Perquimans County No. 04 CVD 73.

CALABRIA, Judge.

James W. Langston ("plaintiff") appeals the trial court's equitable distribution judgment ("the order"). The trial court classified certain joint accounts as marital property, certain debt as separate property, and ordered an equitable distribution of property. We affirm.

I. BACKGROUND

On 1 September 1998, plaintiff and Jeanne Langston ("Mrs. Langston") (collectively "the parties") were married in Hertford County, North Carolina. There were no children born of the marriage. The parties lived together as husband and wife until 11 February 2004, when they separated.

Prior to the marriage, plaintiff owned several investment accounts. After the parties were married and prior to the date of separation, plaintiff added Mrs. Langston's name to the investment accounts. Also during the marriage, plaintiff and Mrs. Langston negotiated an equity line loan with Wachovia Bank ("the equity line"). On 23 January 2004, less than three weeks before the date of separation, Mrs. Langston withdrew $51,000.00 from the equity line and deposited the funds into a bank account listed in her individual name. Prior to Mrs. Langston's withdrawal, the total indebtedness of the equity line was $6,419.78. On the date of separation, the total indebtedness was $57,419.78.

On 14 May 2004, plaintiff filed a complaint in Perquimans County District Court seeking, inter alia, an absolute divorce as well as a distribution of the parties' marital property and debt. Mrs. Langston answered and counterclaimed, seeking, inter alia, an equitable distribution. Plaintiff subsequently moved to sever the issue of absolute divorce from the other claims. On 9 May 2005, the trial court granted plaintiff an absolute divorce.

Mrs. Langston died testate on 12 July 2005. Julie Richardson, Executrix of the Estate of Mrs. Langston ("defendant"), was substituted as the party defendant and appeared in a representative capacity in this matter. On 2 December 2008, an Equitable Distribution Pretrial Order was filed. Schedules were included explaining the reasons both parties contended that an equal division of property was not equitable.

The equitable distribution hearing was held on 23 March 2009 in Perquimans County District Court. Plaintiff was 89 years old, received income in the amount of $792.00 per month in Social Security benefits and approximately $1,500.00 per month in retirement benefits. Following the hearing, the trial court entered an order finding and concluding that the investment accounts were marital property and that $51,000.00 of the equity line loan was defendant's separate debt. The court distributed the Wachovia CAP Account, Dominion Direct Account, and Putnam Hartford Capital Manager Contract to plaintiff, and the America's Utility Fund Account to defendant. The court also ordered plaintiff to pay defendant's $51,000.00 separate debt and stated that plaintiff's "obligation to do so was considered as a major factor for an unequal distribution." Plaintiff appeals.

II. STANDARD OF REVIEW

"The division of property in an equitable distribution is a matter within the sound discretion of the trial court." Cunningham v. Cunningham, 171 N.C. App. 550, 555, 615 S.E.2d 675, 680 (2005) (internal quotations and citation omitted). "When reviewing an equitable distribution order, the standard of review `is limited to a determination of whether there was a clear abuse of discretion.'" Petty v. Petty, ___ N.C. App. ___, ___, 680 S.E.2d 894, 898 (2009) (quoting White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985)). "A trial court may be reversed for abuse of discretion only upon a showing that its actions are manifestly unsupported by reason." White, 312 N.C. at 777, 324 S.E.2d at 833. "Further, `[i]t is well established that a trial court's conclusions of law must be supported by its findings of fact.'" Squires v. Squires, 178 N.C. App. 251, 256, 631 S.E.2d 156, 159 (2006) (quoting Robertson v. Robertson, 167 N.C. App. 567, 574, 605 S.E.2d 667, 671 (2004)). "[T]he findings of fact are conclusive [on appeal] if they are supported by any competent evidence from the record." Beightol v. Beightol, 90 N.C. App. 58, 60, 367 S.E.2d 347, 348 (1988).

III. INVESTMENT ACCOUNTS

Plaintiff argues that the trial court erred in concluding as a matter of law that the investment accounts were marital property. We disagree.

As an initial matter, we note that in the instant case, the trial court made sixty-nine findings of fact in the order. Plaintiff argues only Findings 20, 23, 28, 34 and 40. "Under N.C.R. App. P. 10(a), this Court's review is limited to those findings of fact and conclusions of law properly assigned as error." Dreyer v. Smith, 163 N.C. App. 155, 156, 592 S.E.2d 594, 595 (2004) (citing Koufman v. Koufman, 330 N.C. 93, 98, 408 S.E.2d 729, 731 (1991)). Assignments of error not argued in plaintiff's brief are abandoned. N.C. R. App. P. 28(b)(6) (2009). "Where no exception is taken to a finding of fact by the trial court, the finding is presumed to be supported by competent evidence and is binding on appeal." Koufman, 330 N.C. at 97, 408 S.E.2d at 731.

Therefore, in the instant case, all the other findings to which plaintiff has not assigned error or argued are presumed to be supported by competent evidence and are binding on this Court.

A pending action for equitable distribution does not abate upon the death of a party. Estate of Nelson v. Nelson, 179 N.C. App. 166, 170, 633 S.E.2d 124, 128 (2006). "Pursuant to N.C. Gen. Stat. § 50-20 (2007), equitable distribution is a three-step process requiring the trial court to `(1) determine what is marital [and divisible] property; (2) find the net value of the property; and (3) make an equitable distribution of that property.'" Petty, ___ N.C. App. at ___, 680 S.E.2d at 898 (quoting Cunningham, 171 N.C. App. at 555, 615 S.E.2d at 680). "The initial obligation of the trial court in any equitable distribution action is to identify the marital property in accordance with G.S. 50-20 and the appropriate case law." Cornelius v. Cornelius, 87 N.C. App. 269, 271, 360 S.E.2d 703, 704 (1987) (citing Mauser v. Mauser, 75 N.C. App. 115, 330 S.E.2d 63 (1985). N.C. Gen. Stat. § 50-20(b) (2008) defines marital and separate property as follows:

(1) "Marital property" means 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, except property determined to be separate property . . . in accordance with subdivision (2) . . . of this section.

(2) "Separate property" means 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.

"Under N.C. Gen. Stat. Sec. 50-20(c), only marital property is subject to distribution." Rogers v. Rogers, 90 N.C. App. 408, 409, 368 S.E.2d 412, 413 (1988). "The trial court must classify and identify property as marital or separate `depending upon the proof presented to the trial court of the nature' of the assets." Atkins v. Atkins, 102 N.C. App. 199, 206, 401 S.E.2d 784, 787 (1991) (quoting Johnson v. Johnson, 317 N.C. 437, 455, 346 S.E.2d 430, 440 n. 4 (1986)).

The burden of showing the property to be marital is on the party seeking to classify the asset as marital and the burden of showing the property to be separate is on the party seeking to classify the asset as separate. A party may satisfy her burden by a preponderance of the evidence.

Id. (citations omitted).

The party claiming the property to be marital must meet her burden by showing by the preponderance of the evidence that the property: (1) was "acquired by either spouse or both spouses"; and (2) was acquired "during the course of the marriage"; and (3) was acquired "before the date of the separation of the parties"; and (4) is "presently owned." N.C.G.S. § 50-20(b)(1). If this burden is met and a party claims the property to be separate, that party has the burden of showing the property is separate. This burden is met by showing by the preponderance of the evidence that the property was: (1) "acquired by a spouse by bequest, devise, descent, or gift during the course of the marriage" (third-party gift provision); or (2) "acquired by gift from the other spouse during the course of marriage" and the intent that it be separate property is "stated in the conveyance" (inter-spousal gift provision); or (3) was "acquired in exchange for separate property" and no contrary intention that it be marital property is "stated in the conveyance" (exchange provision). N.C.G.S. § 50-20(b)(2). If both parties meet their burdens, then under the statutory scheme of N.C.G.S. § 50-20(b)(1) and (b)(2), the property is excepted from the definition of marital property and is, therefore, separate property.

Id. at 206, 401 S.E.2d at 787-88.

In the instant case, plaintiff testified as follows:

Q [Plaintiff's counsel]: Did you at some point in time put Mrs. Langston's name on these [investment] accounts?

A [Plaintiff]: I guess I did, I believe.

Q: Okay. And do you know how you did that?

A: She did it. I made that decision, but she's the one that initiated it.

. . .

Q: [Plaintiff], tell me what you intended to do when you put Mrs. Langston's name on these accounts.

A: Well, I (inaudible) that she was going to [be] part of it, I guess.

Q: She was going to be part of it. You wanted her to be able to access the accounts?

A: Yes, sir.

On cross-examination, plaintiff testified:

Q [Defendant's counsel]: But you treated the accounts differently; you put her name on those accounts?

A [Plaintiff]: Yes, I did.

Q: And isn't the reason that you did that, Mr. Langston is that you wanted to take care of her if something would happen to you?

A: Yeah.

Q: And you told her that, did you not?

A: Sure.

Plaintiff further testified that he was from the "old school," which to him meant that in a marriage, "what's mine is yours, what's yours is mine[.]" Defendant then testified on behalf of Mrs. Langston since Mrs. Langston was deceased and defendant had witnessed Mrs. Langston's sworn testimony in her deathbed deposition from the Norfolk Sentara Hospital:

Q [Defendant's counsel]: Ms. Richardson, did I ask Ms. Langston about the circumstances existing at the time the accounts were made joint?

A [Defendant]: Yes.

Q: What did she testify about?

A: She said that about a month after [Ms. Langston and plaintiff] married they discussed adding her onto those [investment] accounts. [Plaintiff] had stated that he wanted her to be taken care of if he were to pass. And that she then was added onto those accounts with his knowledge.

The trial court found that the accounts were marital property since Mrs. Langston acquired the accounts during her marriage to plaintiff and prior to their separation. Therefore, the burden shifted to plaintiff to show by a preponderance of the evidence that the accounts were separate property. See Lilly v. Lilly, 107 N.C. App. 484, 486, 420 S.E.2d 492, 493 (1991).

"When classifying real property as marital or separate, the fact that legal title is in one or the other spouse, or in both, is not controlling. Rather, property is classified according to the definitions of marital and separate property contained in N.C. Gen. Stat. § 50-20(b)." Estate of Nelson, 179 N.C. App. at 169, 633 S.E.2d at 127 (citation omitted). Under N.C. Gen. Stat. § 50-20, "property acquired by gift from the other spouse during the course of the marriage shall be considered separate property only if such an intention is stated in the conveyance." N.C. Gen. Stat. § 50-20(b)(2) (2008) (emphasis added). "Thus, there is a presumption under N.C. Gen. Stat. § 50-20(b) that property acquired during the marriage is marital property." Estate of Nelson, 179 N.C. App. at 169, 633 S.E.2d at 127.

In the instant case, plaintiff testified that he added Mrs. Langston's name to the accounts and told her that the reason for doing so was to "take care of her" when he passed away. Plaintiff also contacted some of the various investment houses and requested having Mrs. Langston's name added to the accounts. Since plaintiff did not state in the conveyance that he intended for the accounts to remain separate property, he did not prove by a preponderance of the evidence that the accounts were separate property. The trial court properly concluded the accounts were marital, not separate property. Plaintiff's assignments of error are overruled.

IV. UNEQUAL DISTRIBUTION

Plaintiff argues that the trial court erred in ordering him to pay the equity line debt which the court found to be defendant's separate debt. We disagree.

N.C. Gen. Stat. § 50-20(c) states, in pertinent part:

If the court determines that an equal division is not equitable, the court shall divide the marital property . . . equitably. The court shall consider all of the following factors under this subsection:

(1) The income, property, and liabilities of each party at the time the division of property is to become effective.

. . . .

(3) The duration of the marriage and the age and physical and mental health of both parties.

. . .

(5) The expectation of pension, retirement, or other deferred compensation rights that are not marital property.

(6) Any equitable claim to, interest in, or direct or indirect contribution made to the acquisition of such marital property by the party not having title, including joint efforts or expenditures and contributions and services, or lack thereof, as a spouse, parent, wage earner or homemaker.

. . .

(11b) In the event of the death of either party prior to the entry of any order for the distribution of property made pursuant to this subsection:

a. Property passing to the surviving spouse by will or through intestacy due to the death of a spouse.

b. Property held as tenants by the entirety or as joint tenants with rights of survivorship passing to the surviving spouse due to the death of a spouse.

c. Property passing to the surviving spouse from life insurance, individual retirement accounts, pension or profit-sharing plans, any private or governmental retirement plan or annuity of which the decedent controlled the designation of beneficiary (excluding any benefits under the federal social security system), or any other retirement accounts or contracts, due to the death of a spouse.

. . .

(12) Any other factor which the court finds to be just and proper.

N.C. Gen. Stat. § 50-20(c) (2008).

In the instant case, the trial court's equitable distribution judgment awarded $220,992.40 to plaintiff as his sole and separate property and $87,021.05 to defendant as her sole and separate property. The court ordered plaintiff to pay $51,000.00 of the equity line debt that the trial court classified as defendant's separate debt. Stating that plaintiff's "obligation to do so was considered as a major factor for an unequal distribution," the court concluded that "[t]he division of the marital property and debt . . . is equitable after considering the evidence presented and the contentions asserted by each of the parties for an unequal division." Plaintiff's assignments of error are overruled.

V. CONCLUSION

Assignments of error not argued in plaintiff's brief are abandoned. N.C.R. App. P. 28(b)(6) (2009). The trial court's

equitable distribution order is affirmed.

Affirmed.

Judge STEELMAN concurs.

Judge WYNN dissents by separate opinion.