Opinion
No. COA02-758
Filed 19 August 2003 This case not for publication
Appeal by defendant from order entered 2 November 2001 by Judge Lisa C. Bell in Mecklenburg County Superior Court. Heard in the Court of Appeals 19 February 2003.
Elizabeth T. Hodges and Kary C. Watson for plaintiff appellee. M. Clark Parker for defendant appellant.
Mecklenburg County No. 99 CVD 17711.
Norman Lynn Hunley ("defendant") appeals the trial court's equitable distribution, alimony, permanent custody and child support order entered 2 November 2001, signed nunc pro tunc 27 June 2001.
The pertinent facts of the instant appeal are as follows: Amy Hunley ("plaintiff") and defendant were married on 13 February 1994. One child, Neil Carter Hunley ("the minor child") was born of the marriage on 10 June 1994. On 26 May 2000, plaintiff was granted temporary custody of the minor child and a divorce from bed and board from defendant. Defendant was ordered to pay post separation support and temporary child support to plaintiff. In preparation for the equitable distribution trial, plaintiff and defendant attended a final pretrial conference before District Court Judge Lisa C. Bell. The conference resulted in the entry of a "Final Equitable Distribution Pretrial Order" ("the pretrial order") on 14 December 2000. The pretrial order contains several schedules listing the various assets and debts of the parties, their values, and the proposed distribution. The pretrial order provides that the contents of the pretrial order are to be treated as stipulations of the parties.
Following a hearing, the trial court entered an equitable distribution order dividing the marital property equally, awarding alimony, child custody of the minor child and child support to plaintiff. The trial court made the following findings regarding the equitable distribution of the marital estate:
30. Each of the parties is seeking an unequal distribution of the marital and divisible estate in his or her favor.
31. March 17, 2000, is the date of separation for purposes of classification and valuation of marital and divisible assets and debts.
32. A "Final Equitable Distribution Pretrial Order" was filed in this matter. The Order listed each item of marital property and marital debt and put each on a particular schedule depending on the parties' respective positions on valuation and distribution. The "Final Equitable Distribution Pretrial Order" is hereby incorporated by reference as if more full set out herein.
. . . .
41. The Defendant's McGraw-Hill 401(k) plan had a balance as of the date of marriage of $81,299.59 and had a balance as of the date of separation of $319,017.85. Defendant had to divide this account with his first wife and no evidence was presented of any value remaining after this division. No credible evidence was presented as to the balance as of the date of trial. Defendant's argument that the 401(k) plan should be divided between Plaintiff and Defendant using his formula was not persuasive because this account was previously divided between the Defendant and his first wife before the date of marriage of the parties herein.
. . . .
43. In order to accomplish an equal distribution of the marital and divisible property between the parties, the sum of $77, 236.15, plus all increases and decreases in the sum from March 17, 2000, until the date of distribution, but exclusive of any contributions to or withdrawals from said Plan after March 17, 2000, and exclusive of any loans against said Plan, should be distributed to the Plaintiff from the Defendant's McGraw-Hill 401(k) plan by way of a qualified domestic relations order.
The trial court also made numerous findings of fact with respect to an automobile loan and child support for the minor child. The trial court then ordered the following: (1) defendant pay child support in the amount of $517.51 from his base salary and 12.5 percent of his bonus; (2) defendant pay $300.00 per month for sixty (60) months as alimony to plaintiff; (3) the distribution of marital items and debts; and (4) plaintiff receive $77,236.15 to be paid from defendant's 401(k) retirement plan ("the Plan"). From the order of the trial court, defendant appeals.
On appeal defendant argues that the trial court's findings of fact with respect to defendant's 401(k) retirement plan ("the Plan"), the classification of an automobile loan as a marital debt, and child support payments for the minor child are not supported by competent and substantial evidence in the record. For the reasons stated herein, we affirm in part, and remand in part the order of the trial court.
Initially, we note that "the trial court is vested with wide discretion in family law cases, including equitable distribution cases." Wall v. Wall, 140 N.C. App. 303, 307, 536 S.E.2d 647, 650 (2000). Therefore, "the division of marital property is within the sound discretion of the trial court and will not be disturbed on appeal absent a showing by the appellant of abuse of that discretion." Despathy v. Despathy, 149 N.C. App. 660, 661, 562 S.E.2d 289, 290 (2002). When the trial court divides and distributes marital property, the division of the property must be equal unless the court determines that a equal division would not be equitable. N.C. Gen. Stat. § 50-20(c) (2001). "[T]he trial court's rulings in equitable distribution cases receive great deference and may be upset only if they are so arbitrary that they could not have been the result of a reasoned decision." Lawing v. Lawing, 81 N.C. App. 159, 162, 344 S.E.2d 100, 104 (1986).
In his first assignment of error, defendant argues that the trial court failed to properly compute the martial interest of the Plan. Specifically, defendant contends that the trial court erred in finding that plaintiff is entitled to $77,236.15 from the Plan. We agree.
"An admission in a pleading or a stipulation admitting a material fact becomes a judicial admission in a case and eliminates the necessity of submitting an issue in regard thereto to the jury." Crowder v. Jenkins, 11 N.C. App. 57, 62, 180 S.E.2d 482, 485 (1971). It has long been established that judicial admissions are binding on the pleader as well as the court. Id. In Inman v. Inman, 136 N.C. App. 707, 525 S.E.2d 820 (2000) this Court stated the following:
When a conference is held prior to the trial of a matter in an effort, among other things, to simplify and formulate the issues, the trial court is to make an order following the conference which recites . . . the agreements made by the parties as to any of the matters considered, and which limits the issues for trial to those not disposed of by admissions or agreements of counsel; and such order when entered controls the subsequent course of the action, unless modified at the trial to prevent manifest injustice.
Id. at 713-714, 525 S.E.2d at 824; see also N.C. Gen. Stat. § 1A-1, Rule 16(a)(7) (2001). North Carolina General Statutes section 50- 20(b)(1) governs the distribution of marital and divisible property upon divorce. Section 50-20 defines "marital property" as including "all vested pension and retirement rights." N.C. Gen. Stat. § 50-20(b)(1) (2001). Under section 50-20.1, an award of retirement benefits is
determined 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. The award shall include gains and losses on the prorated portion of the benefit vested at the date of separation.
N.C. Gen. Stat. § 50-20.1(d) (2001). The valuation method prescribed by section 50-20.1(d), known as the "fixed percentage method," can be expressed as a fraction, the numerator of which "is based upon the proportion of the amount 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. Lewis v. Lewis, 83 N.C. App. 438, 442-43, 350 S.E.2d 587, 589 (1986); see also Seifert v. Seifert, 82 N.C. App. 329, 336-37, 346 S.E.2d 504, 508 (1986) (approving the fixed percentage method for distribution of retirement benefits), affirmed, 319 N.C. 367, 354 S.E.2d 506 (1987).
In the instant case, Schedule C of the pretrial order, which acts as a stipulation by both parties, states that the net value of the Plan is $319,017.85. The trial court deviated from the stipulated value of the Plan, finding that a previous marriage affected the division of the Plan. We disagree. The parties married on 13 February 1994 and separated on 17 March 2000. Defendant initiated the Plan in 1981, before the date of marriage. Therefore, defendant participated in the Plan for a total of eighteen years and four months, during which time he was married to defendant for seventy-three complete months. Utilizing the fixed percentage method, defendant was married to plaintiff for approximately thirty-three percent of the time during which he was accruing retirement benefits. Accordingly, plaintiff is entitled to a greater interest in the Plan than awarded by the trial court. Because plaintiff does not contest her award and because any error by the trial court inured to defendant's benefit, we conclude that defendant is not harmed by the error.
In his second assignment of error, defendant contends that the trial court committed reversible error in including the balance due on an automobile lease contract as marital debt. We disagree.
"The court has the discretion, when determining what constitutes an equitable distribution of the marital assets, to also apportion or distribute the marital debts in an equitable manner." Geer v. Geer, 84 N.C. App. 471, 475, 353 S.E.2d 427, 429-30 (1987). "A marital debt, is one incurred during the marriage and before the date of separation by either spouse or both spouses for the joint benefit of the parties." Huguelet v. Huguelet, 113 N.C. App. 533, 536, 439 S.E.2d 208, 210 (1994).
In the instant case, finding of fact number 37 states in pertinent part as follows:
37. Based on the parties' stipulation as well as the evidence found by this court, the following debts are classified as marital debts, were incurred during the marriage for the benefit of the marriage and family, and should be distributed to the Plaintiff. As of the date of separation the debts identified herein below had the balances as stated herein:
. . . .
Chevy Chase car loan $15,811.00
. . . . Defendant contends that the above finding was not supported by the evidence. We disagree. A careful review of the record reveals that the car loan was incurred during the marriage and that the balance of the car loan was $15,811.00 as of the date of separation. Although there was evidence that the vehicle was leased, the trial court did not attempt to classify or distribute the vehicle as a marital asset, but simply distributed the debt associated with the vehicle. Therefore, the trial court did not err in finding that the automobile loan was a marital debt. Accordingly, this assignment of error is without merit.
In his final assignment of error defendant argues that the trial court abused its discretion in establishing defendant's child support obligation. Specifically, defendant contends that the trial court erred in calculating his monthly salary. We agree.
This Court's review of a child support award is limited to a consideration of whether there is sufficient competent evidence to support the findings of fact, and whether, based on these findings, the Court properly computed the child support obligations. Hodges v. Hodges, 147 N.C. App. 478, 482, 556 S.E.2d 7, 9-10 (2001). Child support obligations should be determined by a party's actual income at the time the order is made. Id. at 483, 556 S.E.2d at 10.
Here, the trial court made the following finding of fact regarding child support payments:
8. The Defendant is employed as a consultant with CTB/McGraw-Hill Company. For purposes of calculating child support, the court finds that the Defendant's monthly gross income is $6,656.54 ($3,072.25 times 26 pay periods), without bonuses. For the year 1999, the Defendant received in April, 2000, a gross bonus of $46,217.00 which, after taxes, was $26,137.43 for that year or approximately $2,178.12 per month. This bonus appears to be in line with the gross and net bonuses that the Defendant has received prior to 2000.
At trial, defendant testified that he was paid twice monthly and plaintiff failed to introduce any evidence which would indicate that defendant was paid more than twice monthly. We note that plaintiff argues that the meaning of "twice a month" was left solely to the trial court's discretion; however, the evidence fails to support a finding that defendant was entitled to 26 pay periods a year at the time the order was entered. Therefore, the trial court's calculation based on 26 pay periods is incorrect. Defendant is paid twice monthly, which results in 24 pay periods. Therefore, the correct calculation is $3,072.25 times 24 pay periods divided by 12 which totals defendant's monthly salary at $6,144.50, without bonuses. Accordingly, defendant's monthly salary as determined by the trial court is not supported by competent evidence. We remand for recalculation of defendant's child support obligation.
Defendant also contends, in this assignment of error, that the court incorrectly calculated defendant's portion of work related child care for the minor child. Defendant asserts that under Worksheet B, the trial court failed to calculate an adjustment under the plaintiff's column of the worksheet. In the instant case, both parties agree that Worksheet B is the proper document to be used in this matter; however, the record does not include Worksheet B. Rule 9(a) of the Rules of Appellate Procedure provides that appellate review is limited to the record on appeal. N.C.R. App. P. 9(a) (2002). "It is the [defendant's] responsibility to make sure that the record on appeal is complete and in proper form." Miller v. Miller, 92 N.C. App. 351, 353, 374 S.E.2d 467, 468 (1988); see also Fortis Corp. v. Northeast Forest Products, 68 N.C. App. 752, 754, 315 S.E.2d 537, 538 (1984). This Court cannot assume or speculate that there was prejudicial error, when none appears on the record before it. See N.C.R. App. P. 9(a); see also State v. Moore, 75 N.C. App. 543, 548, 331 S.E.2d 251, 254, disc. review denied, 315 N.C. 188, 337 S.E.2d 862-63 (1985). Therefore, this Court is precluded from the possibility of effectively reviewing defendant's contention that the trial court erred in calculating his portion of work related child care expenses, because it requires speculation that the trial court committed prejudicial error. Accordingly, the argument regarding work related child care is overruled.
In summary, we conclude that the trial court failed to properly calculate the number of pay periods in which defendant receives a yearly salary. Because the trial court's calculation of the Plan did not reduce defendant's share of the Plan, defendant can show no harm. Accordingly, the order below is affirmed in part, and the matter is remanded in part for further proceedings not inconsistent with this opinion.
Affirmed in part and remanded in part.
Judge LEVINSON concurs.
Judge WYNN concurs in the result.
Report per Rule 30(e).