NO. COA14-41
NORTH CAROLINA COURT OF APPEALS
Filed: 16 September 2014
LOIS A. SAULS,
Plaintiff,
v. Beaufort County
No. 06 CVD 1632
ROLAND GARY SAULS,
Defendant.
Appeal by defendant from orders entered 15 February 2013
and 11 July 2013 by Judge Darrell B. Cayton, Jr. in Beaufort
County District Court. Heard in the Court of Appeals 13 August
2014.
Attorney Jonathan McGirt, for plaintiff.
Attorney W. Gregory Duke, for defendant.
ELMORE, Judge.
Defendant timely appeals from: 1.) an equitable
distribution order entered 15 February 2013 ordering defendant
to pay plaintiff an in-kind distribution of $178,667.49 in cash
and check proceeds and 2.) an order entered 11 July 2013 denying
defendant’s motion for a new trial pursuant to Rule 59 of the
North Carolina Rules of Civil Procedure. After careful
consideration, we affirm.
I. Facts
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Lois A. Sauls (plaintiff) and Roland Gary Sauls (defendant)
married each other on 6 October 1963. Over the years, defendant
accumulated large sums of cash, which he kept inside a safe in
the parties’ former marital residence. Although plaintiff knew
where the combination to the safe was hidden, she did not access
the safe unless directed to do so by defendant. In September
2005, the parties temporarily separated. Around this time,
plaintiff attempted to access the safe on her own but the
combination and keys had been removed from their usual hiding
place. Defendant was the only other person who knew where the
combination and keys were hidden.
The parties reconciled in January 2006. At that time,
defendant had four checks, each for $10,000, issued and made
payable to plaintiff. On two separate occasions, defendant
drove plaintiff to the bank, sent her inside to endorse and cash
one of the checks, and then plaintiff gave defendant the cash
proceeds, which he “needed . . . for the business.” Plaintiff
testified that she never cashed the two remaining checks and
defendant always kept the checks in his possession. However,
defendant claimed plaintiff cashed the remaining two checks in
the same way as she did the first two and that plaintiff had
just “forgot some things.”
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The parties finally separated on 13 August 2006. On 13
December 2006, plaintiff filed a complaint asserting claims for
post-separation support, alimony, divorce from bed and board,
equitable distribution, and attorneys’ fees. Defendant filed an
answer and a counterclaim for equitable distribution. In spring
2008, the safe was opened by a locksmith in the presence of the
parties and their attorneys. There was no cash in the safe.
On 30 January 2009, the parties divorced. Plaintiff
subsequently dismissed the complaint against defendant with the
exception of her claim for equitable distribution, which was
heard in Beaufort County District Court on 29 May 2012. The
trial court found that defendant had removed from the marital
residence $330,000 in cash and $20,000 in certified checks,
which were marital assets. The trial court entered an order for
equitable distribution and, in part, ordered that defendant pay
plaintiff $178,667.49 as an in-kind distribution of cash and
certified checks that defendant took from the former martial
estate.
II. Analysis
a.) Findings of Fact
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First, defendant argues that the trial court erred in
finding as fact that the parties had $350,000 in cash and checks
as of the date of separation. We disagree.
“In reviewing a trial judge’s findings of fact, we are
‘strictly limited to determining whether the trial judge’s
underlying findings of fact are supported by competent evidence,
in which event they are conclusively binding on appeal, and
whether those factual findings in turn support the judge’s
ultimate conclusions of law.’” State v. Williams, 362 N.C. 628,
632, 669 S.E.2d 290, 294 (2008) (quoting State v. Cooke, 306
N.C. 132, 134, 291 S.E.2d 618, 619 (1982)); see also Sisk v.
Transylvania Cmty. Hosp., Inc., 364 N.C. 172, 179, 695 S.E.2d
429, 434 (2010) (“‘[F]indings of fact made by the trial judge
are conclusive on appeal if supported by competent evidence,
even if . . . there is evidence to the contrary.’” (quoting
Tillman v. Commercial Credit Loans, Inc., 362 N.C. 93, 100-01,
655 S.E.2d 362, 369 (2008))).
It is the duty of the trial judge “to weigh and consider
all competent evidence, and pass upon the credibility of the
witnesses, the weight to be given their testimony and the
reasonable inferences to be drawn therefrom.” In re Whisnant,
71 N.C. App. 439, 441, 322 S.E.2d 434, 435 (1984) (citation
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omitted). “It is not the function of this Court to reweigh the
evidence on appeal.” Garrett v. Burris, ___ N.C. App. ___, ___,
735 S.E.2d 414, 418 (2012), aff'd per curiam, 366 N.C. 551, 742
S.E.2d 803 (2013).
The record contains competent evidence to support the trial
court’s finding regarding the value of the cash and checks.
Most notably, under “Schedule F” of the pre-trial order
(“Property about which there is a disagreement as to
classification, with each party’s contentions as to the value
and distribution.”), neither party disputed the value of the
items listed as “$330,000 cash” and “2 Certified Checks in
Wife’s Name.” Defendant only contended that the cash should be
split in half because it was marital property, and that he did
not know the location of the checks.
Additionally, although plaintiff never counted how much
money was in the safe, she testified that defendant told her the
amount was “three-thirty.” Defendant testified that, in the
safe, he had “ten plus” envelopes each with “thirty or forty
thousand dollars in an envelope at one time.” Defendant also
stated that the last time he counted the cash was late in the
summer of 2006, just before the parties separated, and the safe
contained $330,000.
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Moreover, plaintiff testified that she only cashed two of
the four $10,000 checks. Although the parties offered
conflicting testimony as to whether defendant had the two
remaining checks, the trial court found more credible
plaintiff’s testimony that she never cashed the remaining checks
and that defendant had them in his possession. Thus, the trial
court did not err in finding as fact that the parties had
$350,000 in cash and checks as of the date of separation.
b.) “Presently Owned”
Next, although defendant offers no legal authority for his
argument, he maintains that because the cash and checks were not
found in the safe, the trial court could not find that they were
“presently owned” by the parties on the date of separation. We
disagree.
Equitable distribution is vested in the
discretion of the trial court and will not
be disturbed absent a clear abuse of that
discretion. Only a finding that the
judgment was unsupported by reason and could
not have been a result of competent inquiry,
or a finding that the trial judge failed to
comply with the statute, will establish an
abuse of discretion.
Wiencek-Adams v. Adams, 331 N.C. 688, 691, 417 S.E.2d 449, 451
(1992) (citations omitted).
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Marital property is “all real and personal property
acquired by either spouse or both spouses during the course of
the marriage and before the date of the separation of the
parties, and presently owned, except property determined to be
separate property or divisible property[.]” N.C. Gen. Stat. §
50-20(b)(1) (2013). “The spouse claiming that the property is
separate bears the burden of proof, as under N.C. Gen. Stat. §
50-20(b)(1), it is presumed that all property acquired after the
date of marriage and before the date of separation is marital
property[.]” Allen v. Allen, 168 N.C. App. 368, 374, 607 S.E.2d
331, 335 (2005) (citation and quotation marks omitted). This
Court has interpreted “presently owned” to mean property owned
by either party as of the date of separation. See Lawrence v.
Lawrence, 100 N.C. App. 1, 16-17, 394 S.E.2d 267, 275
(1990)(ruling that the trial court erred in classifying certain
funds as marital property where the funds had been used to
purchase assets that were not owned by either party on the date
of separation).
Here, the trial court found that defendant removed from the
marital home $350,000 in cash and checks, which were marital
funds. It is irrelevant whether the cash and checks were
actually in the safe on the date of separation, especially since
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the record is devoid of any evidence that the cash or checks
were ever owned by someone other than plaintiff or defendant.
Thus, we hold that the cash and checks were “presently owned,”
and defendant’s argument fails.
c.) In-Kind Distribution
Finally, defendant argues that the trial court erred by
ordering an in-kind distribution1 of $178,667.49 without first
considering whether defendant had sufficient liquid assets to
satisfy such an award. We disagree.
N.C. Gen. Stat. § 50–20(e) (2013) “creates a presumption
that an in-kind distribution of marital or divisible property is
equitable, but permits a distributive award ‘to facilitate,
effectuate, or supplement’ the distribution.” Allen, 168 N.C.
App. at 372–73, 607 S.E.2d at 334. “[I]f the trial court
determines that the presumption of an in-kind distribution has
been rebutted, it must make findings of fact and conclusions of
law in support of that determination.” Urciolo v. Urciolo, 166
N.C. App. 504, 507, 601 S.E.2d 905, 908 (2004). Should a party
1
The difference between a “distributive award” and an “in-kind
distribution” is explained in 1 LLOYD T. KELSO, N.C. FAMILY LAW
PRACTICE § 6:60 (2008): “An ‘in-kind distribution’ refers to a
distribution of the property itself as opposed to a substitute
for the property such as a cash award equal to the value of the
property.” Id. § 6:60, at 447.
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successfully rebut the equity of an in-kind distribution, a
trial court may order a distributive award pursuant to N.C. Gen.
Stat. § 50-20(c) (2013). This statute sets forth distributional
factors that the trial court must consider before ordering a
distributive award. Id. One of those factors is “[t]he liquid
or nonliquid character of all marital property and divisible
property.” Id. In other words, “[t]he trial court is required
to make findings as to whether the defendant has sufficient
liquid assets from which he can make the distributive award
payment.” Urciolo, 166 N.C. App. at 507, 601 S.E.2d at 908
(emphasis added).
Here, the trial court specifically ordered an in-kind
distribution of the marital funds, but defendant did not rebut
the presumption that an in-kind distribution of the cash and
checks would be equitable. As such, the trial court was not
required to consider the distributive award factors enumerated
under N.C. Gen. Stat. § 50-20(c), including whether defendant
had sufficient assets to pay the award. Furthermore, because
the trial court specifically ordered defendant to pay
$178,667.49 from the $350,000 in cash and check proceeds in his
possession, it is clear that the same liquidity concerns raised
with distributive awards are not present in this case.
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III. Conclusion
In sum, the trial court did not err in finding as fact that
the parties had $350,000 in cash and checks as of the date of
separation, or in ordering defendant to pay plaintiff
$178,667.49 in cash or check proceeds as an in-kind
distribution. The trial court’s findings of fact are supported
by competent evidence in the record, and it was not required to
make a specific finding that defendant had sufficient liquid
assets to pay the in-kind distribution. Accordingly, the trial
court’s equitable distribution order and order denying
defendant’s motion for a new trial are affirmed.
Affirmed.
Judges CALABRIA and STEPHENS concur.