contained in the Record before us. We do not find that this omission constitutes a substantial failure to comply with the appellate rules in this case, and therefore decline to impose sanctions. N.C.R. App. Proc. 25(b) (1993).

In an equitable distribution proceeding the trial judge must classify all property, assets and liabilities of the parties existing on the date of separation as either separate or marital. McLean v. McLean, 323 N.C.

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Cite This Page — Counsel Stack

Bluebook (online)
434 S.E.2d 669, 112 N.C. App. 92, 1993 N.C. App. LEXIS 1012, Counsel Stack Legal Research, https://law.counselstack.com/opinion/king-v-king-ncctapp-1993.