Opinion
No. COA12–10.
2012-08-7
Eddie Gene NEWSOME, Plaintiff v. Patricia Ann Jones NEWSOME, Defendant.
Smith, James, Rowlett & Cohen, LLP, by Norman B. Smith, for plaintiff-appellant. Vernon, Vernon, Wooten, Brown, Andrews & Garrett, PA, by Benjamin D. Overby and Wiley P. Wooten, for defendant-appellee.
Appeal by plaintiff from judgment entered 27 June 2011 by Judge Bradley Reid Allen, Sr. in Alamance County District Court. Heard in the Court of Appeals 9 May 2012. Smith, James, Rowlett & Cohen, LLP, by Norman B. Smith, for plaintiff-appellant. Vernon, Vernon, Wooten, Brown, Andrews & Garrett, PA, by Benjamin D. Overby and Wiley P. Wooten, for defendant-appellee.
CALABRIA, Judge.
Eddie Gene Newsome (“plaintiff”) appeals from the trial court's equitable distribution judgment which provided an unequal distribution of the marital estate in favor of Patricia Ann Jones Newsome (“defendant”). We affirm.
I. Background
Plaintiff and defendant were married on 13 August 1977. During their marriage, the parties acquired real property in McLeansville, North Carolina. The purchase of this real property was financed in part by a loan from plaintiff's mother, Opal Newsome.
The parties separated on 1 May 2007. On 24 June 2008, plaintiff filed an action for absolute divorce in Alamance County District Court. On 5 August 2008, defendant filed an answer and counterclaims seeking equitable distribution of the marital assets, postseparation support, and alimony. On 26 September 2008, plaintiff filed a reply to defendant's counterclaims which also sought equitable distribution of the parties' marital property. A final judgment of divorce was entered 22 October 2008.
After the parties separated, plaintiff attempted to conceal various items of marital property by attempting to establish that he had sold this property prior to the date of separation. These items included, inter alia: several vehicles which were purported to have been sold to plaintiff's friend David Greeson; a boat, motor, and trailer which were purported to have been sold to plaintiff's brother Donnie Newsome; and a gun safe which was purported to have been sold to Vick Smith. In addition, defendant failed to maintain the marital home during the two years he occupied it after the parties separated.
Beginning 10 May 2011, the trial court conducted a bench trial on the issue of equitable distribution. On 27 July 2011, the trial court entered a judgment which provided for an unequal division of the marital estate in favor of defendant. In its judgment, the trial court found as fact that plaintiff attempted to hide marital assets by producing falsified documentation and testimony in an attempt to establish the sale of several pieces of marital property prior to the date of separation. In addition, the court found that plaintiff's purported sale of his boat, motor and trailer to Donnie Newsome was for an amount well below the fair market value of these items. Finally, the trial court found that plaintiff had failed to maintain the marital home during the two years he lived there after the parties separated.
Based upon its consideration of plaintiff's conduct as well as other distributional factors, the trial court concluded that an equal distribution of the marital estate would not be equitable. As a result, the court awarded defendant approximately seventy-four percent of the net marital estate and awarded plaintiff the remaining approximately twenty-six percent of the estate. Plaintiff appeals.
II. Equitable Distribution
Plaintiff argues that the trial court erred by ordering an unequal distribution of the marital estate. We disagree.
Equitable distribution is governed by N.C. Gen.Stat. § 50–20 (2011). N.C. Gen.Stat. § 50–20(c) provides that “[t]here shall be an equal division by using net value of marital property and net value of divisible property unless the court determines that an equal division is not equitable.”
N.C. Gen.Stat. § 50–20(c) enumerates several factors the trial court is required to consider in deciding what distribution of the property would be equitable. The trial court has broad discretion in evaluating and applying the N.C. Gen.Stat. § 50–20 factors. Thus, [o]nly when the evidence fails to show any rational basis for the distribution ordered by the court will its determination be upset on appeal.
Brackney v. Brackney, 199 N.C.App. 375, 388–89, 682 S.E.2d 401, 409 (2009)(internal quotations and citations omitted). “[T] he finding of a single distributional factor by the trial court under N.C. Gen.Stat. § 50–20(c)(1) to (12) may support an unequal division.” Cobb v. Cobb, 107 N.C.App. 382, 387, 420 S.E.2d 212, 215 (1992).
In the instant case, the trial court's judgment reflects that it considered the following distributional factors: appraisal payments, mortgage payments, property tax payments, the age, physical health, employment, and earnings of both parties, the length of marriage, plaintiff's acts to conceal marital property, plaintiff's failure to maintain the marital home, and the debt owed to plaintiff's mother for the acquisition of real property. These distributional factors were properly considered under N.C. Gen.Stat. § 50–20(c)(1), (3), (11a), and (12). Since distributional factors were present, the trial court was permitted to divide the marital estate unequally, so long as the trial court's judgment showed “ any rational basis for the distribution ordered by the court....” Brackney, 199 N.C.App. at 388, 682 S.E.2d at 409.
A. Plaintiff's Attempts to Conceal Marital Property
Plaintiff first contends that the trial court erred by considering his acts to conceal marital property as a distributional factor. Plaintiff argues that his actions did not affect the value of the marital estate and thus, could not be used to determine how the marital estate was divided. However, N.C. Gen.Stat. § 50–20(c)(11a) expressly permits the trial court to consider “[a]cts of either party to maintain, preserve, develop, or expand; or to waste, neglect, devalue or convert the marital property or divisible property, or both, during the period after separation of the parties and before the time of distribution.” N.C. Gen.Stat. § 50–20(c)(11a) (2011). Based upon this statutory provision,
[t]his Court has previously recognized that “[a]ttempts by one or both spouses to deplete the marital estate or dispose of marital property after the date of separation but before distribution may be considered by the court when making the division, and any conversion of marital property for individual purposes may be charged against the acting spouse's share.”
Dalgewicz v. Dalgewicz, 167 N.C.App. 412, 421, 606 S.E.2d 164, 170 (2004)(quoting Sharp v. Sharp, 84 N.C.App. 128, 130, 351 S.E.2d 799, 800 (1987)). In the instant case, the trial court made multiple unchallenged findings reflecting that plaintiff was attempting to conceal marital property. Moreover, the trial court found that plaintiff had failed to properly maintain the parties' marital home while he lived there after the date of separation. Under N.C. Gen.Stat. § 50–20(c)(11a), the trial court correctly considered plaintiff's behavior as a distributional factor. This argument is overruled.
B. Weight of Distributional Factors
Plaintiff further contends that the trial court erred by failing to articulate and attach a specific value to each distributional factor. In support of this argument, plaintiff cites Locklear v. Locklear, 92 N.C.App. 299, 374 S.E.2d 406 (1988). In his brief, plaintiff contends that Locklear stands for the proposition that “the court was required to indicate the values it attached to each factor favoring unequal distribution.”
Locklear provides no support for plaintiff's proposition. The portion of Locklear cited in plaintiff's brief dealt with the issue of valuing a marital asset, not a statutory distributional factor. See id. at 302, 374 S.E.2d at 407–08 (“A mere recitation of the factors the trial court considered in its valuation of the corporation is not sufficient; the trial court must also indicate the value it attaches to each of the enumerated factors.” (emphasis added)).
The actual rule established by this Court is that the trial court is not required to “make findings revealing the exact weight assigned to any given [distributional] factor.” Finkel v. Finkel, 162 N.C.App. 344, 349, 590 S.E.2d 472, 476 (2004) (citations omitted). Thus, the trial court was not required to indicate an exact numerical value for each distributional factor it considered. This argument is overruled.
C. Amount of Unequal Distribution
Plaintiff next contends that the trial court erred in awarding seventy-four percent of the marital estate to defendant. In essence, plaintiff argues that the trial court's unequal distribution of marital property was excessive as a matter of law.
In support of his argument, plaintiff cites Embler v. Embler, 159 N.C.App. 186, 582 S.E.2d 628 (2003). In Embler, this Court reversed an unequal distribution of marital property because the trial court's judgment failed to include sufficient findings regarding the distributional factors it considered. Id. at 190, 582 S.E.2d at 631. Plaintiff notes that this Court overturned the distribution in Embler when one party was awarded sixty percent of the marital estate. Id. at 187, 582 S.E.2d at 629. Plaintiff suggests that this percentage was excessive and contributed to this Court's reversal of the trial court's judgment. Plaintiff contends that since the trial court's judgment in the instant case distributes the marital property more unequally than the judgment in Embler, it should also be reversed.
However, Embler is inapplicable to plaintiff's argument as it focused solely on the sufficiency of the trial court's findings on the distributional factors and did not discuss the percentages of marital property awarded as part of its analysis. Id. at 190, 582 S.E.2d at 631. So long as the trial court makes sufficient findings regarding the distributional factors, its division of marital property will be upheld absent an abuse of discretion, even if the division is significantly unequal. See Barlowe v. Barlowe, 113 N.C.App. 797, 800, 440 S.E.2d 279, 280–81 (1994), aff'd per curiam, 339 N.C. 732, 453 S.E.2d 865 (1995).
In Barlowe, this Court held that an award of seventy-five percent of the marital estate to the defendant and twenty-five percent to the plaintiff was not an abuse of discretion. Id. In the instant case, the trial court's order provided plaintiff with approximately twenty-six percent of the marital estate, slightly more than the twenty-five percent of the marital estate the plaintiff received in Barlowe. Thus, plaintiff's argument, that the distribution in the instant case was so unequal that it should be considered erroneous as a matter of law, is without merit. This argument is overruled.
D. Abuse of Discretion
Finally, plaintiff contends that the trial court abused its discretion by awarding an unequal division of the marital estate. In his brief, plaintiff notes that when the trial court announced its judgment from the bench, it specifically noted that it had not calculated the percentages of the marital property awarded to each party, and argues that its failure to do so demonstrated an abuse of the trial court's discretion.
However, this Court has previously addressed a similar argument and stated that while a statement of the percentages of the marital estate awarded to each spouse “would assist this Court in reviewing the trial court's exercise of its discretion, it is not necessary when, as in this case, we are able to determine from the judgment the percentages of marital property actually awarded to each party.” Barlowe, 113 N.C.App. at 800, 440 S.E.2d at 280–81.
In the instant case, as in Barlowe, the percentages of marital property awarded to each party can be calculated from the trial court's judgment. Moreover, the judgment reflects that the trial court considered several distributional factors before reaching its decision. As a result, we can discern no abuse of discretion in the trial court's judgment. This argument is overruled.
III. Conclusion
The trial court properly considered distributional factors in accordance with N.C. Gen.Stat. § 50–20(c), concluded that an equal division of the marital estate was inequitable, and made a rational decision regarding the division of the marital property. Accordingly, the trial court did not abuse its discretion when it awarded seventy-four percent of the marital estate to defendant and twenty-six percent of the marital estate to plaintiff. The trial court's judgment is affirmed.
Affirmed. Judges STEELMAN and BEASLEY concur.
Report per Rule 30(e).