Stewart v. Stewart

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA14-168
NORTH CAROLINA COURT OF APPEALS

Filed: 15 July 2014

CHRISTINE M. STEWART,
Plaintiff,

v. Buncombe County
No. 09 CVD 3134
WILLIAM A. STEWART,
Defendant.

Appeal by defendant from orders entered 6 July 2012 and 25

October 2013 by Judge Rebecca Knight and Judge Susan Dotson-

Smith, respectively, in Buncombe County District Court. Heard

in the Court of Appeals 3 June 2014.

Mary Elizabeth Arrowood for plaintiff-appellee.

The Exum Law Office, by Mary March Exum, for defendant-
appellant.

HUNTER, Robert C., Judge.

Defendant-appellant William Stewart (“defendant”) appeals

from equitable distribution and alimony orders. On appeal,

defendant argues that the trial court erred by: (1) adopting the

referee report as a final resolution of the parties’ equitable
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distribution over defendant’s objection; and (2) awarding

alimony to plaintiff.

After careful review, we affirm the trial court’s orders.

Background

Plaintiff-appellee Christine Stewart (“plaintiff”) and

defendant married in 1982, separated 18 December 2008, and

divorced 18 May 2010. Mediation as to equitable distribution of

the parties’ marital property proved futile. Disagreement

primarily concerned the value of William A. Stewart Superior

Painting, Inc. (“Superior”), a painting company started by the

parties. Pursuant to court order, the parties agreed that Dixon

Hughes, CPA would appraise Superior. Jedd Wellmaker of Dixon

Hughes valued Superior at $400,000, a figure accepted by

plaintiff and disputed by defendant. Pursuant to Rule 53 of the

North Carolina Rules of Civil Procedure, the trial court

appointed a referee, Gary S. Cash, (“Referee Cash”) to make

findings of the fair market value of marital assets, including

Superior, and to recommend an equitable distribution of the

marital property.

On 15 and 16 March 2012, Referee Cash held a hearing on the

value of the marital property. Based on this hearing, the

referee accepted Wellmaker’s appraisal of Superior. The
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referee’s final report (the “Referee’s Final Report”) adopted

Wellmaker’s valuation of Superior and recommended that defendant

be awarded Superior. Defendant filed written objections to the

Referee’s Final Report, as to the valuation of Superior and

relatedly to the prescribed distributive cash payment.

The matter came on for hearing 6 July 2012 before Judge

Knight. After finding that defendant objected to the Referee’s

Final Report but did not submit evidence or request to be heard,

the trial court adopted the report in full on 6 July 2012 (the

“equitable distribution judgment”). No transcript of this

hearing appears in the appellate record. Although defendant did

not properly appeal this order, this Court granted his petition

for writ of certiorari on 18 December 2013 to review the

equitable distribution judgment.

In her complaint, plaintiff also requested that the trial

court award her alimony, claiming that she was a dependent

spouse and defendant was a supporting spouse. The matter came

on for hearing before Judge Dotson-Smith beginning 12 August

2013. On 25 October 2013, the trial court entered judgment

awarding plaintiff alimony in the amount of $1,200 per month for

a period of five years (the “alimony order”). Defendant timely

appealed this order.
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Arguments

I. Adopting the Referee’s Final Report

First, defendant contends that the trial court erred in

adopting the Referee’s Final Report as a final resolution of the

equitable distribution claim over his objection. Specifically,

defendant argues that Wellmaker’s valuation of Superior should

not have been adopted and that the trial court failed to make

independent findings and perform independent review of the

referee’s findings. We disagree.

A. Valuation

To achieve an equitable distribution under N.C. Gen. Stat.

§ 50-20, “the trial court is required to conduct a three-step

analysis: 1) identification of marital and separate property; 2)

determination of the net market value of the marital property as

of the date of separation; and 3) division of the property

between the parties.” Burgess v. Burgess, 205 N.C. App. 325,

330, 698 S.E.2d. 666, 670 (2010). Defendant challenges step two

of the trial court’s analysis, arguing that the appraisal of

Superior was not supported by the evidence and was not based on

a sound method of valuation. Specifically, defendant contends

that the valuation was “highly inflated” and failed to take into

account “real life factors.”
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With regard to the method used to appraise a business for

equitable distribution, this Court has held that there is no

single best approach to valuation, but that

approaches courts may find helpful are: (1)
an earnings or market approach, which bases
the value of the [company] on its market
value, or the price which an outside buyer
would pay for it taking into account its
future earning capacity; and (2) a
comparable sales approach which bases the
value of the [company] on sales of similar
businesses or practices.

Poore v. Poore, 75 N.C. App. 414, 419-420, 331 S.E.2d 266, 270

(1985). The standard of review of a trial court’s business

valuation for equitable distribution is well established: “[O]n

appeal, if it appears that the trial court reasonably

approximated the net value of the [company] and its goodwill, if

any, based on competent evidence and on a sound valuation method

or methods, the valuation will not be disturbed.” Poore, 75

N.C. App. at 422, 331 S.E.2d at 272.

In valuing Superior, the referee considered Wellmaker’s

testimony, Superior’s past earnings, and economic conditions.

The evidence, as described in the Referee’s Final Report, tended

to show yearly gross receipts exceeding $400,000 in all five

years leading up to separation. Defendant does not argue that
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any evidence was inadmissible but instead opposes Wellmaker’s

valuation method itself.

The “income approach” used by Wellmaker “normalized the

earnings of [Superior] for each year . . . and then employed a

capitalization rate to establish what a reasonable investor

would pay for the business[.]” After considering other

approaches, Wellmaker decided to employ the income approach

“because it best captured goodwill.”

To controvert Wellmaker’s valuation, defendant points

vaguely to “economic factors” and his own testimony that he

would be willing to sell Superior for $100,000. In Franks v.

Franks, 153 N.C. App. 793, 795, 571 S.E.2d 276, 278 (2002), this

Court rejected a virtually identical argument and upheld the

trial court’s adoption of an expert’s valuation, stating that

“in contrast to [defendant’s] naked testimony, [plaintiff]

presented the testimony of . . . an expert in forensic

accounting and business valuation, who provided lengthy

testimony . . . .”

While Wellmaker’s valuation did not explicitly consider

certain economic factors or the value of similar companies, and

did not involve the approach approved of by this Court in

Franks, it is consistent with the first method of approximating
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a company’s value suggested in Poore. Being the product of

competent evidence and a sound valuation method, the valuation

complied with standards established by law and was properly

adopted by the trial court.

B. Independent Findings and Review

Next, defendant contends that the trial court failed to

make independent findings and perform independent review of the

referee’s findings. Specifically, defendant argues that Judge

Knight “merely adopted” Referee Cash’s findings and conclusions

and that she failed to consider the evidence and make her own

decisions, a requirement for the trial court when a party has

objected to a referee’s report. We disagree.

With regard to defendant’s contention that the trial court

erred by not making its own findings, we note that, pursuant to

N.C. Gen. Stat. § 50-20, a trial court is required “(1) to

determine which property is marital property, (2) to calculate

the net value of the property, . . . and (3) to distribute the

property in an equitable manner.” Beightol v. Beightol, 90 N.C.

App. 58, 63, 367 S.E.2d 347, 350 (1988). “The court shall make

written findings of fact that support the determination that the

marital property . . . has been equitably divided.” N.C. Gen.

Stat. § 50-20(j) (2013).
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Defendant claims that by adopting the referee’s findings of

fact and conclusions of law, the trial court itself failed to

make findings that satisfy Beightol. Defendant is correct that

the trial court’s equitable distribution judgment did not

restate all the referee’s findings regarding the value and

distribution of the marital assets to be divided. However, the

trial court expressly adopted and incorporated the findings and

conclusions of the referee’s report by saying: “the Final Report

of Referee should be adopted in whole as a final resolution of

the equitable distribution claims of the parties.” Thus, the

equitable distribution judgment satisfied Beightol, and

defendant’s argument is without merit.

With regard to defendant’s claim that the trial court

failed to independently review the referee’s report when

defendant objected, it is well established that

[w]hen exceptions are taken to a referee's
findings of fact and law, it is the duty of
the judge to consider the evidence and give
his own opinion and conclusion, both upon
the facts and the law. He is not permitted
to do this in a perfunctory way, but he must
deliberate and decide as in other cases, use
his own faculties in ascertaining the truth,
and form his own judgment as to fact and
law. This is required not only as a check
upon the referee and a safeguard against any
possible errors on his part, but because he
cannot review the referee's findings in any
other way.
 -9-

Thompson v. Smith, 156 N.C. 345, 345, 72 S.E. 379, 379 (1911).

But, “findings of fact made by a referee, in the absence of

exceptions thereto, are conclusive[.]” Keith v. Silvia, 233

N.C. 328, 333, 64 S.E.2d 178, 183 (1951). If a party objects to

any of the referee’s findings, the trial court “in the exercise

of his supervisory power and under the statute, may affirm,

amend, modify, set aside, make additional findings and confirm,

in whole or in part, or disaffirm the report of a referee.”

Hardaway Contracting Co. v. W. Carolina Power Co., 195 N.C. 649,

651, 143 S.E. 241, 242 (1928).

Here, defendant filed written objections to the Referee’s

Final Report—specifically, defendant objected to the referee’s

valuation of Superior at $400,000. In addition, defendant

objected “but did not request to be heard” on the adoption of

the Referee’s Final Report at the final equitable distribution

hearing before the trial court. However, in order to determine

whether the trial court weighed the evidence and conducted any

type of an independent review, we would need to review the 6

July 2012 hearing before Judge Knight. Pursuant to Rule 9 of

the North Carolina Rules of Appellate Procedure, this Court’s

review is based “solely upon the record on appeal, the verbatim

transcript of proceedings, if one is designated, and any other
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items filed pursuant to this Rule 9.” “The record on appeal is

specifically required to contain so much of the evidence . . .

as is necessary for an understanding of all errors assigned, or

a statement specifying that the verbatim transcript of

proceedings is being filed with the record pursuant to Rule

9(c)(2), or designating portions of the transcript to be so

filed.” Tucker v. City of Kannapolis, 159 N.C. App. 174, 176,

582 S.E.2d 697, 698 (2003). Defendant filed neither a

transcript of the hearing nor any documents to enable us to

determine the quality and extent of Judge Knight’s review of the

Referee’s Final Report, and she was authorized to wholly adopt

it should her own independent review lead to the conclusion that

Referee Cash properly valued Superior, Hardaway, 195 N.C. at

651, 143 S.E. at 242. Thus, our review is limited solely to the

record on appeal, and, as discussed above, we find that

Wellmaker’s valuation of Superior, which was adopted by the

referee and the trial court, was proper. Moreover, “[w]here the

record is silent upon a particular point, it will be presumed

that the trial court acted correctly in performing his judicial

acts and duties.” State v. Fennell, 307 N.C. 258, 262, 297

S.E.2d 393, 396 (1982). Consequently, since defendant failed to

include the transcript of the hearing in the record and we find
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nothing in the record to support his assertion that Judge Knight

performed only a perfunctory review of the Referee’s Final

report, we affirm the trial court’s equitable distribution.

II. Alimony Award

Next, defendant contends that the trial court committed

reversible error in awarding alimony to plaintiff. We disagree.

This Court has held that according to statute, alimony is

“comprised of two separate inquiries. First is a determination

of whether a spouse is entitled to alimony. . . . If one is

entitled to alimony, the second determination is the amount of

alimony to be awarded.” Barrett v. Barrett, 140 N.C. App. 369,

371, 536 S.E.2d 642, 644 (2000) (internal citations omitted).

On appeal, defendant challenges plaintiff’s entitlement to

alimony but does not contest the amount. Specifically,

defendant argues that the trial court erred by concluding as a

matter of law that plaintiff is a dependent spouse, that

defendant is a supporting spouse, and that an alimony award was

equitable.

“The court shall award alimony to the dependent spouse upon

a finding that one spouse is a dependent spouse, that the other

spouse is a supporting spouse, and that an award of alimony is

equitable after considering all relevant factors, including
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those set out in subsection (b) of this section.” N.C. Gen.

Stat. § 50-16.3A(a) (2013). Entitlement to alimony is reviewed

de novo. Barrett, 140 N.C. App. at 371, 536 S.E.2d at 644.

Under N.C. Gen. Stat. § 50-16.1A(2) (2013), a “Dependent

Spouse” is one “who is actually substantially dependent upon the

other spouse for his or her maintenance and support or is

substantially in need of maintenance and support from the other

spouse.” “To properly find a spouse dependent the court need

only find that the spouse's reasonable monthly expenses exceed

her monthly income and that the party has no other means with

which to meet those expenses.” Helms v. Helms, 191 N.C. App.

19, 23, 661 S.E.2d 906, 909 (2008).

Careful review of the evidence in the record indicates that

the trial court properly characterized plaintiff as a dependent

spouse. Specifically, the record establishes that plaintiff’s

monthly expenses amounted to $2,615 and her monthly income

amounted to $1,179.07. In determining plaintiff’s expenses, the

trial court did not consider the desired expenditures submitted

by plaintiff but properly measured her actual reasonable

expenses according to the standard of living established during

the marriage. In determining plaintiff’s income, the trial

court did not include payment from an investment property
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received by plaintiff in the equitable distribution because the

evidence suggests that such payment does not exceed the monthly

mortgage and upkeep costs of the property. The evidence in the

record reveals that plaintiff had an income-expenses deficit of

$1,410.93 per month. Such is sufficient to demonstrate that

plaintiff is a dependent spouse pursuant to N.C. Gen. Stat. §

50-16.1A(2). See Helms, 191 N.C. App. at 23, 661 S.E.2d at 909.

“[E]vidence one spouse is dependent does not necessarily

infer the other spouse is supporting.” Williams v. Williams,

299 N.C. 174, 186, 261 S.E.2d 849, 857 (1980). A “Supporting

Spouse” is one “upon whom the other spouse is actually

substantially dependent for maintenance and support or from whom

such spouse is substantially in need of maintenance and

support.” N.C. Gen. Stat. § 50-16.1A(5) (2013). This Court has

held that “[a] surplus of income over expenses is sufficient in

and of itself to warrant a supporting spouse classification.”

Barrett, 140 N.C. App. at 373, 536 S.E.2d at 645.

The record supports the trial court’s classification of

defendant as a supporting spouse. As was found by the trial

court, the evidence suggests that defendant’s monthly income

amounts to $6,381 and that his monthly expenses are less than

his monthly income. Specifically, defendant’s 2011 tax return
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lists his yearly wages at $42,834 and corporate distributions at

$33,751. Defendant argues that the trial court erred in

determining his monthly income using corporate distributions.

In so arguing, he cites Hill v. Hill, __ N.C. App. __, 748

S.E.2d 342 (2013), in support of his argument that business

distributions are not to be considered income for alimony

purposes. However, rather than classification of corporate

distributions as income, Hill involved classification of

business stock for purposes of an equitable distribution. Hill,

__ N.C. App. at __, 748 S.E.2d at 358. In fact, defendant

claimed the corporate distributions as income in his 2011 tax

returns. Moreover, defendant’s contention that “[o]nce the

corporation was awarded to Mr. Stewart in the equitable

distribution case, the retained earnings of the corporation were

his separate property, not a source of income from which to

award plaintiff alimony” is without merit. Here, the trial

court did not require that defendant pay alimony out of current

retained earnings of Superior awarded to him in the equitable

distribution. Rather, it used corporate distributions from 2011

to estimate defendant’s future income for the purpose of his

classification as a supporting spouse.
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The alimony order states that “Defendant listed on said

Affidavit individual expenses of $1,461.68 per month; that

Defendant’s bank statement reflects he does not maintain these

expenses through his personal banking account; that the majority

of his individual expenses are paid through his corporate bank

account and are not paid through his salary[.]” Defendant does

not dispute this finding, but rather lists various anticipated

costs and argues that his wages are insufficient to meet even

his own monthly expenses. However, the record establishes

otherwise: defendant’s affidavit lists fixed monthly expenses at

$2,277.18 and anticipated individual expenses at $3,570.13, but

his testimony suggests that Superior pays most of his expenses.

Even assuming defendant will incur and personally pay the

anticipated expenses, payment would not exceed his monthly

income. Under either scenario, defendant had an income-expenses

surplus, and the trial court did not err in classifying him a

supporting spouse pursuant to N.C. Gen. Stat. § 50-16.1A(5).

See Barrett, 140 N.C. App. at 373, 536 S.E.2d at 645.

Finally, we consider defendant’s argument that an award of

alimony was not equitable under the circumstances.

Upon finding the spouses “dependent” and “supporting,”

alimony must be awarded if such is “equitable after considering
 -16-
all relevant factors, including those set out in subsection (b)

of this section.” N.C. Gen. Stat. § 50-16.3A(a) (2013); see

also Rhew v. Rhew, 138 N.C. App. 467, 470, 531 S.E.2d 471, 473

(2000). However, the trial court is only required to make

sufficient findings to indicate that the trial judge properly

considered the relevant factors under subsection (b) for a

determination of an alimony award. Rhew, 138 N.C. App. at 471,

531 S.E.2d at 474. The trial court is not required to set out

findings addressing each factor listed in section 50-16.3A(b);

however “the court must provide sufficient detail to satisfy a

reviewing court that it has considered ‘all relevant factors.’”

Id.

Here, the trial court made extensive findings addressing

numerous factors listed under section 50-16.3A(b), including,

but not limited to, the standard of living the parties had

during their marriage, the relative earnings capacity of each

spouse, the amount and source of the parties’ earned and

unearned income, and the fact that plaintiff primarily worked as

homemaker after the birth of their first child. Based on these

and numerous other findings, defendant is unable to establish

that the trial court erred in concluding that an alimony award

in favor of plaintiff was equitable.
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Conclusion

Based on Poore, we conclude that the referee’s valuation of

Superior, which was adopted by the trial court, was proper.

Because defendant failed to include a transcript of the 6 July

2012 hearing before Judge Knight and we find no evidence in the

record to support his argument that she did not perform her own

independent review of the referee’s report, we affirm the trial

court’s equitable distribution order. Moreover, because the

evidence established that plaintiff was a dependent spouse,

defendant was a supporting spouse, and an award of alimony was

equitable, we affirm the trial court’s alimony order.

AFFIRMED.

Judges McGEE and ELMORE concur.

Report per Rule 30(e).