Opinion

McManus v. McManus

  • 76 N.C. App. 588
  • 334 S.E.2d 270
Court
Court of Appeals of North Carolina
Filed
Sep 17, 1985
Status
Published
Author
Becton
On the bench
Phillips, Eagles, Becton
Cited by
8 cases
Authority
More cited than 12.8%

upholding the trial court’s valuation of a stock based in part on its original purchase price, as well as the price the husband subsequently paid for more of the same stock and the dividends earned therefrom

How later courts described this case

  • upholding the trial court’s valuation of a stock based in part on its original purchase price, as well as the price the husband subsequently paid for more of the same stock and the dividends earned therefrom
  • assignments of error which allege trial court erred in its valuation of certain items raise no issue for this court to determine where basis for such error was not stated in the assignments

Written by the judges who cited it.

The opinion

Judge BECTON

concurring in part and dissenting in part.

The majority opinion prompts responses on two levels. First, given the number of appeals that are dismissed, not to mention the number of times attorneys are admonished, when attorneys fail to comply strictly with the Rules of Appellate Procedure, I am loathe to castigate attorneys and to find specific fault when an overly cautious attorney makes more than one assignment of er *594 ror or sets forth more than one exception to a particular ruling of the trial court.

Second, I concur in the majority’s analysis of all issues except the Triad stock issue. In my view Mr. McManus proved by clear, cogent and convincing evidence that the Triad stock was his separate — not marital — property. See Loeb v. Loeb, 72 N.C. App. 205 , 324 S.E. 2d 33 , cert. denied, 313 N.C. 508 , 329 S.E. 2d 393 (1985). Indeed, the uncontradicted evidence was that during the course of the marriage between the parties, Mr. McManus’ father bought stock in Triad Life and placed it in the name of each of his children, including Mr. McManus. Mr. McManus specifically testified that he did not put any of his own money into acquiring the stock and that his father gave the stock to him and not to the plaintiff, Mrs. McManus. Consequently, this case presents no issue on appeal in which my “evaluation of the defendant’s testimony [is] . . . substituted for that made by the trial court.” Ante. p. 5.

I reject the majority’s implicit suggestion, relying on the statutory presumption that property obtained during the marriage is “marital property,” that the trial judge as trier of the facts simply disbelieved Mr. McManus’ evidence. I find no basis upon which the trial court could have found that the Triad stock constituted “marital property,” and the trial court, therefore, erred in making the Triad stock a part of the “equitable distribution.”

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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