Opinion

Dusenberry v. Dusenberry

  • 73 N.C. App. 177
  • 326 S.E.2d 65
  • 1985 N.C. App. LEXIS 3186
Court
Court of Appeals of North Carolina
Filed
Feb 19, 1985
Status
Published
Author
Whichard
On the bench
Whichard, Wells, Becton
Cited by
0 cases
Authority
More cited than 33.3%

The opinion

WHICHARD, Judge.

This is an equitable distribution action pursuant to G.S. 50-20, 21, in which the court concluded as a matter of law that an equal division of the marital property was not equitable. It did so based in part upon findings that defendant-wife “began having an adulterous affair . . . and began neglecting the plaintiff and their three minor children” and that this 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.” It concluded that con

*178

sideration of “the relative fault of the parties leading to the disintegration of their marriage . . . [was] just and proper.”

Subsequent to entry of this order, this Court held that fault is not a relevant or appropriate consideration in determining an equitable distribution of marital property.

Hinton v. Hinton,

70 N.C. App. 665 , 321 S.E. 2d 161 (1984); see

also Wade v. Wade,

72 N.C. App. 372 , 325 S.E. 2d 260 (1985);

Smith v. Smith,

71 N.C. App. 242 , 322 S.E. 2d 393 (1984). The award here is clearly grounded upon fault-based findings regarding an adulterous affair on the part of defendant-wife. Because the court considered this irrelevant and inappropriate matter in awarding the marital property, the order must be vacated and the cause remanded for a new order based solely upon relevant and appropriate findings.

Vacated and remanded.

Judges WELLS and BECTON concur.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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