Spence v. Jones

348 S.E.2d 819, 83 N.C. App. 8, 1986 N.C. App. LEXIS 2639
CourtCourt of Appeals of North Carolina
DecidedOctober 7, 1986
Docket8612DC210
StatusPublished
Cited by9 cases

This text of 348 S.E.2d 819 (Spence v. Jones) 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
Spence v. Jones, 348 S.E.2d 819, 83 N.C. App. 8, 1986 N.C. App. LEXIS 2639 (N.C. Ct. App. 1986).

Opinion

JOHNSON, Judge.

In defendant’s first Assignment of Error she contends that the court erred in denying defendant’s motion for a continuance. We do not agree.

Rule 40(b), N. C. Rules Civ. P., states, in pertinent part, “A continuance may be granted only for good cause shown and upon such terms and conditions as justice may require.” “The motion must state the grounds therefor and must show good cause for the requested continuance.” W. Shuford, N.C. Civil Practice and Procedure sec. 40-4 (2d ed. 1981). Continuances are addressed to the sound discretion of trial judges. Shankle v. Shankle, 289 N.C. 473, 483, 223 S.E. 2d 380, 386 (1976). Continuances are not to be favored, Piedmont Wagon Co. v. Bostic, 118 N.C. 758, 24 S.E. 525 (1896), and are not reviewable absent a manifest abuse of discretion, State v. Williams, 51 N.C. App. 613, 616, 277 S.E. 2d 546, 547-48 (1981).

Here, defendant moved for a continuance in open court on the morning of 24 September 1985 when the matter was scheduled to be heard. Defendant presented the following grounds for a *10 continuance: (1) based upon a discussion with the court and plaintiffs counsel the prior day, defendant was of the understanding that the hearing at issue was limited to a pre-trial conference and had been informed only that morning that the trial was set for that day and (2) defendant needed until the next week to obtain certain information vital to her cause, to wit: information from Russ Davenport regarding the joint Merrill Lynch account, plaintiffs retirement rights, and the cash value of a $100,000.00 life insurance policy on plaintiffs life.

The court did not deny defendant’s motion until it had explored the matter and ascertained the surrounding facts and circumstances as follows: the case had been removed from the calendar on four or five other occasions; plaintiff was present and ready to proceed; plaintiff, a commercial pilot, objected to rescheduling the hearing to the following week due to conflicts with his flight schedule; both parties had completed discovery; Russ Davenport, a stockbroker for Merrill Lynch, was present in court and could confer with defendant’s counsel before the trial actually began and could testify at trial on defendant’s direct examination regarding the parties’ joint account at Merrill Lynch; the parties had stipulated that on the previous day, 23 September 1985, that plaintiffs retirement fund had no equity. The hearing did not begin until 4:00 p.m. and went into the following day, giving defendant most of that day and evening to prepare for what the court noted was not a complex case. At trial, plaintiff testified that the life insurance policy at issue was a term policy having no cash value. Clearly the court’s denial of defendant’s request for a continuance under these circumstances was not an abuse of discretion. This Assignment of Error is overruled.

Defendant combines six Assignments of Error in her next argument, wherein she alleges that the court erred in excluding as not relevant testimony regarding various financial transactions by plaintiff prior to the parties’ 11 May 1983 date of separation. After the court sustained plaintiffs objections, defendant offered, inter alia, the following evidence: that the parties’ marital difficulties began the summer of 1981; that the parties received a $737.50 payment of interest on a municipal bond on 3 January 1983; that plaintiff withdrew $2,000.00 from the parties’ joint ready asset account with Merrill Lynch on 11 January 1983, representing the $737.50 bond interest and $1,263.00 in ready asset *11 trust money; that plaintiff withdrew $500.00 from that same account on 10 February 1983; that plaintiff withdrew $850.00 from that account on 28 March 1983; that the difference between the parties’ combined salaries between December 1982 through 11 May 1983, the date of separation, and the family’s expenses of $2,068.99 per month equaled $12,981.01; that plaintiff withdrew a total of $6,500.00 from the parties’ joint checking account between September 1981 through December 1981 and a total of $18,308.60 from that same joint checking account during 1982. All of this evidence came from the testimony of defendant and Russ Davenport of Merrill Lynch. Defendant stated to the court that she was offering the evidence for the purpose of establishing that plaintiff had dissipated marital assets in anticipation of separating. The court would not admit this evidence regarding marital funds, stating, “[T]he court will not consider any transfer of funds in an ordinary course of business before the separation on May the 11th, 1983” and “fault cannot be used . . . in an equitable distribution.”

The record reveals that the court was working under a misapprehension of the law. The general rule is “marital fault or misconduct of the parties which is not related to the economic condition of the marriage is not germane to a division of marital property under [G.S.] 50-20(c) and should not be considered.” Smith v. Smith, 314 N.C. 80, 87, 331 S.E. 2d 682, 687 (1985). However, fault which is related to the economic condition of the marriage may be considered. Fault or misconduct “which dissipates or reduces marital property for nonmarital purposes” is “ ‘just and proper’ under N.C.G.S. sec. 50-20(c)(12).” Id. at 88, 331 S.E. 2d at 687.

An offer of proof must be specific and must indicate what the excluded evidence would have been. Currence v. Hardin, 296 N.C. 95, 249 S.E. 2d 387 (1978). Defendant contends that the offer of evidence showed that plaintiff “withdrew some $30,850.00 from joint assets for unexplained reasons.” We find defendant’s offer insufficient to show actual dissipation in anticipation of separation. “[AJbsent clear and convincing evidence to the contrary, creation of a spousal joint account should as a matter of law imply consent by each spouse to use by the other of funds from the account for purposes of sustaining the family or enhancing its standard of living.” McClure v. McClure, 64 N.C. App. 318, 323, 307 *12 S.E. 2d 212, 215 (1983), disc. rev. denied, 310 N.C. 308, 312 S.E. 2d 651 (1984). “Such consent is thus implied from her volitional creation of, and deposit of funds to, the joint account.” Id. Here, defendant agreed to the creation of the joint account; she deposited her salary to the joint account. Defendant offered no evidence to show that plaintiff made non-marital use of funds. Defendant merely showed that the funds withdrawn exceeded the expenses of the family. Defendant admitted that the expenses excluded many items, such as costs for “any clothes, car gas, shoes, or anything — grooming or any of those items.” Further evidence showed that defendant had equal access to the funds and that the record of withdrawals failed to indicate who of the two parties made a particular withdrawal on a given date.

In conclusion, defendant did not offer clear and convincing evidence that plaintiff alone withdrew the funds without defendant’s consent and used the funds for purposes other than sustaining the family. Her offer of proof was insufficient to overcome the presumption that she consented to plaintiffs withdrawals or that plaintiff dissipated the marital assets prior to separation. This Assignment of Error is overruled.

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Cite This Page — Counsel Stack

Bluebook (online)
348 S.E.2d 819, 83 N.C. App. 8, 1986 N.C. App. LEXIS 2639, Counsel Stack Legal Research, https://law.counselstack.com/opinion/spence-v-jones-ncctapp-1986.