Smith v. Smith

444 S.E.2d 420, 336 N.C. 575, 1994 N.C. LEXIS 293
Supreme Court of North Carolina·Decided June 17, 1994·No. 388A93·Published·Cited by 37 cases

Opinion

*576 FRYE, Justice.

In this appeal based solely on the issue raised by the dissenting opinion in the Court of Appeals, defendant contends that the Court of Appeals erred in holding that it was not essential for the trial court to characterize as active or passive the increase in the post-separation value of marital assets in this equitable distribution case. We agree. Accordingly, we reverse that portion of the Court of Appeals’ decision and remand for further proceedings.

The circumstances giving rise to this case are as follows: Plaintiff and defendant were married on 6 June 1972, separated 24 June 1988, and granted an absolute divorce on 5 February 1990. An equitable distribution trial was conducted during several non-jury civil terms of District Court, Mecklenburg County in November and December of 1990. On 5 April 1991, a Judgment of Equitable Distribution was entered.

The judgment shows that the trial court determined the net value of the marital property as of the date of separation to be $44,183,807; that an equal division of the marital property was not equitable; and that an unequal division awarding defendant sixty-nine percent (69%) and plaintiff thirty-one percent (31%) of the net value of the marital property was equitable. The court divided the marital property in accordance with the parties’ stipulations and preferences and granted to plaintiff her share of the marital estate primarily in the form of a distributive award. The court determined that plaintiff was entitled to a distributive award in the amount of $13,696,980, which is thirty-one percent of $44,183,807 minus the total of the proceeds in two bank accounts awarded her. The court further found that defendant was entitled to credits totaling $575,268 for certain post-separation expenditures made by him, including his expenditure of funds to purchase a residence for plaintiff. These deductions reduced the amount of plaintiff’s distributive award to $13,115,461.

The trial court then calculated the post-separation appreciation/ depreciation in the value of each item of marital property and determined that there was a net overall appreciation in the value of the marital estate of $6,546,805. The trial court proceeded to award plaintiff thirty-one percent of that net increase, or an additional $2,029,509. Plaintiff thus received an equitable distribution judgment of $15,151,220, payable in a lump sum of $2,144,971 on *577 or before 14 June 1991 and monthly installments in the amount of $157,725 per month for ten years, with the first payment being due on or before 1 July 1991.

Both plaintiff and defendant appealed to the Court of Appeals. The trial court, on motion of defendant, granted a stay of its judgment pending the outcome of appeal. The Court of Appeals affirmed that part of the trial judgment addressing the classification and valuation of property. It found reversible error in the trial court’s failure to consider defendant’s receipt of dividend income of $240,162 after the date of separation as a factor in determining an equitable distribution. The Court of Appeals further found reversible error in the trial court’s calculation and treatment of the post-separation appreciation of the marital property, including the credit given defendant for his discharge of the second mortgage on the marital home. Thus, the Court of Appeals vacated that part of the judgment addressing distribution of the marital property and remanded the cáse to the trial court for redetermination of what constitutes an equitable distribution of the marital property and entry of a new judgment consistent with its opinion. This portion of the Court of Appeals’ decision is not before us and thus stands undisturbed.

The Court of Appeals also held, with Judge Greene dissenting, that the trial court was not required to specifically characterize as active or passive the increase in the post-separation value of marital assets. As to this issue only, we now reverse.

This issue appears to be one of first impression for this Court. No specific authority exists which requires the trial court to make specialized findings with regard to post-separation appreciation. However, both our statutory scheme and case law are instructive on this issue and require resolution of it in favor of defendant’s position.

N.C.G.S. § 50-20 sets forth the procedure for the distribution of marital property upon divorce. N.C.G.S. § 50-20(c) provides that

there shall be an equal division by using net value of marital property unless the court determines that an equal division is not equitable. If the court determines that an equal division is not equitable, the court shall divide the marital property equitably. Factors the court shall consider under this subsection are as follows:
*578 (11a) Acts of either party to maintain, preserve, develop, or expand; or to waste, neglect, devalue or convert such marital property, during the period after separation of the parties and before the time of-the distribution; and
(12) Any other factor which the court finds to be just and proper.

N.C.G.S. § 50-20(c) (1993).

“Marital property is to be valued as of the date of the parties’ separation. G.S. 50-21(b). This valuation date is used to determine the equitable distribution share of each party.” Mishler v. Mishler, 90 N.C. App. 72, 77, 367 S.E.2d 385, 388, disc. rev. denied, 323 N.C. 174, 373 S.E.2d 111 (1988). “The post-separation appreciation of marital property is itself neither marital nor separate property. Such appreciation must instead be treated as a distributional factor under Section 50-20(c)(lla) or (12) . . . .” Truesdale v. Truesdale, 89 N.C. App. 445, 448, 366 S.E.2d 512, 514 (1988).

Rather than distributing the sums representing the [post-separation] appreciation, the trial court must consider the existence of this appreciation, determine to whose benefit the increase in value will accrue, and then consider that benefit when determining whether an equal or unequal distribution of the marital estate would be equitable.

Gum v. Gum, 107 N.C. App. 734, 738, 421 S.E.2d 788, 790 (1992). Thus, there is plenary statutory and case law support for the proposition that the post-separation appreciation of marital assets must be considered by the court when making an equitable distribution.

This Court has stated in White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985), that “the legislature . . . clearly intended to vest trial courts with discretion in distributing marital property under N.C.G.S. 50-20, but guided always by the public policy expressed therein favoring an equal division.” The trial court, however, must make written findings of fact that support the determination that marital property has been equitably divided. N.C.G.S. § 50-20(j) (1993).

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Smith v. Smith, 444 S.E.2d 420, 336 N.C. 575, 1994 N.C. LEXIS 293 (N.C. 1994).

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