Brown v. Brown

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA22-870

Filed 05 September 2023

Mecklenburg County, No. 17 CVD 11071

JAMES BROWN, Plaintiff,

v.

TIFFANY BROWN, Defendant.

Appeal by defendant from order entered 25 March 2022 by Judge Tracy H.

Hewett in Mecklenburg County District Court. Heard in the Court of Appeals 8

August 2023.

No brief filed on behalf of plaintiff-appellee.

Collins Family Law Group, by Rebecca K. Watts, for defendant-appellant.

ZACHARY, Judge.

Defendant Tiffany Brown (“Wife”) appeals from the trial court’s order

dismissing any equitable distribution claims between her and her former husband,

Plaintiff James Brown (“Husband”). After careful review, we affirm.

I. Background

Husband and Wife married in April 2007 and had two children. Their

relationship deteriorated, and on 19 June 2017, Husband filed a complaint for custody

of the children. Husband and Wife then separated on 30 June 2017. On 17 July 2017,

Wife filed her answer, which raised a counterclaim for child custody. Neither

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Opinion of the Court

Husband’s complaint nor Wife’s answer advanced any claim for or raised the issue of

equitable distribution of the parties’ marital estate.

On 9 January 2018, the trial court entered a temporary parenting arrangement

order. On 28 March 2018, Husband filed a notice of pretrial conference, to be held on

11 May 2018. On 6 April 2018, Wife served Husband with a request for production of

documents together with a set of interrogatories, both of which included several

requests regarding the parties’ property and finances. Wife filed her equitable

distribution affidavit on 27 April 2018. On 1 May 2018, Husband filed his equitable

distribution affidavit, and also served Wife with a set of interrogatories and a request

for production of documents.

The equitable distribution matter came on for pretrial conference in

Mecklenburg County District Court on 11 May 2018, and the trial court entered an

“Initial Pretrial Conference, Scheduling, and Discovery Order in Equitable

Distribution Matter” later that day. That order reflects, inter alia, that the parties

had served their equitable distribution affidavits upon each other and would attend

a mediated settlement conference with a court-appointed mediator. On 12 July 2018,

the parties attended mediation, but the resulting report of the mediator filed on 23

July 2018 reflects that the parties reached an impasse.

In December 2018, in a separate proceeding, Wife obtained a judgment for

absolute divorce from Husband. Nearly three years later, on 9 June 2021, Wife filed

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notice of hearing for a status conference in the equitable distribution matter.1 After

the status conference, the trial court entered a “Status Conference Checklist and

Order for Equitable Distribution Matter” on 28 July 2021.

On 2 December 2021, the matter came on for calendar call. At the calendar

call, Husband asserted that no equitable distribution claims were actually pending

before the court; the trial court scheduled a hearing for 28 January 2022 to resolve

that issue. On the day of the hearing, Wife filed a memorandum of law in support of

her contentions that (1) an equitable distribution claim was pending, in that the

parties’ equitable distribution affidavits acted as applications for equitable

distribution under N.C. Gen. Stat. § 50-20(a) (2021) and Rule 7(b)(1) of the North

Carolina Rules of Civil Procedure, and (2) Husband should be equitably estopped

from denying the existence of an equitable distribution claim.

On 25 March 2022, the trial court entered an order in which it made the

following pertinent findings of fact:

23. The Court finds that it is undisputed that there is not,

nor ever was, a claim or cross claim, by either party

pending for Equitable Distribution.

24. The Court finds that both parties were represented by

counsel at critical points during which a claim/cross claim

could have been made and that both participated as if a

claim was pending such that [Husband] did not

intentionally misrepresent that a claim was pending and

was apparently under the same false assumption,

1 In her appellate brief, Wife notes that the record is silent as to “why it was nearly three years

after mediation was concluded that the matter again began to move forward in the court system.”

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therefore, [Wife] cannot claim she depended on his

representation.

Consequently, the trial court concluded and ordered, simply: “Equitable

Distribution shall be dismissed.” Wife timely filed notice of appeal.

II. Discussion

Wife raises similar arguments on appeal as she did before the trial court. Wife

first argues that the trial court erred by concluding that no equitable distribution

claim was pending “[b]ecause the parties had properly applied to the court for an

equitable distribution through the filing of their equitable distribution affidavits[.]”

Then, Wife alleges that “[t]he trial court acted under a misapprehension of the law

and so abused its discretion when it declined to estop [Husband] from denying the

existence of an equitable distribution claim.”

A. Application for Equitable Distribution

Although Wife acknowledges that neither she nor Husband ever “filed a paper

captioned as a complaint for equitable distribution, a counterclaim for equitable

distribution, or a motion for equitable distribution,” she nonetheless argues that she

“sufficiently asserted a claim for equitable distribution through her pleadings which,

when construed liberally, meet the statutory requirements for bringing an equitable

distribution action by motion.”

1. Standard of Review

Wife “presents an argument regarding the proper method for asserting an

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equitable distribution claim based upon an interpretation of [N.C. Gen. Stat.] § 50-11

and thus raises an issue of statutory construction.” Bradford v. Bradford, 279 N.C.

App. 109, 112, 864 S.E.2d 783, 786 (2021). We conduct de novo review of statutory

construction issues. Id. “Pursuant to the de novo standard of review, the [C]ourt

considers the matter anew and freely substitutes its own judgment for that of the

trial court.” Id. (citation omitted).

2. Analysis

In this case, it is undisputed that neither Husband nor Wife raised an equitable

distribution claim in their initial pleadings; he did not raise it as a claim in his

original complaint, nor did she raise it as a counterclaim in her answer. Instead, Wife

contends that “the documents that they did file and sign were equivalent to filing a

motion for equitable distribution.” We disagree.

The basic procedure for properly raising a claim for equitable distribution is

prescribed by statute. N.C. Gen. Stat. § 50-20(a) provides: “Upon application of a

party, the court shall determine what is the marital property and divisible property

and shall provide for an equitable distribution of the marital property and divisible

property between the parties in accordance with the provisions of this section.” N.C.

Gen. Stat. § 50-20(a). Section 50-21(a) provides, in pertinent part:

At any time after a husband and wife begin to live separate

and apart from each other, a claim for equitable

distribution may be filed and adjudicated, either as a

separate civil action, or together with any other action

brought pursuant to Chapter 50 of the General Statutes, or

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as a motion in the cause as provided by [N.C. Gen.

Stat. §] 50-11(e) or (f).

Id. § 50-21(a).

Notably, our General Statutes also provide: “An absolute divorce obtained

within this State shall destroy the right of a spouse to equitable distribution under

[N.C. Gen. Stat. §] 50-20 unless the right is asserted prior to judgment of absolute

divorce . . . .” Id. § 50-11(e). As Wife obtained an absolute divorce during the pendency

of this supposed equitable distribution claim, her right to equitable distribution is

entirely reliant on whether she asserted that right prior to her absolute divorce.

“Equitable distribution is a property right. Therefore, a married person is

entitled to maintain an action for equitable distribution upon divorce if it is properly

applied for and not otherwise waived.” Hagler v. Hagler, 319 N.C. 287, 290, 354

S.E.2d 228, 232 (1987) (citations omitted). However, our Supreme Court has

recognized that “equitable distribution is not automatic. The statute provides that a

party seeking equitable distribution must specifically apply for it.” Id. (emphasis

added). The question thus arises: does the filing of an equitable distribution affidavit

in an ongoing child-custody action constitute an “application of a party” for equitable

distribution? We conclude that it does not.

Wife relies in part upon our recent opinion in Bradford, in which this Court

recognized that “[n]one of the statutes addressing equitable distribution limit the

particular type of pleading for ‘filing’ (N.C. Gen. Stat. § 50-21) or ‘asserting’ (N.C.

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Gen. Stat. § 50-11) an equitable distribution claim.” 279 N.C. App. at 121, 864 S.E.2d

at 792. Wife reads our Bradford decision in tandem with the principle of broad

construction of pleadings found in the North Carolina Rules of Civil Procedure, see,

e.g., N.C. Gen. Stat. § 1A-1, Rule 8(f) (“All pleadings shall be so construed as to do

substantial justice.”), to claim that, “[s]o long as the party has made assertions

sufficient to put the other party on notice that an equitable distribution is being

sought and the basis for that requested relief, the party has sufficiently applied for

an equitable distribution.”

However, in Bradford and each of the cases upon which Wife relies, the issue

was whether a party sufficiently asserted an equitable distribution claim in the

party’s complaint, answer, or motion in the cause. See Bradford, 279 N.C. App. at

121, 864 S.E.2d at 792 (concluding that a wife’s motion in the cause asserting a claim

for equitable distribution in her husband’s absolute divorce action was proper); see

also, e.g., Coleman v. Coleman, 182 N.C. App. 25, 29, 641 S.E.2d 332, 336 (2007)

(concluding that a wife’s “ ‘request’ for ‘equitable distribution’ [in her counterclaim]

was sufficient to put [her husband] on notice that [the wife] was asking the court to

equitably distribute the parties’ marital and divisible property”); Hunt v. Hunt, 117

N.C. App. 280, 283, 450 S.E.2d 558, 561 (1994) (concluding that the husband, in his

answer, “raised the issue of distribution of the parties’ marital property and prayed

for the affirmative relief of ‘an order requiring [the husband] and [the wife] to

distribute any and all assets in an equitable manner’, in effect asserting a

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counterclaim for equitable distribution”).

None of these cases, however, involved a supposed “application of a party” for

equitable distribution, N.C. Gen. Stat. § 50-20(a), by means of filing an equitable

distribution affidavit rather than raising an equitable distribution claim in “a

separate civil action, or together with any other action brought pursuant to Chapter

50 of the General Statutes, or as a motion in the cause as provided by [N.C. Gen. Stat.

§] 50-11(e) or (f).” Id. § 50-21(a).

Moreover, N.C. Gen. Stat. § 50-21(a) provides that “the party who first asserts

the [equitable distribution] claim shall prepare and serve upon the opposing party an

equitable distribution inventory affidavit” and that this affidavit must be filed

“[w]ithin 90 days after service of a claim for equitable distribution[.]” N.C. Gen. Stat.

§ 50-21(a). Adopting Wife’s argument would require us to accept the facially absurd

position that an equitable distribution affidavit, by which a party may “first assert[ ]

the claim[,]” must be filed “[w]ithin 90 days after service” of itself. Id. “It is well settled

that in construing statutes courts normally adopt an interpretation which will avoid

absurd or bizarre consequences . . . .” Romulus v. Romulus, 216 N.C. App. 28, 34, 715

S.E.2d 889, 893 (2011). Accordingly, we decline to accept Wife’s argument, and affirm

the trial court’s conclusion that “there is not, nor ever was, a claim or cross claim, by

either party pending for Equitable Distribution.”

B. Estoppel

Alternatively, Wife argues that “[t]he trial court acted under a

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misapprehension of the law and so abused its discretion when it declined to estop

[Husband] from denying the existence of an equitable distribution claim.” However,

in her appellate brief, Wife relies upon arguments not made before the trial court

below; accordingly, this argument is not properly before us.

At the 28 January 2022 hearing, Wife’s counsel argued that Husband “should

be equitably estopped from asserting that there’s no valid [equitable distribution]

claim.” Wife’s counsel further explained: “It’s not fair for a litigant to notice a hearing,

file the appropriate documents, participate in it for four years, and then say, oh,

there’s nothing there, sorry. That’s not fair.”

On appeal, Wife challenges the trial court’s conclusion of law #24, which states,

inter alia, that both parties “participated as if a claim was pending such that

[Husband] did not intentionally misrepresent that a claim was pending and was

apparently under the same false assumption, therefore, [Wife] cannot claim she

depended on his representation.” In so deciding, the trial court clearly was

referencing the elements of equitable estoppel, consonant with Wife’s argument

below.

To invoke the doctrine of equitable estoppel, a party must prove the following

elements:

(1) The conduct to be estopped must amount to false

representation or concealment of material fact or at least

which is reasonably calculated to convey the impression

that the facts are other than and inconsistent with those

which the party afterwards attempted to assert;

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(2) Intention or expectation on the party being estopped that

such conduct shall be acted upon by the other party or

conduct which at least is calculated to induce a reasonably

prudent person to believe such conduct was intended or

expected to be relied and acted upon;

(3) Knowledge, actual or constructive, of the real facts by the

party being estopped;

(4) Lack of knowledge of the truth as to the facts in question

by the party claiming estoppel;

(5) Reliance on the part of the party claiming estoppel upon

the conduct of the party being sought to be estopped; [and]

(6) Action based thereon of such a character as to change his

position prejudicially.

Beck v. Beck, 175 N.C. App. 519, 527, 624 S.E.2d 411, 416 (2006) (citation and

emphasis omitted).

On appeal, however, Wife casts a broader net across several other estoppel

doctrines. As our Supreme Court has explained: “ ‘Estoppel’ is not a single coherent

doctrine, but a complex body of interrelated rules, including estoppel by record,

estoppel by deed, collateral estoppel, equitable estoppel, promissory estoppel, and

judicial estoppel.” Whitacre P’ship v. Biosignia, Inc., 358 N.C. 1, 13, 591 S.E.2d 870,

879 (2004). “North Carolina has also adopted the doctrine of quasi-estoppel.” Snow

Enter., LLC v. Bankers Ins. Co., 282 N.C. App. 132, 142, 870 S.E.2d 616, 624, disc.

review denied, 382 N.C. 720, 878 S.E.2d 806 (2022).

Wife abandons the doctrine of equitable estoppel as a defense on appeal.

Instead, from this roster of other estoppel doctrines, she has selected the doctrines of

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judicial estoppel and quasi-estoppel. Wife seeks to benefit from the fact that, unlike

equitable estoppel, both judicial estoppel and quasi-estoppel lack the “requirement of

detrimental reliance on the part of the party invoking the estoppel.” Whitacre, 358

N.C. at 19, 591 S.E.2d at 882.

It is well settled that “the law does not permit parties to swap horses between

courts in order to get a better mount” on appeal. Weil v. Herring, 207 N.C. 6, 10, 175

S.E. 836, 838 (1934). Accordingly, where a party “impermissibly presents a different

theory on appeal than argued at trial,” the argument “is not properly preserved and

is waived” on appeal. Angarita v. Edwards, 278 N.C. App. 621, 625, 863 S.E.2d 796,

800 (citation, brackets, and internal quotation marks omitted), appeal dismissed, 379

N.C. 159, 863 S.E.2d 601 (2021). Wife has impermissibly presented a pair of different

theories on appeal than she argued at trial, theories which the trial court did not have

opportunity or reason to consider below. As such, this argument is not properly

preserved, and is waived on appeal. See id.

Moreover, assuming, arguendo, that Wife properly preserved her quasi-

estoppel argument, she has not established that Husband should be estopped under

that doctrine. Our Supreme Court has described quasi-estoppel as a “branch of

equitable estoppel”—albeit one that “may be more closely related to judicial estoppel

than any other equitable doctrine.” Whitacre, 358 N.C. at 17, 18, 591 S.E.2d at 881,

882. “Under a quasi-estoppel theory, a party who accepts a transaction or instrument

and then accepts benefits under it may be estopped to take a later position

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inconsistent with the prior acceptance of that same transaction or instrument.” Id. at

18, 591 S.E.2d at 881–82. Wife has not shown here that Husband “accept[ed] a

transaction or instrument” by responding to her equitable distribution affidavit, or

that he has accepted a “benefit under” that affidavit. Id. Thus, Wife’s reliance on the

doctrine of quasi-estoppel is misplaced.

III. Conclusion

For the foregoing reasons, the trial court’s order is affirmed.

AFFIRMED.

Judges COLLINS and RIGGS concur.

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