Mrozek v. Mrozek

496 S.E.2d 836, 129 N.C. App. 43, 1998 N.C. App. LEXIS 354
CourtCourt of Appeals of North Carolina
DecidedMarch 17, 1998
DocketCOA97-315
StatusPublished
Cited by19 cases

This text of 496 S.E.2d 836 (Mrozek v. Mrozek) 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
Mrozek v. Mrozek, 496 S.E.2d 836, 129 N.C. App. 43, 1998 N.C. App. LEXIS 354 (N.C. Ct. App. 1998).

Opinions

EAGLES, Judge.

We first consider whether the trial court erred in finding that the marital debt owed to defendant’s parents had no value as of the date of separation because it was not legally enforceable because of the running of the statute of limitations period with no payments and no acknowledgment of the debt. In an equitable distribution action “the trial court is required to classify, value and distribute, if marital, the debts of the parties to the marriage.” Miller v. Miller, 97 N.C. App. 77, 79, 387 S.E.2d 181, 183 (1990) (citing Byrd v. Owens, 86 N.C. App. 418, 424, 358 S.E.2d 102, 106 (1987)). Plaintiff argues that in determining the value of a marital debt, consideration of its legal enforceability is essential. Defendant contends that the court was without jurisdiction to make a determination as to the enforceability of the promissory note. Defendant argues that the defense of statute of limitations is an affirmative defense available only by answer and can only be raised against the holder of the promissory note and could not be pled against the defendant. Accordingly, defendant contends that once the debt was found by the trial court to be a marital debt it should have been distributed in the judgment. After careful consideration of the record, briefs and contentions of both parties, we reverse.

The promissory note at issue here was not under seal and was subject to a three year statute of limitations. G.S. 1-52(1). The note does not state a fixed date or definite time of payment and is therefore payable on demand. G.S. 25-3-108. “The statute of limitations on an action on a promissory note payable on demand begins to run from the date of the execution of the note.” Wells v. Barefoot, 55 N.C. App. 562, 566, 286 S.E.2d 625, 627 (1982) (citations omitted). No payment had been made on the note. Accordingly, the statute of limitations began to run when the note was executed on 28 October 1986.

The running of the statute of limitations, however, does not extinguish a debt, but instead provides a defense to its collection. See Citizens Ass’n for Reasonable Growth of Washington, N. C. v. City of Washington, 45 N.C. App. 7, 12, 262 S.E.2d 343, 346, cert. denied, 300 N.C. 195, 269 S.E.2d 622 (1980). Indeed, a debtor’s failure to assert the statute of limitations constitutes a waiver of that defense. Miller v. Talton, 112 N.C. App. 484, 487, 435 S.E.2d 793, 796 (1993).

[47]*47In this case, the trial court found the note representing a loan from defendant’s parents to be a marital debt. The trial court further found as fact that defendant “acknowledged that he owed the money due under the terms of the promissory note and he was obligated to pay his mother under the terms of the promissory note,” and defendant’s mother “expected repayment.” On this record, therefore, there is no evidence that defendant intends to assert a statute of limitations defense to the collection of the debt; the unequivocal inference is that he would not do so. Accordingly, the debt was enforceable and the trial court erred in ruling otherwise. Because there is no dispute as to the amount due on the debt at the time of separation, $45,961.48, on remand the debt must again be similarly valued.

Plaintiff additionally argues that “ ‘loans from close family members must be closely scrutinized for legitimacy.’ ” Geer v. Geer, 84 N.C. App. 471, 475, 353 S.E.2d 427, 430 (1987) (quoting Allen v. Allen, 287 N.C. 501, 507, 339 S.E.2d 872, 876 (1986). However, any concerns the trial court may have with respect to the fact that this marital debt is owed to defendant’s parents or that defendant is the sole signatory and may have an affirmative defense to repayment are more properly treated as distributional factors. See G.S. 50-20(c)(12) (requiring the trial court to consider “[a]ny other factor which the court finds to be just and pfoper” in making an equitable distribution). Accordingly, the order of the trial court is reversed and remanded for the valuing of this debt and the entry of a new distributional order.

We next consider whether the trial court erred in its finding concerning the fair market value of the marital residence. Defendant claims that the trial court abused its discretion in valuing the marital home as of the date of separation, 31 May 1994, at $199,700.00 because there was evidence that the value of the marital home at separation was $245,000.00 and $250,000.00 at the time of trial. Defendant argues that plaintiff secured a loan in May 1996 based on an appraisal value of $250,000.00, and that plaintiff would not have made application for a loan of $225,000.00 on 19 April 1996 unless plaintiff believed that the property had a value of $250,000.00. Defendant also argues that insurance coverage on the house was and had been $248,000.00 and that this coverage had been specified by the insurance company, not by the parties. Accordingly, defendant contends that with this evidence before the court it was an abuse of discretion for the trial court to find that the value of the residence at separation was $199,700.00. We note that the loan was obtained two years after separation, five months after the hearing and the month [48]*48before judgment was signed. We also note that plaintiffs lender chose the appraiser and that defendant’s witness at the hearing was the lender’s choice. We are not persuaded that the trial court abused its discretion in valuing the marital residence as of the date of separation, two years earlier.

In Lawing v. Lawing, 81 N.C. App. 159, 344 S.E.2d 100 (1986) we stated that:

The General Assembly has committed the distribution of marital property to the discretion of the trial courts, and the exercise of that discretion will not be disturbed in the absence of clear abuse. Accordingly, the trial court’s rulings in equitable distribution cases receive great deference and may be upset only if they are so arbitrary that they could not have been the result of a reasoned decision. The trial court’s findings of fact, on which its exercise of discretion rests, are conclusive if supported by any competent evidence. The mere existence of conflicting evidence or discrepancies in evidence will not justify reversal.

Id. at 162, 344 S.E.2d at 104 (citations omitted). The trial court found that the plaintiff’s witness, Jack Coleman, had “extensive experience in real estate appraisals, including, but not limited to teaching ... and that he qualifies as a good expert with regard to the valuation of the real property and his testimony was helpful ... on the issue of the value of the subject real property.” The court acted well within its discretion in choosing Mr. Coleman’s separation date appraisal figure of $199,700.00. Accordingly, this assignment of error is overruled.

We next consider whether the trial court erred in failing to award interest on the distributive award.

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Mrozek v. Mrozek
496 S.E.2d 836 (Court of Appeals of North Carolina, 1998)

Cite This Page — Counsel Stack

Bluebook (online)
496 S.E.2d 836, 129 N.C. App. 43, 1998 N.C. App. LEXIS 354, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mrozek-v-mrozek-ncctapp-1998.