Ubertaccio v. Ubertaccio

588 S.E.2d 905, 161 N.C. App. 352, 2003 N.C. App. LEXIS 2197

• Court: Court of Appeals of North Carolina
• Decided: December 2, 2003
• Docket: No. COA02-1531
• Status: Published

Opinions

TYSON, Judge.

Christine Janice Ubertaccio (“plaintiff’) appeals from an equitable distribution judgment filed 25 June 2002. The court required plaintiff to pay defendant fifty-five percent (55%) of the proceeds from the sale of stock she had received from her employer. We affirm.

I. Background

Plaintiff and defendant were married on 3 October 1981, separated on 29 January 2000, and divorced on 19 May 2001. The parties are the parents of two children. Plaintiff filed a complaint seeking equitable distribution of the marital and divisible property on 25 April 2000. Defendant filed an answer and counterclaim also seeking an equitable division of the marital and divisible property. The parties signed an equitable distribution pretrial order on 10 April 2001 and subsequently reached an agreement allocating many of the marital assets. The parties did not resolve the classification, valuation, and distribution of stock that plaintiff had received from her employer.

Prior to the parties’ separation on 29 January 2000, plaintiff entered into an employment agreement on 10 December 1999, with ASA Corporation (“ASA”), a “spin-off division” from her former employer, Lucent Technologies, Inc. (“Lucent”). As part of the consideration of the employment agreement, plaintiff was eligible to receive 10,000 shares of ASA stock during the year 2000. She received 3,000 shares of ASA stock on 31 May 2000, and the remaining 7,000 shares on 18 July 2000. ASA’s Stock Program Plan stated that the plan administrator “may” require employees to execute a covenant not to compete in order for an employee to receive greater than or equal to 8,000 shares. Plaintiff signed the covenant on 1 September 2000. Subsequently, AON Corporation (“AON”) purchased ASA and plaintiff obtained 4,298 shares of AON stock in exchange for her ASA stock.

The tax basis of the ASA common stock at conversion was $16,438.62. The fair market value of the AON stock at conversion was $39.19 per share, or $168,483.62. Plaintiff incurred tax liability in the year 2000 on the gain of $152,000.00. AON withheld 1,954 shares for payment of taxes and issued a stock certificate for 2,344 shares on 2 November 2000. Shortly thereafter, plaintiff sold her 2,344 shares and received net proceeds of $82,637.00.

The trial court’s judgment: (1) found the entire net proceeds from the sale of stock to be divisible and, in the alternative, marital; (2) awarded defendant an unequal distribution of fifty-five percent (55%); and (3) required plaintiff to pay defendant fifty-five percent (55%) of the proceeds from the sale of the stock. Plaintiff appealed.

II. Issues

Plaintiff asserts the trial court erred by: (1) classifying the stock and proceeds received from the sale as divisible, and in the alternative, marital property; (2) failing to apply a coverture formula in valuing the stock for equitable distribution; and (3) failing to make sufficient findings of fact regarding employment, grant, vesting, and maturity dates, as well as the impact of the covenant not to compete.

III. Classification of the Stock

Plaintiff assigns error to the trial court’s conclusion that the stock and proceeds therefrom were divisible property and, in the alternative, marital property. The trial court must classify, value, and distribute marital property and divisible property in equitable distribution actions. Fountain v. Fountain, 148 N.C. App. 329, 332, 559 S.E.2d 25, 29 (2002). Our statutes define “marital property” as “all real and personal property acquired by either spouse or both spouses during the course of the marriage and before the date of the separation of the parties, and presently owned. . . . Marital property includes all vested and nonvested pensions, retirement, and other deferred compensation rights.” N.C. Gen. Stat. § 50-20(b)(1) (2001).

“Divisible property” includes:

[a]ll property, property rights, or any portion thereof received after the date of separation but before the date of distribution that was acquired as a result of the efforts of either spouse during the marriage and before the date of separation, including, but not limited to, commissions, bonuses, and contractual rights.

N.C. Gen. Stat. § 50-20(b)(4)(b) (2001).

“Separate property” is defined as “all real and personal property acquired by a spouse before marriage or acquired by a spouse by bequest, devise, descent, or gift during the course of the marriage.” N.C. Gen. Stat. § 50-20(b)(2) (2001).

The party claiming that property is marital has the burden of proving by a preponderance of the evidence that the property was acquired, by either or both spouses, during the marriage and before the date of separation, and is presently owned. Lilly v. Lilly, 107 N.C. App. 484, 486, 420 S.E.2d 492, 493 (1992). Once this burden is met, “the burden shifts to the party claiming the property to be separate to show by a preponderance of the evidence that the property meets the definition of separate property.” Id.

Our Court has held that stock options are similar to retirement benefits:

stock options are a salary substitute or a deferred compensation benefit and if received during the marriage and before the date of separation and acquired as a result of the efforts of either spouse during the marriage and before the date of separation, stock options are properly classified as marital property, even if they cannot be exercised until a date after the parties divorce.

Fountain, 148 N.C. App. at 337, 559 S.E.2d at 32. Stock rights are properly classified as divisible property if acquired as a result of a spouse’s efforts during the marriage but not received until after the date of separation and before the date of distribution. Id. Stock rights are neither marital nor divisible if “received during the marriage before the date of distribution,” but “not in consideration for services rendered during the marriage and before the date of separation.” Id. at 338, 559 S.E.2d at 32.

Plaintiff argues that the stock rights were neither granted, vested, nor matured as of the date of separation. Pursuant to her employment agreement, plaintiff was required to successfully complete her evaluation period before she received stock on 31 May 2000, and 18 July 2000. Both dates occurred several months after the parties’ date of separation. ASA’s Stock Program Plan stated that “[t]he Plan Administrator mav require the Participant to execute a Covenant Not To Compete in order to receive a grant . . . greater than or equal to 8000 Units.” (emphasis supplied). Plaintiff contends that her covenant not to compete indicates the shares were received after the marriage ended and not in consideration for services rendered during the marriage.

Defendant contends that plaintiffs employment and stock were acquired as a result of plaintiffs experience and efforts during the twenty-year marriage and before the date of separation. Plaintiffs employment agreement, dated 10 December 1999, clearly states, “If you are still an employee in good standing with ASA, and assuming a January start date, you will be eligible to receive a stock grant in 2000 of 10,000 shares.”

Although plaintiffs shares of stock did not vest until after the date of separation, her employment agreement, executed during the marriage, created her right to those shares. It is uncontested that plaintiff signed the employment agreement in December, 1999 and began working with ASA in January, 2000 while married to defendant and prior to the parties’ date of separation. Plaintiff’s entitlement to receive those shares of stock arose during the existence of the marriage and prior to the parties’ date of separation. She actually received and sold the stock prior to the date of distribution. Plaintiff failed to prove the stock should be classified as separate property. The trial court properly classified the stock, and the proceeds therefrom, as divisible and/or marital property. This assignment of error is overruled.

The dissenting opinion disagrees with the trial court’s classification of the stock as marital property. That opinion contends that plaintiff’s stock grant was conditioned: (1) on her remaining an employee in good standing at the end of her six-month evaluation period, and (2) upon signing a covenant not to compete. Plaintiff received the right to the stock in her employment agreement signed on 10 December 1999, during the marriage and before the date of separation. The employment agreement granting plaintiff’s right to the stock required only two conditions: (1) plaintiff must begin work in January, and (2) plaintiff must remain an employee for six months. Her execution of the covenant not to compete was not a condition stated in plaintiffs employment agreement. ASA’s Stock Program Plan provided that plaintiffs signing of a covenant not to compete was left to the discretion of the plan administrator. Plaintiff did not sign the covenant not to compete until months after she received over 8,000 shares. Our Court has held, and we are bound by precedent, “our equitable distribution statutes have been amended to define marital property to include vested and nonvested pensions. N.C. Gen. Stat. § 50-20(b)(l) (1999). Thus, a correct and current reading of our equitable distribution statutes is that marital property includes vested and nonvested stock options.” Fountain, 148 N.C. App. at 337 n.12, 559 S.E.2d at 32 n.12 (emphasis supplied).

The dissenting opinion also disagrees with the trial court’s classification of the stock as divisible property, stating that the “conditional stock options” were earned as a result of postseparation actions or activities. At the date of separation, the only “condition” remaining for the stock to vest and issue was plaintiff’s continued employment with ASA. This is a normal and expected condition in deferred compensation and stock plans that vest in the future. Plaintiff’s stock was not earned from postseparation activities other than continued employment. Plaintiff received the stock right in her employment agreement. The employment agreement and the commencement of plaintiff’s employment both occurred while she was married to defendant and created a nonvested interest in the 10,000 shares of stock. These shares vested, were issued, and sold prior to the date of distribution. The trial court properly classified the stock options as divisible property. This assignment of error is overruled.

IV. Valuation of the Stock

Plaintiff also assigns error to the trial court’s failure to apply a coverture formula when awarding defendant’s share of the proceeds from the sale of the stock. North Carolina has not enacted or adopted any definitive approaches for valuing stock rights. N.C. Gen. Stat. § 50-21(b) (2001) requires marital property to be valued as of the date of the parties’ separation and divisible property to be valued as of the date of distribution. We apply an abuse of discretion standard and will uphold the trial court’s valuation if it “is a sound valuation method, based on competent evidence, and is consistent with section 50-21(b).” Fountain, 148 N.C. App. at 339, 559 S.E.2d at 33. When distributing deferred compensation benefits, our statutes require the award to be distributed

using the proportion of time the marriage existed (up to the date of separation of the parties), simultaneously with the employment which earned the vested and nonvested pension, retirement, or deferred compensation benefit, to the total amount of time of employment. The award shall be based on the vested and nonvested accrued benefit, as provided by the plan or fund, calculated as of the date of separation, and shall not include contributions, years of service, or compensation which may accrue after the date of separation.

N.C. Gen. Stat. § 50-20.1(d) (2001) (emphasis supplied). Although scant case law exists on this new statute, we recently held that the valuation method prescribed by this section is known as the “fixed percentage method.” Gilmore v. Garner, 157 N.C. App. 664, 670, 580 S.E.2d 15, 20 (2003). When expressed as a fraction, the numerator is “the total period of time the marriage existed (up to the date of separation) simultaneously with the employment which earned the vested pension or retirement rights,” with the denominator being “the total amount of time the employee spouse is employed in the job which earned the vested pension or retirement rights.” Id. (citations omitted).

Plaintiff argues that defendant should receive only a portion of the 10,000 shares, and asserts she worked for ASA only twenty-nine days before separating from defendant. Defendant contends that all 10,000 shares of stock were marital or divisible property, despite the fact plaintiff was required to remain employed after the date of separation in order for the shares to vest. The trial court made specific findings of fact that the stock at issue was earned as a consequence of plaintiffs marital and preseparation activities:

(10) The Court specifically finds that the AON Corporation stock and proceeds derived therefrom by the plaintiff in the year 2000 (after the date of separation, but before the date of distribution) was acquired as a result of the efforts of plaintiff during the marriage and before the date of separation, said efforts including, but not limited to, bonuses and contractual rights.

Plaintiff acquired her right to the 10,000 shares by her employment agreement dated 10 December 1999, and began working in January, 2000, while married to defendant and prior to the date of separation. Plaintiff did not pay money for these shares. The employment agreement did not require her to sign a covenant not to compete in order to receive these shares. ASA’s Stock Program Plan gave the plan administrator discretion whether to require employees to sign a covenant not to compete. Plaintiffs employment agreement with ASA does not recite that the stock grant will be proportional to her contribution or years of service with ASA. Her benefits did not “accrue” based on the amount of time she was employed with ASA. N.C. Gen. Stat. § 50-20.1(d) (2001). As long as she remained employed with ASA, she would receive 10,000 shares of stock.

Plaintiff was married, living with defendant, and had been employed by Lucent at the time she was offered and accepted employment with ASA. ASA was a “spin-off division” of Lucent. It was reasonable for the trial court to infer that plaintiffs employment with ASA resulted from experience she gained while employed with Lucent during their twenty-year marriage.

On the parties’ date of separation, plaintiff owned a nonvested interest in 10,000 shares of ASA stock. Plaintiffs acquired benefit at the date of separation was the entire 10,000 shares of stock. On the date of distribution, these shares had vested, were issued, and had been liquidated. Valuation of the stock at the date of distribution was the converted value of the original 10,000 shares. The trial court’s judgment distributed stock that had been issued and sold after all the contingencies had been satisfied. The trial court did not err in awarding defendant a portion of the 10,000 shares of stock since plaintiff acquired her interest in the stock during their marriage. This assignment of error is overruled.

V. Findings of Fact

Plaintiff argues the trial court made insufficient findings of fact, including the failure to make specific findings relating to the classification and valuation of the stock. Plaintiff contends the trial court is required to make more specific findings of fact regarding employment, grant, vesting, and maturity dates, as well as the impact of the covenant not to compete. Defendant contends the trial court’s findings of fact sufficiently and clearly indicate the valuation of the stock was unaffected by any of plaintiff’s activities after the parties separated.

“The trial court’s findings concerning valuation are binding on this Court if supported by competent evidence.” Fountain, 148 N.C. App. at 338, 559 S.E.2d 32. Plaintiff presented exhibits, including her employment agreement with ASA and the stock agreements, along with other evidence and testimony. The trial court’s judgment recites the dates necessary for the court to make its determination, as well as the evidence it relied upon to support its findings. The judgment also includes findings concerning the grant dates, the circumstances surrounding the substitution of ASA stock for AON stock, the date of separation, and the value of the stock. Substantial evidence supports the trial court’s findings of fact.

The dissenting opinion asserts that the trial court made insufficient findings of fact and cites the case of Hall v. Hall, 88 N.C. App. 297, 363 S.E.2d 189 (1987). Although the issues were similar, we specifically recognized in Fountain v. Fountain that North Carolina’s equitable distribution statutes were amended after Hall was decided. Fountain, 148 N.C. App. at 337 n.12, 559 S.E.2d at 32 n. 12 (“Since Hall . . . our equitable distribution statutes have been amended to define marital property to include vested and nonvested pensions.”). The dissenting opinion’s reliance on Hall is misplaced.

The trial court made sufficient findings of fact that are supported by substantial evidence to make a determination regarding the classification, valuation, and distribution of the stock. This assignment of error is overruled.

VI. Conclusion

The trial court properly classified the stock plaintiff received pursuant to her employment agreement as divisible and, in the alternative, marital property. The trial court did not err in valuing the stock and awarding defendant fifty-five percent (55%) of the proceeds from the sale of 10,000 shares of stock. The trial court made sufficient findings of fact relating to these classifications and valuations. The trial court’s equitable distribution judgment is affirmed.

Affirmed.

Judge Levinson concurs in the result with a separate opinion. Judge Wynn dissents in a separate opinion.