Clark v. Dyer

NO. COA13-1230

NORTH CAROLINA COURT OF APPEALS

Filed: 2 September 2014

CARLTON CLARK, JR.,

Plaintiff,

v. Hoke County

No. 09-CvD-1062

SUSAN BELMAIN DYER,

Defendant.

Appeal by plaintiff from Equitable Distribution Judgment

entered 7 February 2013 by Judge John H. Horne, Jr. in District

Court, Hoke County. Heard in the Court of Appeals 6 March 2014.

Ferrier Law, P.L.L.C., by Kimberly M. Ferrier, for

plaintiff-appellant.

No appellee brief filed.

STROUD, Judge.

Plaintiff appeals equitable distribution judgment. For the

following reasons, we remand in part and affirm in part.

I. Background

In this appeal from the trial court’s equitable

distribution judgment, plaintiff’s arguments can be summarized

as a claim that the trial court gave defendant the gold mine,

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while he got the shaft.1 We disagree and affirm, but for the

reasons explained below, we remand for additional findings of

fact and conclusions of law as to two issues and correction of

an typographical error and miscalculations.

“The parties met in the early spring of 2004” at Chrome’s

Bar and Grill in Fayetteville, where “plaintiff was a patron and

customer” and defendant was working as a bartender. The parties

began dating, and defendant became pregnant with the parties’

first child in May of 2004. The parties had two children

together, born in 2005 and 2006. After the birth of their

second child, in 2006, the parties married; they separated on 23

June 2009, and divorced on 14 March 2011.

Plaintiff owned and operated a sole proprietorship known as

“Air Tech” prior to, during, and after the marriage, and the

parties either separately or together during the marriage owned

substantial bank accounts, personal property, and several

1

As stated by Jerry Reed, who wrote, She Got the Goldmine (I Got

the Shaft), a country song which addresses some of the legal

aspects of divorce: “‘Goodbye, turkey. My attorney will be in

touch.’ So I decided right then and there I was gonna do what’s

right[.] Give 'er her fair share but, brother, I didn't know her

share was gonna be that much. She got the goldmine . . . I got

the shaft. . . . They split it right down the middle, And then

they give her the better half.” Jerry Reed, She Got the

Goldmine (I Got the Shaft), on The Man with the Golden Thumb

(RCA Records 1982).

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parcels of real property. On 18 December 2009, plaintiff filed

a complaint which included claims for divorce from bed and

board, a paternity test, child custody, and equitable

distribution. Thereafter, defendant filed an amended answer and

counterclaimed for divorce from bed and board, post-separation

support, permanent alimony, child custody and child support, and

equitable distribution.

On 17 November 2010, the trial court entered a Consent

Order awarding child support to defendant, interim equitable

distribution, and dismissing defendant’s counterclaims for post-

separation support and alimony. On 7 February 2013, the trial

court entered the equitable distribution judgment (“ED

Judgment”) which plaintiff appealed.2 The ED Judgment is

approximately 30 pages long and contains over 90 findings of

fact; thus, for brevity, efficiency, and clarity we discuss

below only those findings of fact necessary for an understanding

2

The ED Judgment found as fact that the parties were “divorced

on March 14, 2011” and that both children are children of “the

parties[.]” As we have already noted, the consent order

dismissed defendant’s counterclaims for post-separation support

and alimony. The interim equitable distribution order also

found as fact that “[a]ll issues relating to alimony, child

custody, child support, and attorney’s fees incurred by the

defendant in connection with the issues relating to child

custody, visitation, and support have been previously resolved

by prior orders of this court.” Thus, equitable distribution is

the only claim at issue between the parties on appeal.

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of the arguments before this Court.

II. Standard of Review

The standard of review on appeal

from a judgment entered after a

non-jury trial is whether there is

competent evidence to support the

trial court’s findings of fact and

whether the findings support the

conclusions of law and ensuing

judgment. The trial court’s

findings of fact are binding on

appeal as long as competent

evidence supports them, despite

the existence of evidence to the

contrary.

The trial court’s findings need

only be supported by substantial

evidence to be binding on appeal.

We have defined substantial

evidence as such relevant evidence

as a reasonable mind might accept

as adequate to support a

conclusion.

As to the actual distribution

ordered by the trial court, when

reviewing an equitable

distribution order, the standard

of review is limited to a

determination of whether there was

a clear abuse of discretion. A

trial court may be reversed for

abuse of discretion only upon a

showing that its actions are

manifestly unsupported by reason.

The trial court’s unchallenged findings of

fact are presumed to be supported by

competent evidence.

Peltzer v. Peltzer, ___ N.C. App. ___, ___, 732 S.E.2d 357, 359–

60 (citations, quotation marks, and brackets omitted), disc.

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rev. denied, 366 N.C. 417, 735 S.E.2d 186 (2012).

III. Observations Concerning This Appeal

This case does not, as did Hill v. Hill, “embody all of the

flaws that could possibly create an abominable appeal of an

equitable distribution judgment,” but it does embody many of

them, and adds on a few more for good measure. ___ N.C. App.

___, ___, 748 S.E.2d 352, 355 (2013) (emphasis added). As in

Hill, “[t]he defendant filed no brief.” Id. at ___, 748 S.E.2d

at 355. “The order of the trial court combines evidentiary

findings of fact, ultimate findings of fact, and conclusions of

law” although here there was some “attempt to make them separate

portions of the order.” Id. at ___, 748 S.E.2d at 356. “The

brief of appellant is replete with inaccurate references to the

record and transcript.” Id. Mostly, here the brief refers only

to the testimony in the transcript which is most useful and

convenient to support plaintiff’s argument, but fails to

specifically reference the detailed exhibits presented at trial

by both parties; without a brief from defendant, we have done

our best to find the relevant documents. “In many instances

there are no references to where the factual assertions are to

be found in the record or transcript, in violation of Rule 28(e)

of the Rules of Appellate Procedure.” Id. at ___, 748 S.E.2d at

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356.

Throughout plaintiff’s brief, he has commingled his

arguments and issues, much as he seems to have commingled his

separate, marital, and business funds during the marriage, thus

rendering it difficult for us to discern exactly what his

argument is as to many of the trial court’s findings and

conclusions. Plaintiff seems to realize this, as he prefaces

his arguments by stating that he “recognizes a mere broad brush

approach and a single assignment of error to the 7 February 2013

Equitable Distribution Judgment . . . is not appropriate, but

with humble respect, Plaintiff does take issue with the entire

Judgment and all of the Findings of Fact, Conclusions of Law and

the Order.” Plaintiff then proceeds to present ten relatively

specific issues focusing on particular items of property or debt

with a final issue entitled “ADDITIONAL ASSIGNMENTS OF ERROR” in

which plaintiff expresses general displeasure with various

pretrial rulings of the trial court, several discovery issues

which were not preserved for appeal, and the fact that the trial

court found much of defendant’s evidence more credible than his

own. Yet we must address plaintiff’s arguments in some logical

manner, within the applicable legal standards of review, so we

have reorganized his issues into three categories and will try

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to address his arguments, which are raised in scattershot

fashion, as they relate to each of the trial court’s three

required tasks in equitable distribution: classification,

valuation, and distribution.

And in addition to these flaws, the plaintiff’s contempt

and disdain for defendant is expressed throughout his brief. Of

course, it is clearly expressed throughout the record of this

contentious case as well. In fact, defendant filed a Rule 11

motion addressing the disparaging statements about her in

several motions which were filed for the purpose of “harass[ing]

and injur[ing]” her, and, in addition, have no relevance

whatsoever to the equitable distribution case. Plaintiff seems

fixated on the circumstances of the inception of his and

defendant’s relationship back at Chrome’s Bar and Grill, but

that has no relevance to this case or this appeal. We will not

address plaintiff’s many general grievances against defendant

which litter the record and brief, except to say that an

appellate brief is no place for such nonsense.

IV. Classification

Plaintiff argues that the trial court improperly classified

several items of property and debts. One of plaintiff’s

arguments as to classification arises repeatedly throughout his

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brief, so we will address it first as we can easily dispense

with it. Plaintiff places great emphasis upon defendant’s

pretrial stipulation which he characterizes as a stipulation

that “she made no financial contributions of any kind to the

Plaintiff or to his separate properties prior to or during the

marriage.” As plaintiff raises this argument more than once, we

will address this stipulation and its relevance in more detail.

Defendant did stipulate to the following:

1. Other than her bank account

records, the defendant has not maintained

any record of direct financial contributions

to the household expenses, bills, and debts

incurred by the parties during the course of

their marriage.

2. During the course of the marriage

of the parties, the defendant did not make

any direct financial contribution to the

payment of any of the plaintiff’s separate

debts which he had incurred prior to the

marriage of the parties.

3. During the course of the marriage

of the parties, the defendant did not make

any direct financial contribution toward the

payment of the mortgage on the residence in

which the parties resided during their

marriage.

4. During the course of the marriage

of the parties, the defendant did not make

any direct financial contribution toward any

items purchased by the plaintiff for his use

in his business known as “Air Tech”.

Plaintiff argues that since defendant did not put any funds

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into the bank accounts used during the marriage she did not make

any contribution to the acquisition of or the reduction of the

debt on various items of property. Plaintiff fails to

appreciate that although defendant did not make any “direct

financial contributions” to various property from her own income

or her own separate funds during the marriage, plaintiff’s

income, including his earnings from Air Tech, during the

marriage, is marital property, and his “direct financial

contributions” from his income during the marriage are marital

contributions. See N.C. Gen. Stat. § 50-20(b)(1) (2009). Thus,

to the extent that plaintiff claims that there was no marital

contribution to the acquisition of or reduction of debt on

various items of property during the marriage, his argument is

based upon a misapprehension of the law. Plaintiff’s

contributions were marital contributions. See id. We will now

address plaintiff’s arguments as to classification of the

various items.

A. Lakeview Drive Property

Plaintiff first contends that “the trial court improperly

classified and improperly valued the 355 Lakeview Drive

Property.” (Original in all caps.) “Plaintiff takes issue

with” at least 25 findings of fact, but for most of them fails

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to make any argument as to what exactly his “issue” is; thus, we

will address only those “issue[s] for which plaintiff makes an

argument.

Rather than quoting numerous pages of the judgment, we will

summarize the trial court’s findings about the Lakeview Drive

Property. Defendant’s parents owned Greenbrier Estates, Inc.,

which owned a large tract of land that was subdivided into lots.

The subdivision was owned by defendant’s parents or their

corporation for at least 30 to 35 years, and defendant’s

parents, sister, and brother-in-law all lived on the same lake.

For years prior to the marriage, defendant and her parents had

an understanding that one of the lakeside lots would be hers.

Ultimately, on 10 January 2005, prior to the marriage,

defendant’s parents conveyed two lots to plaintiff and

defendant, as tenants in common. The parties then discussed

placing a modular home on the lots and after extensive searching

and consideration, they jointly chose a model home from Siler

City and decided to place it upon the Lakeview Drive Property

lots. Plaintiff never conveyed any intent that the modular home

placed upon the Lakeview lots would be his home but always

referred to it as our home, at least until after the separation.

Defendant would never have agreed to place the modular home on

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the Lakeview Drive Property lots if she had known that plaintiff

may later claim that the modular home was his sole and separate

property. Plaintiff provided funds to purchase the modular home

and to have it erected on the Lakeview Drive Property lots,

except for $5,000.00 which defendant contributed towards the

purchase of the home. Plaintiff took out a construction loan and

a conventional loan to pay for the modular home. During the

marriage, defendant did not pay the mortgage on the Lakeview

Drive Property and did not make direct financial contributions

to its acquisition except for the $5,000.00. Up to this point

in the findings of fact, defendant has made no specific

challenge to the findings, and thus these facts are binding on

appeal. Allred v. Exceptional Landscapes, Inc., ___ N.C. App.

___, ___, 743 S.E.2d 48, 51 (2013) (“Unchallenged findings of

fact are presumed to be supported by competent evidence and are

binding on appeal.”)

Defendant does specifically challenge finding of fact

number 38, which is:

The plaintiff has contended that the

residence constitutes his separate property,

under the source of funds rule, contending

that the money for the residence came from

the sale of certain property that he had

owned on Water Street in Fayetteville, North

Carolina. However, as to the lots upon which

the home was constructed, they were clearly

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a gift to both parties by the defendant’s

parents prior to the marriage, and the

parties incurred no debt in connection with

the acquisition of the lots, nor did they

pay any consideration for the lots. The deed

for the two lots is dated January 10, 2005,

and was recorded on January 11, 2005, in

Book 652, at Page 376, Hoke County Registry,

and the recorded deed indicates that no

revenue stamps were purchased in connection

with the recording of the deed, confirming

that no consideration was paid.

Plaintiff’s entire argument as to finding of fact 38 is:

“In Finding 38 the trial court identifies the ‘source of funds’

rule, that Plaintiff expended his own separate funds, but then

seems to indicate that the ‘sources of funds’ rule fails.”

However, this is a flawed argument because the trial court did

not “indicate that the ‘sources of funds’ rule fails[,]” as

plaintiff argues, but rather did not find plaintiff’s evidence

regarding the source of the funds to be credible, as is made

clear in other findings of fact. As such, plaintiff does not

argue that finding of fact 38 is not supported by the evidence,

but rather he challenges the trial court’s conclusion of law

regarding the classification of the Lakeview Drive Property.

Plaintiff’s argument regarding finding of fact 39 is

similar to his argument regarding finding of fact 38. Finding

of fact 39 is that

[t]hereafter, the parties secured a loan for

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the construction of the home on the lots, in

the amount of $119,900.00, and the deed of

trust securing the said loan was recorded on

March 4, 2005, in the Office of the Hoke

County Register of Deeds, in Book 659, Page

367.

Plaintiff argues only that the evidence does not support a

finding that the parties secured a loan, as the loan was only in

plaintiff’s name, but again, plaintiff’s actual argument is a

challenge to the trial court’s conclusion of law as to the

classification of the Lakeview Drive Property.

In summary, the trial court concluded: The real property,

the two lots, owned by the parties as tenants in common and

acquired prior to marriage, are not marital; they are the

separate jointly owned property of both parties. Plaintiff made

a gift of a one-half interest in the structures on the property,

including the home, to defendant. Plaintiff does not truly

challenge any of the findings of fact upon which the conclusions

regarding the Lakeview Drive Property are based, but argues

mostly regarding the credibility of the evidence. The

unchallenged findings of fact support the trial court’s

classification of the Lakeview Drive Property.

Plaintiff does make a legal argument as well regarding the

Lakeview Drive Property, based upon McIver v. McIver, 92 N.C.

App. 116, 374 S.E.2d 144 (1988). Plaintiff argues that the

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trial court in McIver improperly “used a premarital relationship

and the fact that they were living together prior to marriage as

a basis to classify property as marital.” McIver bears a

superficial factual resemblance to this case, at least to the

extent that the husband purchased a lakefront lot and home in

which the parties both lived in prior to their marriage, paid

for by funds from the sale of property the husband had owned

before the marriage, and a home the parties continued to live in

after their marriage, until their separation. McIver, 92 N.C.

App. at 117, 117-18, 374 S.E.2d at 146.

In McIver, the trial court found that the husband had

purchased, in his own name, the lakefront lot and mobile home in

contemplation of marriage, the parties lived there, and the

wife, both before and after the marriage, provided services of

upkeep and improvements of the property. Id. at 122-23, 374

S.E.2d at 148. Based upon these facts, the trial court

classified the lakefront lot and home as entirely marital. Id.

at 123, 374 S.E.2d at 148-49. This Court reversed:

It appears from the record, as the

husband maintains, that the trial judge

improperly relied upon the parties’

premarital relationship--in particular, the

fact that they lived together--in

classifying certain property as marital. In

doing so, the judge operated under a

misapprehension of the law.

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Only married persons are afforded the

protections of our equitable distribution

statute. That statute is unambiguous:

property must be acquired during marriage to

be classified as marital property, and only

marital property is subject to distribution.

We decline to expand the Legislature’s clear

definition of marital property to include

property acquired prior to marriage.

The record shows that the wife’s

premarital contributions to what later

became the marital home consisted of

services in the form of housekeeping, upkeep

of the property, and helping to construct a

seawall. Though we do not decide whether a

spouse may have other remedies for services

provided before marriage, the potential

availability of equitable remedies--such as

constructive trust, resulting trust,

recovery in quantum meruit or quasi-

contract--does not transform property

acquired before marriage into marital

property subject to equitable distribution

under Section 50-20.

Accordingly, we conclude that it was

error for the trial judge to classify as

marital any interest in property acquired

before the parties were married but while

they lived together.

Id. at 125-26, 374 S.E.2d at 150 (citations omitted).

But what the trial court did in McIver is not what the

trial court did here. Compare id. In this case, it is clear,

and plaintiff does not seem to dispute, that the land itself is

separate property, as it was acquired prior to the marriage by

gift, in which each party had an equal, separate interest.

There was no indebtedness on the land, and thus no potential

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marital contribution by payment of a loan on the land, and the

trial court classified the land itself as separate. But the

modular home was affixed to the land prior to the marriage, but

acquired, by payment of the loans, both prior to and during the

marriage, so any separate interests are mixed with a marital

interest; thus, the dispute is as to the classification of the

home, which was purchased and affixed to the land prior to the

marriage. The trial court did not find that defendant’s

services of pre-marital housekeeping gave her a marital interest

in the home, as did the trial court in McIver. Id. at 125-26,

374 S.E.2d at 148-49. Here, the trial court concluded, “based

upon the totality of the circumstances[,]” that “plaintiff

intended a gift to the defendant of a ½ interest in the home.”

These circumstances included, but were not limited to, the fact

that they placed the home on jointly owned land which had been

given to them by defendant’s parents and that they selected the

home together and treated and referred to the home as ours both

prior to and during the marriage. The trial court made many

detailed findings about circumstances of acquiring and erecting

the home which we will not quote here, and they are not

effectively challenged by plaintiff. Thus, the legal issue

presented is not a “source of funds” issue; the issue is whether

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the findings support the trial court’s conclusion that plaintiff

made a pre-marital gift of a one-half interest in the home to

defendant.

Plaintiff’s brief fails to make any argument regarding the

issue of the pre-marital gift of the home, and defendant did not

file a brief with this Court. Since plaintiff has not presented

any argument that the trial court erred in its conclusion that

he made a gift of a one-half interest in the home to defendant,

he has waived this argument, and we will not construct this

argument for either party. Goodson v. P.H. Glatfelter Co., 171

N.C. App. 596, 606, 615 S.E.2d 350, 358 (2005) (“It is not the

duty of this Court to supplement an appellant’s brief with legal

authority or arguments not contained therein.”) Plaintiff’s

challenge to the classification of the Lakeview Drive Property

is therefore overruled.

B. Duffie Road Property

Plaintiff next contends that “the trial court erred by

failing to include the Duffie Road Property in the marital

estate” or to distribute it. (Original in all caps.) The trial

court made the following finding regarding the Duffie Road

Property:

43. In October of 2006, shortly before

the marriage of the parties, the plaintiff

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purchased two lots on Duffy [sic] Road in

Hoke County, North Carolina, where he

operated a shop in connection with his

refrigeration installation and repair

business. The deed for this property was

recorded on October 31, 2006, in the Office

of the Register of Deeds of Hoke County, in

Book 736, Page 1041, Hoke County Registry.

The deed indicates that excise tax in the

amount of $94.00 was paid in order to record

the deed, indicating that the plaintiff had

paid $47,000.00 for this property. Title to

this property was placed in the plaintiff

and the defendant, as joint tenants with

right of survivorship, pursuant to North

Carolina General Statute 41-2.

The trial court’s findings of fact regarding the Duffie

Road Property are intermingled with findings of fact regarding

the Lakeview Drive Property, and at times it is not entirely

clear as to which property the trial court is referring in the

findings of fact. It would appear that the trial court may have

simply considered the Duffie Road Property as separate property

of the parties, in which each party has a one-half interest, and

if so, the trial court’s failure to distribute this property

would be proper, since the trial court cannot distribute

separate property. Most of plaintiff’s arguments seek to

compare the Duffie Road property to the Lakeview Drive Property,

although it is not clear to us why. But it is true that the

trial court does not explicitly mention in its conclusions of

law or decree the classification, valuation, or disposition of

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the Duffie Road Property. Because we are unable to discern

which of the trial court’s findings of fact apply to the Duffie

Road Property and how the trial court actually classified this

property, we are unable to review the ED Judgment, and we remand

to the trial court for additional findings of fact and

conclusions of law regarding the Duffie Road Property.

C. Plaintiff’s Business

Plaintiff next contends that “the trial court erred by

including the plaintiff’s separate business property in the

marital estate.” (Original in all caps.) Plaintiff argues that

he “owned his businesses twenty seven years prior to marrying

the defendant. The Plaintiff conducted businesses through his

[three] bank accounts . . . . Plaintiff also owned equipment,

buildings and vehicles as a part of these businesses prior to

the marriage.” There were also accounts receivable involved

which the trial court considered based primarily on plaintiff’s

own deposition testimony and personal financial statement which

“plaintiff prepared or had prepared[,]” and only he, his sister,

and his accountant had access to it. Ultimately, the trial

court classified and valued plaintiff’s businesses not as whole

business entities but by classifying, valuing, and distributing

their components: the three bank accounts, the items of

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equipment such as forklifts and trailers, and the accounts

receivable.

Because the judgment addresses the business properties as

components, most of which are comprised of the bank accounts,

plaintiff’s arguments here address mainly the bank accounts and

centers on the “source of funds” rule and commingling:

“Comingling of separate property with

marital property, occurring during marriage

and before date of separation, does not

necessarily transmute separate property into

marital property; transmutation would occur,

however, if the party claiming the property

to be his separate property is unable to

trace the initial deposit into is [sic] form

at the date of separation.” Fountain v.

Fountain, 148 N.C. App. 329, 333, 559 S.E.2d

25, 30 (2002).

Plaintiff’s arguments are nearly impossible to follow, but

as best we can tell, they can be summarized this way: he owned

his businesses prior to marriage; the bank accounts had certain

balances on the date of marriage; the defendant did not

personally deposit any money into the bank accounts during the

marriage; and thus at least the amounts in the accounts as of

the date of marriage should be his separate property. There are

two problems with plaintiff’s arguments. One is factual and the

other legal.

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The factual issue is that plaintiff argues before this

Court that he himself testified at trial that “his sister cashed

his paychecks each week and put the cash in his drawer. . . .

His income from his business was not deposited back into his

business.” The trial court did not find plaintiff’s claim as to

how he handled his funds to be credible.3 Instead, the trial

court found that “plaintiff did not maintain separate bank

accounts for his personal expenditures and business

expenditures, but comingled his personal and business funds, as

well as his personal and business expenditures.” The trial

court further found that there were numerous transactions

including deposits and withdrawals in all of the accounts during

the marriage. The trial court also found that

[f]unds were transferred among the aforesaid

bank accounts, whenever one account needed

funds, and there were surplus funds in

another account. The court finds from the

testimony of Sieglenda Melvin, the

plaintiff’s sister, in her deposition of

January 17, 2011, that the bank accounts

constituted one ‘big bucket’ and that the

funds were all the plaintiff’s funds.

3

For example, the trial court also found, and this finding is

not substantively challenged on appeal, that “[t]hough the

plaintiff testified he had income in the year 2009 of only

$12,028.00, he introduced evidence that for the same year, he

had personal expenditures in excess of $106,000.00.”

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After many findings of fact regarding the bank accounts,

the trial court ultimately found as to the bank accounts:

68. The plaintiff has not traced the

funds in the account at the time of the

marriage into their form at the date of

separation. North Carolina General Statute

50-20(b)(1) creates the presumption that all

property in existence at the time of the

separation is marital property, and as to

the bank accounts, the plaintiff has failed

to rebut that presumption. Therefore, the

court classifies the funds in the bank

accounts on the date of the separation as

marital property.

As we noted above, plaintiff fails to appreciate that

defendant need not personally contribute financially to the bank

accounts during the marriage to create a marital interest.

Plaintiff’s own earnings and efforts during the marriage created

the marital interest, see N.C. Gen. Stat. § 50-20(b)(1), and he

failed to present sufficient evidence to trace his separate

contributions. Indeed, plaintiff has failed even in his brief

on appeal to articulate how the trial court could possibly trace

his pre-marital funds based upon the evidence presented, and the

findings of fact which the trial court made are fully supported

by the evidence. We conclude that the trial court did not err

in classifying “the funds in the bank accounts on the date of

separation as marital property.” This argument is overruled.

D. Plaintiff’s Rental Property

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Plaintiff contends that “the trial court erred by including

the separately owned rental property of the plaintiff in the

marital estate.” (Original in all caps.) The plaintiff directs

us to three findings of fact regarding three different

properties. However, the trial court did not include

plaintiff’s “separately owned rental property” in the marital

estate. The trial court actually found that two of the rental

properties were plaintiff’s separate property and one was

defendant’s separate property and that during the marriage

payments were made to reduce the debt on all the properties by

marital contribution. The trial court determined that the

“[r]eduction in debt[,]” paid with marital funds, was marital

property, not the properties themselves, and the trial court

included only this “[r]eduction in debt” value as a marital

asset. Accordingly, this argument is overruled.

E. Credit for Debts

Plaintiff contends that “the trial court erred by failing

to give plaintiff credit for his debt[,]” (original in all

caps.) including credit cards, a line of credit, and defendant’s

attorney’s fees that he was ordered to pay.

1. Credit Card and Line of Credit Debts

“Plaintiff takes issue with Finding 77[,]” which is as follows:

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77. The plaintiff has claimed that he

had the following debts at the time of the

separation of the parties:

Credit card debt $

1,469.64

American Express credit card $

89.95

American Express credit card $

388.43

Credit line $

9,311.00

However, since the plaintiff used

credit cards both in connection with his

business, as well as for personal expenses,

the court finds that the plaintiff has not

met his burden of proof of showing that the

said debts are marital debts, and will not

consider the said debts in the distribution

of the marital property.

Plaintiff first argues that he cannot figure out where the

numbers listed for these debts came from, which is presumably an

argument that these findings of fact are not supported by the

evidence. Yet the trial court also found, and plaintiff does

not challenge that “plaintiff has not met his burden of proof of

showing that the said debts are marital debts, and will not

consider the said debts in the distribution of marital

property.”

“In a non-jury trial, where there are sufficient findings

of fact based on competent evidence to support the trial court’s

conclusions of law, the judgment will not be disturbed because

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of other erroneous findings which do not affect the

conclusions.” In re Estate of Mullins, 182 N.C. App. 667, 670-

71, 643 S.E.2d 599, 601 (citation omitted), disc. rev. denied,

361 N.C. 693, 652 S.E.2d 262 (2007). Here, even if the trial

court’s findings as to the amounts of the debts were erroneous,

it did not affect the distribution of property, and thus we need

not address this issue. See id. This argument is overruled.

2. Attorney’s Fee Debt

Plaintiff also argues that the trial court should have

included in the distribution the $22,637.29 “debt” of attorney’s

fees which were awarded to defendant by the trial court in a

prior ORDER ON ATTORNEY FEES regarding “child support, post-

separation support and alimony[;]” we cannot fathom why

plaintiff would argue that an award of attorney’s fees incurred

by defendant on these claims, which obviously did not exist

during the marriage or on the date of separation, could possibly

be a marital debt or included in an equitable distribution

award.

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. The party who

claims that any debt is marital bears the

burden of proof on that issue. The party so

claiming must prove the value of the debt on

the date of separation and that it was

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incurred during the marriage for the joint

benefit of the husband and wife.

Becker v. Becker, 127 N.C. App. 409, 414-15, 489 S.E.2d 909, 913

(1997) (citations, quotation marks, and ellipses omitted). This

argument is entirely frivolous and overruled.

V. Valuation

Plaintiff argues that the trial court failed to properly

value several items of property.

A. Lakeview Drive Property

As discussed above, the Lakeview Drive Property has marital

and separate components, which the trial court valued in the ED

Judgment. We will start by seeking to determine what the trial

court actually did, since plaintiff’s brief does not articulate

this. We will express the trial court’s findings in table form:

Item of Property: Value: Finding of Fact

No.:

Value of entire Lakeview Drive $200,000.00 50

Property

Lot values $37,000.00 50

(separate property owned 50/50

by each party)

Value of structures including $163,000.00 51

residence and a separate garage

Mortgage balance on the $108,132.25 52

residence on the date of

separation

Equity value in structures $54,867.75 52

Premarital expenditures by $102,397.00 40

plaintiff (plaintiff’s separate

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interest) (65% using

the correct

number)4

Marital expenditures on $55,128.64 47

residence

(35% using

correct

number)5

Value of gift of ½ interest in $17,832.026 56

structures from plaintiff to

defendant

Because the trial court found that plaintiff made a gift to

defendant of a one-half interest in the home and garage, the

trial court found that “there is an additional jointly owned

separate component in the property of $36,267.58, of which each

party would own ½, or $18,133.79.”7 We agree that the trial

court’s math was wrong due to the typographical error of listing

4

The order finds $107,397.07 as plaintiff’s pre-marital

expenditures on the residence and garage in finding of fact 53,

which plaintiff claims, and we agree, is a typographical error,

and we have included the correct number from finding of fact 40.

The trial court found that 66.1% of the cost of the residence

was incurred by plaintiff prior to marriage, but this should be

65% using the correct numbers.

5

The trial court found 33.9%, for the same reasons as stated in

footnote 4.

6

The trial court finds the amount to be $18,133.79 based on the

typographical error mentioned in footnote 4. Using the correct

number of $102,397.00 yields the correct amount here,

$17,832.02.

7

Again, using the correct number of $102,397.07 for plaintiff’s

pre-marital contribution on the home and garage, this should be

a “separate component in the property of $35,664.04, of which

each party would own ½, or” $17,832.02.

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$107,397.07 as plaintiff’s pre-marital contribution on the home

and garage instead of $102,397.07, which then makes the trial

court’s calculation of the percentages wrong. Yet we do

understand how the trial court valued the property, the values

are supported by the evidence, and we do not find any abuse of

discretion in how the trial court allocated the percentages of

values.

Plaintiff’s real objection is to the classification of the

property, based upon the trial court’s finding that plaintiff

made a gift to defendant of a one-half interest in the

structures on the land, but we have already rejected that

argument. We therefore remand for the trial court to correct

the typographical error and resulting miscalculations, but

otherwise overrule this argument.

B. Business Value

Plaintiff also contends that “defendant failed to get an

appropriate business valuation.” (Original in all caps.)

Plaintiff’s argument mainly faults defendant for failing to

request a valuation of plaintiff’s businesses, specifically

AirTech, which he argues he owned twenty years prior to the

marriage; Rental Ice Machine; and the rental properties. This

argument is quite odd, as one would expect that if defendant

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were to present evidence of business valuation, she would

present a higher value than plaintiff. We do not think that

plaintiff is arguing that the valuation of his business assets

and accounts was too low; clearly, he thinks it was too high.

However, plaintiff himself admits “[t]he CPA that testified on

behalf of the Plaintiff . . . offered the only insight into the

value of Plaintiff’s separate businesses[.]” (Emphasis added.)

Thus, plaintiff is conceding that the trial court relied solely

upon evidence presented by plaintiff as to the value all of

these properties. To the extent that the trial court lacked

evidence on these valuations, plaintiff, as the owner and

operator of these businesses, would be primarily at fault, as he

had all of the information regarding his “separate business

property[.]” It appears that because the trial court accepted

some of his evidence, but rejected other parts, plaintiff seeks

to impugn the trial court for using the evidence he himself

presented, arguing that “knowing the favor Defendant’s counsel

garnered with the trial judge, he chose to use pieces of the

Plaintiff’s separate business property to arrive at [an]

increased marital award for an approximate two and [a] half year

marriage.” (Emphasis added.)

Plaintiff’s additional arguments on this issue address the

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credibility and weight of the evidence, not its sufficiency to

support the findings of fact. Plaintiff challenges at least 14

findings of fact as being “against the manifest weight” of the

evidence and then proceeds to argue, picking and choosing

various findings at random, what his evidence showed and why the

trial court should have relied upon it. Plaintiff does not

argue that the trial court did not have evidence upon which to

make its findings of fact, but rather that it was not his

evidence or that the trial court picked which portions to rely

upon instead of accepting all of it.

Contrary to plaintiff’s arguments, the manifest weight of

the evidence is not the correct standard of review; we review

the trial court’s findings of fact to determine if they are

supported by competent evidence. Peltzer, ___ N.C. App. at ___,

732 S.E.2d at 359. Furthermore, “[t]he trial court’s findings

of fact are binding on appeal as long as competent evidence

supports them, despite the existence of evidence to the

contrary.” Id. at ___, 732 S.E.2d at 359. Also, “it is within

a trial court’s discretion to determine the weight and

credibility that should be given to all evidence that is

presented during the trial.” Phelps v. Phelps, 337 N.C. 344,

357, 446 S.E.2d 17, 25 (1994). We will not reweigh the evidence

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presented to the trial court, so this argument is overruled.

VI. Distribution

Plaintiff also raises several arguments as to the actual

distribution of the marital property.

A. Calculation of the Credit for Post-Separation Payments by

Plaintiff on the Mortgage on the Lakeview Drive Property

Plaintiff argues that “the trial court erred by failing to

honor the stipulation of the parties and/or correctly calculate

the stipulation of the parties[.]” (Original in all caps.)

Plaintiff bases this argument upon the provisions of the Consent

Order of 17 November 2010, in which the parties resolved the

issues of child support, defendant’s claims for post-separation

support and alimony were dismissed, and interim equitable

distribution was made. The relevant provisions of the Consent

Order state that:

4. The plaintiff shall pay the

monthly mortgage payment on the residence

formerly occupied by the parties as husband

and wife, for nine months, but in any event,

no longer than until August 17, 2011, and in

addition, he shall pay the ad valorem taxes

and insurance on the said residence at 355

Lakeview Drive, Red Springs, North Carolina.

. . . .

16. The defendant shall pay the pro

rata mortgage payment for the month of

August, 2011, by paying 13 days thereof, in

the event all issues of equitable

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distribution are not resolved by August,

2011.

17. The plaintiff shall continue to

pay the mortgage, taxes, and insurance on

the residence formerly occupied by the

parties, until August 17, 2011, but his

payments thereon shall be considered as

interim equitable distribution, for which he

shall be entitled to a credit at the time of

the entry of any equitable distribution

judgment.

18. In the event the equitable

distribution action is tried and judgment is

entered prior to August 17, 2011, the

interim equitable distribution payments as

provided for herein shall cease and

terminate, but in no event shall the interim

equitable distribution payments required of

the plaintiff herein be extended beyond

August 17, 2011.

Plaintiff contends that the trial court’s finding of fact

in the ED Judgment awarding him credit for making mortgage

payments was in error because it “short[ed]” him the payments

made from the date of separation in June 2009 until December

2010 and that the trial court used the wrong amount for the

monthly payments, claiming that he testified that in October

2010 the payment was $1,021.17. Plaintiff also testified that

the payment in November of 2011 was $1,018.97 and $1,000.03 in

December of 2011. However, plaintiff’s argument ignores his own

very detailed exhibit number 45, which lists the “Post

separation BB & T Costs Paid for by” plaintiff which includes

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the mortgage payments for each month up until September of 2011.

The payments vary over time, but for the months of September

2010 until August 2011 the payments were $987.45, the amount as

found by the trial court. This was the amount of each and every

payment during the relevant time period, which was from the date

of entry of the Consent Order, November of 2010, until August of

2011, the ending date which was very specifically set forth in

the November 2010 Consent Order. This adds up to 8 months,

beginning in December of 2010 and ending in August 2011, at

$987.45 per month, with the prorated payment for August 2011 of

$541.62, and a total of $8,441.22, precisely the amount found by

the trial court.

Plaintiff argues that the trial court “erred by choosing

not to recognize or misinterpreting the agreement of the parties

in the 17 November 2010 Consent of the parties” and claims that

this nearly $20,000 error is an “unbalanced award [which] gives

the appearance [of] further bias against Plaintiff and suggests

an unbalanced abuse of discretion.” Plaintiff is entirely

incorrect. The trial court applied the Consent Order exactly as

it was written. The parties seem to have anticipated that their

equitable distribution case would be heard by 17 August 2011 and

chose to tailor their Consent Order on this assumption, even to

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the extent of providing for a pro-rata payment for August.

Plaintiff then filed a motion for peremptory setting to hear the

case on 15 August 2011. Unfortunately, the case was not heard

in August 2011, and it was peremptorily set for 19 September

2011, but this peremptory setting was continued on plaintiff’s

request. A series of motions and countermotions regarding

interim equitable distribution ensued, addressing the disputes

which arose because the ending date of the Consent Order

provisions had passed with no final resolution of equitable

distribution, ending in another interim equitable distribution

order or about 18 November 2011, in which plaintiff was ordered

to pay an interim equitable distribution payment of $10,000.00

to defendant. The trial finally began on 14 November 2011, “but

could not be completed during that session of court[,]” and

resumed at the 19 March 2012 session of the trial court, which

was the next session at which the trial judge “was assigned to

hold civil court in Hoke County.”

The Consent Order encompassed many issues which are not

subjects of this appeal. The parties reached a detailed

agreement regarding the mortgage payments for their own reasons

which are not revealed by our record, and neither we nor the

trial court can add to or subtract from that agreement. The

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trial court gave exactly the credit dictated by the Consent

Order. This argument is overruled.

B. Failure to Make Findings of Fact and Conclusions of Law

Regarding the Presumption of an In-Kind Distribution

Plaintiff contends that “the trial court failed to make any

findings of fact and conclusions of law relating to the

presumption of an in kind distribution.” (Original in all

caps.) The trial court ordered the following distribution to

defendant:

a. By transfer to [defendant] of

[plaintiff’s] ½ undivided interest in the

value of the lots upon which the residence

and garage are situated, with a value of

$18,500.

b. By transfer to [defendant] of

[plaintiff’s] additional separate interest

in the residence of $18,133.79 [or corrected

amount $17,832.02].

c. The balance of the distributive

award in the amount of $8,192.81 shall be

paid by the plaintiff to the defendant

within nine months of the date of the entry

of this order, or upon the refinance of the

residence by the plaintiff as required under

paragraph 7, supra, so as to secure the

release of the plaintiff from the deed of

trust on the said residence.

Plaintiff argues that the trial court did not make any

findings of fact or conclusions of law to support making a

distributive award not in-kind. While most of the distribution

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was in-kind, with the exception of $8,192.81 which was needed to

balance out the distribution, it is true that the trial court

did not specifically address why it ordered this payment.

In Allen v. Allen, our Court addressed this situation:

N.C. Gen. Stat. § 50-20(e) (2003) creates a

presumption that an in-kind distribution of

marital or divisible property is equitable,

but permits a distributive award to

facilitate, effectuate, or supplement the

distribution. The judgment of equitable

distribution must contain a finding of fact,

supported by evidence in the record, that

the presumption in favor of an in-kind

distribution has been rebutted. In the

instant case, the trial court did not make

findings pertaining to the presumption that

an in-kind division of the property was

equitable. Yet, the record contains evidence

that defendant’s business was a closely held

corporation and not susceptible of division.

Such evidence would support a finding that

the in-kind presumption was rebutted. We

remand for the entry of further findings of

fact regarding the basis for the court’s

distributive award.

168 N.C. App. 368, 372-73, 607 S.E.2d 331, 334 (2005) (citations

and quotation marks omitted). Here, instead of a closely held

corporation, plaintiff has a sole proprietorship, but the same

logic applies. We remand for the trial court to make an

additional finding of fact as to how the presumption in favor of

an in-kind award was rebutted and a conclusion of law supporting

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its distributive award.8

Plaintiff also argues that “the trial court failed to point

to a source of liquid assets from which Plaintiff could pay the

distributive award as required by Embler v. Embler, 159 N.C.

App. 186, 582 S.E.2d 628 (2003).” We disagree. In Embler, the

husband argued he was ordered to pay a distributive award

without a finding that he had liquid assets. Id. at 187, 582

S.E.2d at 629. Here, several bank accounts, valued in excess of

$60,000.00 in total, were distributed to plaintiff; these are

liquid assets which could logically serve as a source of

payment. In addition, the trial court gave plaintiff nine

months to make the payment. Accordingly, this argument is

overruled.

VII. Awarding Lakeview Drive Property to Defendant

Plaintiff also makes a separate argument in his brief that

defendant should not have been awarded the Lakeview Drive

Property because she does not have the financial ability to

maintain it. But plaintiff cites no law nor are we aware of any

requiring the trial court to consider as a distributional factor

what may happen to property in the future or a party’s ability

8

We note that the trial court could have simply allocated

$8,192.81 from one of the bank accounts to defendant, thus

accomplishing an in-kind distribution in full and eliminating

plaintiff’s next argument regarding a source for the payment.

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to maintain a property. Accordingly, plaintiff’s arguments as

to the Lakeview Drive Property are overruled.

VIII. Conclusion

For the foregoing reasons, we remand for additional

findings of fact and conclusions of law regarding the Duffie

Road Property, for correction of the typographical error and

resulting miscalculations regarding the Lakeview Drive Property,

and for an additional finding of fact as to how the presumption

in favor of an in-kind award was rebutted and a conclusion of

law supporting its distributive award; as to all other issues,

we affirm.

REMANDED in part and AFFIRMED in part.

Judges CALABRIA and DAVIS concur.