Barlowe v. Barlowe

GREENE, Judge.

Gary 0. Barlowe (plaintiff) appeals from an equitable distribution judgment which unequally distributed the marital property of plaintiff and Marcella D. Barlowe (defendant).

The trial court’s relevant findings are summarized as follows: Two children were born of the marriage, ages seventeen and twelve at the time of the equitable distribution hearing; a consent order entered in November of 1991 gave the parties joint custody of the children with defendant having primary physical custody; plaintiff was granted secondary custody in the form of alternate weekend visitation; since the parties’ separation, defendant and the children have continued to reside in the marital home; plaintiff is employed and had a gross income in 1992 of $14,000.00; defendant is employed part-time and had a gross income of $6,480.00 in 1992; and the value and distribution of the property was to be as noted on the schedules attached to the judgment which listed the various items of marital property and reflected a net valué on each item.

The court concluded that an unequal division of the marital property in favor of defendant was equitable “based upon the need of the defendant who has primary physical custody of the parties’ minor children to the use of the marital home, and based also upon the disparity in the incomes of the parties.” The trial court ordered that the respective parties were the owners of the “property distributed to . . . [them] pursuant to the attached schedules” and directed defendant to pay plaintiff “a distributive award in the total amount of $4,973.50.”

The judgment does not reflect the percentage of the marital estate each party was to receive or did in fact receive. Our review of the judgment and its attachments, however, reveals that after consideration of the cash payment defendant was required to make to the plaintiff, plaintiff received assets having a net value of $12,298.50 and the defendant received assets having a net value of $36,885.50.

The issues are (I) whether the findings of fact support the conclusion that an unequal division of the marital property was equitable, and if so, (II) whether the degree of the division in favor of the defendant was an abuse of discretion.

I

“When evidence tending to show that an equal division of marital property would not be equitable is admitted” in an equitable distribution proceeding, the trial court has wide discretion to divide the property unequally. White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985). “[I]f no evidence is admitted tending to show that an equal division would be inequitable, the trial court must divide the marital property equally.” Id. at 776, 324 N.C. at 832-33.

In this case, the judgment shows that the trial court was convinced that the defendant met her burden of showing by a preponderance of the evidence that an equal division would not be equitable. The trial court concluded, based on findings of fact in the record, that because the defendant had physical custody of the two minor children born of the marriage she had a need to occupy the marital residence and because the plaintiff had an income approximately twice the defendant’s income “an unequal division ... in favor of the defendant” was equitable. Both of the reasons given by the trial court are factors within the scope of N.C. Gen. Stat. § 50-20(c) and thus can support an unequal division. N.C.G.S. § 50-20(c)(1) & (4); see Patterson v. Patterson, 81 N.C. App. 255, 260, 343 S.E.2d 595, 599 (1986); Bradley v. Bradley, 78 N.C. App. 150, 153-54, 336 S.E.2d 658, 660-61 (1985) (no error in unequal distribution based in part upon finding of disparity in parties’ incomes). Thus, the trial court did not abuse its discretion in ordering an unequal division of the marital property “in favor of the defendant.”

II

The plaintiff nonetheless contends that the degree of the unequal division “in favor of the defendant” is arbitrary and thus an abuse of discretion. If the decision is “so arbitrary that it could not have been the result of a reasoned decision,” it must be reversed. White, 312 N.C. at 777, 324 S.E.2d at 833.

In this case, the trial court did not articulate in its judgment the percentage of the division of the marital property that would be distributed to each party. Although such a statement in the judgment would assist this Court in reviewing the trial court’s exercise of its discretion, it is not necessary when, as in this case, we are able to determine from the judgment the percentages of marital property actually awarded to each party. After adjusting the percentages to reflect the distributive award, plaintiff received 25.005% of the marital property and defendant received 74.994% of the marital property. We are unable to say, in light of the Section 50-20(c) factors found by the trial court, that this distribution was not “the result of a reasoned decision” by the trial court.

Affirmed.

Judge JOHN concurs.

Judge JOHNSON dissents.