Opinion
No. 160PA85
Filed 5 November 1985
Divorce and Alimony 30 — equitable distribution — finding of affair as factor to consider — remanded An equitable distribution action in which the trial court found that the wife's adulterous affair was a proper fact, or to consider in determining the distribution of marital assets was remanded for further proceedings in accord with the principles set forth in Smith v. Smith, 314 N.C. 80.
ON plaintiff's petition for discretionary review pursuant to N.C.G.S. 7A-31(a) of a decision of the Court of Appeals reported at 73 N.C. App. 177, 326 S.E.2d 65 (1985), vacating and remanding Chief District Court Judge J. B. Allen's order entered at the January 17-20, 1984, Session of ALAMANCE County District Court, determining distribution of marital property pursuant to N.C.G.S. 50-20(c).
Holt, Spencer Longest, by James G. Spencer, Jr., and Hunter, Wharton Howell, by John V. Hunter III, attorneys for plaintiff-appellant.
Boyce, Mitchell, Burns Smith, by Carole S. Gailor, attorney for defendant-appellee.
Justice MEYER dissenting.
Justice BILLINGS joins in the dissenting opinion.
In this equitable distribution action Judge Allen found inter alia, that defendant-wife "began having an adulterous affair . . . and began neglecting the plaintiff and their three minor children" which conduct was a "major reason for the break-up of this marriage . . . and . . . was the only serious and significant mistreatment of either party by the other party during the course of this marriage." There were other extensive findings concerning the fault of the defendant-wife in this connection. Based upon his findings, Judge Allen concluded that the "relative fault of the parties leading to the disintegration of their marriage" was a proper factor for consideration in determining the distribution of the marital assets. Subsequent to the entry of this order by Judge Allen, the Court of Appeals held that fault was not a relevant factor in determining the equitable distribution of marital property Wade v. Wade, 72 N.C. App. 372, 325 S.E.2d 260 (1984), disc. rev denied, 313 N.C. 612, 330 S.E.2d 616 (1985); Smith v. Smith, 71 N.C. App. 242, 322 S.E.2d 393 (1984); and Hinton v. Hinton, 70 N.C. App. 665, 321 S.E.2d 161 (1984). The Court of Appeals vacated Judge Allen's order and remanded the cause for a new order "based solely upon relevant and appropriate findings." The Court of Appeals' decision in this case was filed 19 February 1985. In the meantime, we allowed plaintiff's petition in Smith v. Smith, one of the cases relied upon by the Court of Appeals in its decision in the case now before us.
In Smith v. Smith, 314 N.C. 80, 87, 331 S.E. 682 687 (1985) filed subsequent to the Court of Appeals' decision in the instant case, we held that "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 50-20(c) and should not be considered."
This cause is remanded to the Court of Appeals for remand to the District Court of Alamance County for further proceedings in accord with the principles set forth in our opinion in Smith.
Modified and affirmed.