finding time stock sold as opposed to post-date-of-separation time when check representing the proceeds of the stock sale was received determinative in concluding that proceeds were marital property
How later courts described this case
- finding time stock sold as opposed to post-date-of-separation time when check representing the proceeds of the stock sale was received determinative in concluding that proceeds were marital property
- On remand, the trial court was directed to consider new evidence only “as the court finds necessary to correct the errors identified herein.”
- spouse’s post-separation discharge of a second mortgage increased value of home and must be considered as a distributional factor
- in equitable distribution case, if there is conflicting testimony as to value, court is not required to choose between values suggested but may arrive at value of its own choosing so long as based on appropriate factors in valuation process and evidence
Written by the judges who cited it.
The opinion
Judge GREENE
concurring in part and dissenting in part.
I do not agree with the majority that it “is not essential” for the trial court to specifically characterize as active, when such evidence is presented at trial, increases in the value of marital property occurring after the date of separation which are attributable to the acts of one spouse. Otherwise, I fully concur with the majority’s treatment of the issues raised in this appeal.
“In determining whether a particular distribution [of marital property] will be equitable, the judge must [to the extent evidence is presented] consider the statutory equitable factors set out in Section 50-20(c).” McIver v. McIver, 92 N.C. App. 116, 127 , 874 S.E.2d 144 , 151 (1988). To insure that due consideration has been given by the trial court to the evidence relating to any of the Section 50-20(c) factors, the findings must so reflect. Id.; Armstrong v. Armstrong, 322 N.C. 396, 405 , 368 S.E.2d 595, 600 (1988). When evidence is presented of a postseparation increase in the value of marital property, the judgment must include findings reflecting this evidence and the increase must be considered by the trial court as a “distributional factor.” Truesdale v. Truesdale, 89 N.C. App. 445, 450 , 366 S.E.2d 512, 516 (1988). In this context, consideration as a “distributional factor” requires that the party not receiving the asset which has increased in value be given some favorable consideration by the trial court in its determination of how to apportion the marital property between the parties in an equitable manner.
Evidence of the “[a]cts of either party to maintain, preserve, develop, or expand . . . marital property, during the period after separation . . . and before the time of distribution” is a specific statutory distributional factor, as is evidence of acts of either party “to waste, neglect, [or] devalue” the marital property. N.C.G.S. § 50-20(c)(11a) (Supp. 1992). Any resulting increase (or decrease) in the value of marital property is “active” in nature, as that term has been used in the context of increases in the value of separate property occurring during the marriage. See Ciobanu v. Ciobanu, *519 104 N.C. App. 461, 465 , 409 S.E.2d 749, 752 (1991) (increases in value of separate property attributable to contributions of marital estate are active). Pursuant to Armstrong , to the extent evidence is presented that either party has, after the date of separation, taken some action that causes the value of the marital property to increase (or decrease) in value, this evidence must be considered by the trial court in its determination of what is an equitable distribution and findings must be entered to reflect such consideration. See Mishler v. Mishler, 90 N.C. App. 72, 77 , 367 S.E.2d 385, 388 , disc. rev. denied, 323 N.C. 174 , 373 S.E.2d 111 (1988) (“where there is evidence of active . . . appreciation of the marital assets after [the date of the parties’ separation], the court must consider such appreciation as a factor under G.S. 50-20(c)(11a) or (12), respectively”).
In the instant case, the trial court, as reflected in its judgment, determined the increase or decrease in the value of each item of marital property occurring after the date of the parties’ separation. Specifically raised by defendant is the court’s finding reflecting an increase in the value of the marital portion of Sonic Financial Corp. in the amount of $13,594,000.00 between the date of separation and the date of trial. Significantly, as defendant argues in his brief, the trial court did not determine the extent to which this increase is attributable to the actions of defendant, despite the fact that ample evidence thereof was presented at trial. This was error, and on remand the trial court should also make findings regarding the extent to which the postseparation increase in the value of Sonic is attributable to defendant’s actions and consider that in making an equitable distribution of the marital property.