Stiller v. Stiller

389 S.E.2d 619, 98 N.C. App. 80, 1990 N.C. App. LEXIS 295
CourtCourt of Appeals of North Carolina
DecidedApril 3, 1990
DocketNo. 8922DC538
StatusPublished
Cited by3 cases

This text of 389 S.E.2d 619 (Stiller v. Stiller) 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
Stiller v. Stiller, 389 S.E.2d 619, 98 N.C. App. 80, 1990 N.C. App. LEXIS 295 (N.C. Ct. App. 1990).

Opinion

EAGLES, Judge.

Plaintiff asserts various bases for her argument that the order of the trial court should be reversed. First, plaintiff argues that the trial court was unduly influenced by correspondence from defendant’s attorney after oral argument. Plaintiff also argues that the court erred in determining the value of defendant’s retirement benefits. Third, plaintiff argues that the trial court erred in failing to give her credit for the value of repairs she made to the marital home after the date of separation and the property taxes she paid on the marital home. Plaintiff’s fourth argument is that the court erred in its distribution of marital property and failed to support its distribution with sufficient findings of fact. Plaintiff also argues that the trial court erred in assigning marital debts to her that were not supported by sufficient findings of fact. Finally, plaintiff asserts that the trial court failed to make sufficient findings of fact to support its order and judgment. We agree with plaintiff’s argument regarding the values the court placed on the parties’ vested pension benefits. However, we disagree with plaintiff’s other arguments. Therefore, we reverse and remand for re-evaluation of the parties’ pension benefits.

Plaintiff’s first argument is that the correspondence between defendant’s counsel and the trial court unduly influenced the court in favor of defendant. Plaintiff argues that defendant’s counsel [83]*83violated various Rules of Professional Conduct in sending letters to the trial court after the hearing was completed. We find no merit in plaintiff’s argument. The letters concern plaintiffs lack of timely response to the trial court’s instructions and defendant’s objections to plaintiff’s proposed order of distribution. Defendant’s counsel always sent copies of his letters to opposing counsel. Although the letters arguably may contain remarks and references that were not absolutely necessary to carry out the court’s business, plaintiff has failed to show that these remarks resulted in “undue influence” on the trial court. Additionally, we note that if plaintiff feels that defendant’s counsel has violated a Rule of Professional Conduct the appropriate forum for that inquiry is the State Bar.

Plaintiff’s second argument is that the trial court erred in failing to place a value on defendant’s vested retirement benefits. The trial court found that it was

unable to make a finding of fact as to the present worth of future expected benefits based upon the evidence presented by the plaintiff. Consequently, the court bases its valuation of retirement benefits on present value and finds as a fact that the plaintiff’s vested retirement at Davie County Hospital is valued at $13,951.18 and the value of the defendant’s vested retirement at Ingersoll-Rand Company is $.00.

It is clear from the record that the court determined the value of the retirement benefits by using the “withdrawal value” of the parties’ vested pensions. Defendant’s employer submitted an affidavit to the effect that defendant could not withdraw any sum from his retirement plan prior, to retiring. The trial court also used the “withdrawal value” of plaintiff’s pension to arrive at its value. We find that the trial court erred in using the “withdrawal value” to determine the respective values of the parties’ vested retirement benefits.

G.S. 50-20(b)(l) provides, in pertinent part, that “[mjarital property includes all vested pension, retirement, and other deferred compensation rights. . . .” Our Supreme Court has stated that “both present value and fixed percentage are permissible methods of evaluating pension and retirement benefits in arriving at an equitable distribution of marital property.” Seifert v. Seifert, 319 N.C. 367, 371, 354 S.E.2d 506, 509, reh’g denied, 319 N.C. 678, 356 S.E.2d 790 (1987). We have found no reported case in this jurisdiction where a court has used the “withdrawal value” to deter[84]*84mine the value of vested pension and retirement benefits in an equitable distribution action. We decline to accept this valuation method where, as here, the pension plan does not allow early withdrawal of accumulated monies. We note that there was evidence that defendant’s “accrued monthly benefit,” calculated as of 1 December 1986, was $312.00. A value of $.00 placed on defendant’s right to receive this money in the future does not “reasonably approximate[ ] the net value of the [defendant’s] interest.” Poore v. Poore, 75 N.C. App. 414, 419, 331 S.E.2d 266, 270, disc. rev. denied, 314 N.C. 543, 335 S.E.2d 316 (1985).

Defendant argues that, even if the trial court erred in using the “withdrawal value” of the pensions, plaintiff is not prejudiced by the error because both parties’ pensions were evaluated using the same method. The facts are to be found by the trial court and we decline to speculate as to the value, determined by either a present value method or fixed percentage of future payments method, of the parties’ respective pension and retirement benefits. Therefore, we cannot say plaintiff suffered no prejudice by this error.

Plaintiff’s third argument is that the trial court erred in failing to credit her with the value of repairs made to the marital home and payment of property taxes, both paid and coming due after the date of separation. Plaintiff also argues that the trial court erroneously used these payments made by plaintiff as an “offset” against the fair rental value of the house during the period of separation. The basis of plaintiff’s argument is finding of fact #9 where the court stated

any taxes, insurance, repairs and maintenance on the marital home from and after the separation paid for by the plaintiff would be more than offset by the fair rental value of the house which the plaintiff gained the benefit of, and that any repairs to the house that increased its value occurred after the stipulation of value between the parties hereto and consequently the plaintiff would retain the benefit of it by the distribution of the house to her in kind.

Plaintiff argues that this finding effectively awarded to the defendant the fair rental value of the house which is prohibited by Black v. Black, 94 N.C. App. 220, 379 S.E.2d 879 (1989). We are unpersuaded by plaintiff’s argument. In Black this court reiterated that “a trial court may not award rental value of the marital residence for the post-separation period as a part of the equitable distribution [85]*85proceeding.” Id. at 221-22, 379 S.E. 2d at 880. In Becker v. Becker, 88 N.C. App. 606, 364 S.E.2d 175 (1988), this court stated that the trial court could consider as a distribution factor exclusive use of the marital home by one party during the period of separation while that party maintained the home and paid taxes and insurance. Here the trial court’s finding related to its conclusion that an equal distribution would be equitable. We find no error.

Plaintiff also argues that the trial court erred in its distribution of marital property and that it failed to support its conclusions with sufficient findings of fact. Plaintiff argues that the equal distribution in this case is not equitable.

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Bluebook (online)
389 S.E.2d 619, 98 N.C. App. 80, 1990 N.C. App. LEXIS 295, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stiller-v-stiller-ncctapp-1990.