Opinion
No. COA12–1467.
2013-07-16
Donald Lee WILLIAMSON, Plaintiff, v. Melanie Foster WILLIAMSON, Defendant.
Crowe & Davis, P.A., by H. Kent Crowe, for plaintiff-appellee. LeCroy Law Firm, PLLC, by M. Alan LeCroy for defendant-appellant.
Appeal by defendant from order entered 13 August 2012 by Judge J. Gary Dellinger in Catawba County District Court. Heard in the Court of Appeals 22 May 2013. Crowe & Davis, P.A., by H. Kent Crowe, for plaintiff-appellee. LeCroy Law Firm, PLLC, by M. Alan LeCroy for defendant-appellant.
STEELMAN, Judge.
Where the prior order of the trial court was vacated by this Court, upon remand the trial court did not abuse its discretion in entering new findings of fact awarding a credit to plaintiff. Where the order of the trial court was vacated and the trial court did not receive additional evidence upon remand, findings of fact crediting plaintiff for payments made after the initial evidentiary hearing were not supported by evidence in the record. Where the prior decision by this Court held that the record was “devoid of any evidence as to the value of the residence at the date of separation” and no further evidence was received by the trial court upon remand, the finding of fact setting the fair market value of the marital residence at the time of separation was not supported by evidence in the record.
I. Factual and Procedural Background
This case was originally heard by this Court in Williamson v. Williamson, ––– N.C.App. ––––, 719 S.E.2d 628 (2011) ( Williamson I ).
Donald Lee Williamson (plaintiff) and Melanie Foster Williamson (defendant) were married on 22 February 1975 and had three children during their marriage. The parties separated on 26 July 2007. Plaintiff filed a complaint on 1 November 2007 for equitable distribution, possession of certain real and personal property, and an injunction preventing defendant from destroying plaintiff's business and personal assets. Defendant counterclaimed for divorce from bed and board, post-separation support, alimony, custody, child support, attorney's fees, and equitable distribution. Defendant appealed the 1 October 2009 equitable distribution order.
In Williamson I, we vacated the 1 October 2009 order and remanded the case for: (1) further findings of fact as to the value of the parties' business; (2) further proceedings to determine the value of the marital residence at the date of separation; and (3) more specific findings and proper classification of the money plaintiff paid in post-separation expenses for the support and maintenance of defendant. Williamson I, ––– N.C.App. at ––––, 719 S.E.2d at 631–32. On remand, neither party requested an evidentiary hearing and both parties agreed that an evidentiary hearing would not be necessary. The trial court entered the new equitable distribution order 13 August 2012.
Defendant appeals.
II. The Trial Court's Authority on Remand
In defendant's first argument, she contends that the trial court did not have the authority on remand to give to plaintiff a $16,602.03 credit for post-separation mortgage interest, taxes, and insurance payments paid between 1 August 2007 and 21 April 2009. We disagree.
A. Standard of Review
We review an equitable distribution award for abuse of discretion. Wiencek–Adams v. Adams, 331 N.C. 688, 691, 417 S.E.2d 449, 451 (1992) (citations omitted). “Only a finding that the judgment was unsupported by reason and could not have been a result of competent inquiry, or a finding that the trial judge failed to comply with the statute, will establish an abuse of discretion.” Id. (citations omitted).
B. Analysis
When an order of a lower court is vacated, those portions that are vacated become void and of no effect. Friend–Novorska v. Novorska, 143 N.C.App. 387, 393–94, 545 S.E.2d 788, 793 aff'd per curiam, 354 N.C. 564, 556 S.E.2d 294 (2001). On remand, the trial court is therefore “free to reconsider the evidence before it and to enter new and/or additional findings of fact based on the evidence,” with the exception of any portions of the order that are affirmed by this Court. Id. The plaintiff in Crowder v. Crowder, 147 N.C. App 677, 556 S.E.2d 639 (2001), similarly argued that when this Court reversed and remanded an equitable distribution order, the trial court did not have the authority on remand to reconsider the value of a logging company when not specifically directed to do so. Id. at 682, 556 S.E.2d at 642–43. We held that because the opinion from the first appeal “did not explicitly affirm or uphold any part of the court's order, findings, or conclusions,” but rather made “a blanket reversal,” the trial court was authorized to reconsider the evidence. Id.
In Williamson I, we vacated the entirety of the trial court's 1 October 2009 equitable distribution order and remanded the case for further proceedings and more specific findings of fact. Williamson I, ––– N.C.App. at ––––, 719 S.E.2d at 631–32. Our earlier opinion did not affirm or uphold any part of the trial court's 1 October 2009 order, findings, or conclusions. Id. On remand, the trial court was free to enter new or additional findings of fact supported by competent evidence and necessary to support its conclusions of law. Friend–Novorska, 143 N.C.App. at 393–94, 545 S.E.2d at 793. The credit to plaintiff for $16,602.03 was supported by evidence in the record (T p 42) and was without error. See Edwards v. Edwards, 110 N.C.App. 1, 13, 428 S.E.2d 834, 839–40 (1993) (discussing the various ways a trial court may treat post-separation payment of marital debt, including “crediting a spouse in an appropriate manner for post-separation payments”). We cannot say the decision of the trial court to award this credit to plaintiff was unsupported by reason and could not have been a result of competent inquiry.
This argument is without merit.
III. Challenges to the Trial Court's Findings of Fact
In her second and third arguments, defendant contends that the trial court's findings of fact 55, 71, and 53(A)(xi) are not supported by the evidence in the record. We agree.
A. Standard of Review
“ ‘[W]hen the trial court sits without a jury, the standard of review on appeal is whether there was competent evidence to support the trial court's findings of fact and whether its conclusions of law were proper in light of such facts.’ “ Oakley v. Oakley, 165 N.C. App, 859, 861, 599 S.E.2d 925, 927 (2004) (quoting Shear v. Stevens Bldg. Co., 107 N.C.App. 154, 160, 418 S.E.2d 841, 845 (1992)).
B. Credits to Plaintiff for Payments made after April 2009
The trial court's findings of fact 55 and 71 provide:
55. The Defendant refused to comply with the Courts April 22, 2009 Equitable Distribution Order by failing to vacate the former marital residence and execute and deliver a special warranty deed conveying all of her interest in the marital residence to the Plaintiff. As the result of the Defendant's failure to vacate the residence and deliver the warranty deed to the Plaintiff, the Plaintiff did not receive possession of the house and was required to pay the monthly payment including principal, interest, ad valorem taxes and insurance from July 1, 2009 until January 30, 2010 at a cost of $9,516.57 ($1,359.51 x 7 months). The Plaintiff should be given credit for these payments less the reduction in principal because the Plaintiff received the benefit of the principal reduction, but the remainder of the payments were made to prevent waste, preserve the marital estate and seek compliance with the Court's Equitable Distribution Order. The monthly principal reduction on the BB & T loan was $3,400.04. The Defendant should receive a credit of $6,116.53.
....
71. The Plaintiff is given credit against the distributive award in the sum of $6,116.53 for payments which he made to preserve marital property and the benefit of the marital estate on the BB & T loan between July 1, 2009 and January 30, 2010.
On remand, the trial court is not required to admit new evidence since it would “serve no purpose to admit additional evidence of factors static in nature.” Fox v. Fox, 114 N.C.App. 125, 136, 441 S.E.2d 613, 620 (1994). “The trial court, however, should allow new evidence as to any factor if the existence, non-existence, or quantum thereof is likely to have changed by the time of the new hearing.” Id.
In the instant case, the trial court credited plaintiff for payments made between 1 July 2009 and 30 January 2010. The trial court did not receive additional evidence prior to the entry of the 13 August 2012 order and therefore only had before it the evidence in the record from the April 2009 hearing. The findings of fact that credited plaintiff for payments made after that initial hearing thus cannot be supported by the evidence. There is no evidence in the record that supports the trial court's finding that plaintiff made payments towards the marital residence between 1 July 2009 and 30 January 2010. We vacate this ruling crediting plaintiff against the distributive award in the sum of $6,116.53 and remand for an evidentiary hearing on this issue.
C. Valuation of the Marital Residence
Defendant next challenges the trial court's finding of fact 53(A)(xi) that states “[p]laintiff's opinion was that the marital residence had a fair market value of $189,000.00 on the date of separation and on the date of distribution.”
In Williamson I, we held that the “record [was] devoid of any evidence as to the value of the residence at the date of separation.” Williamson I, –––N.C.App. at ––––, 719 S.E.2d at 632. The trial court did not consider any additional evidence before entering the 13 August 2012 order, and therefore, the same record is once again in front of this Court. Consistent with our previous ruling, we hold there is insufficient evidence in the record that supports the trial court's finding of fact. We vacate the ruling determining the fair market value of the marital residence at the date of separation and the date of distribution, and remand for further evidentiary proceedings.
We do not address defendant's challenge to the date of distribution value because upon remand, the trial court will be obliged to find a new date of distribution value. See Fox, 114 N.C.App. at 133, 441 S.E.2d at 618 (noting that “because we are remanding, the trial court will be obliged to find new date-of-trial values”); see also Suzanne Reynolds, Lee's North Carolina Family Law § 12.57(b), at 191 (5th ed. 2012) (“The date of valuation for divisible property, on the other hand, is the date of distribution, and the evidence of value may extend to the date of trial and any post-trial hearings that may precede the actual distribution.”).
IV. Conclusion
We vacate the trial court's ruling crediting plaintiff with the sum of $6,116.53 for payments made between 1 July 2009 and 30 January 2010. We vacate the trial court's findings and conclusion of law as to the fair market value of the residence at the date of separation and the date of distribution. All other portions of the trial court's equitable distribution order are affirmed. This case is remanded to the trial court (1) to determine the amount, if any, of credits to be given to plaintiff for payments made on or after 1 July 2009; (2) to determine the fair market value of the residence on the date of separation and the date of distribution; and (3) for entry of a final distributive award that considers the impact of the two findings on the undisturbed portion of the award. The trial court shall hear evidence on these matters.
AFFIRMED IN PART, VACATED IN PART, REMANDED IN PART. Judges CALABRIA and McCULLOUGH concur.
Report per Rule 30(e).