# McManus v. McManus

> Court of Appeals of North Carolina · September 17, 1985 · 76 N.C. App. 588

URL: https://www.frixlaw.com/law-library/cases/9849418

## Case

- **Full name:** MARY NANCY ALMOND McMANUS v. JOSEPH BRINSON McMANUS
- **Court:** Court of Appeals of North Carolina
- **Decided:** September 17, 1985
- **Citations:** 76 N.C. App. 588; 334 S.E.2d 270
- **Precedential status:** Published
- **Opinion:** Concurring in part by Becton
- **Judges:** Phillips, Eagles, Becton
- **Cited by:** 8 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9849418

## Opinion text

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.”

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9849418. Public record. Not legal advice.