Brown v. Brown

Judge Greene

dissenting.

I disagree, for the reasons given below in Section I, with the majority that the interim cash award of $400,000 to plaintiff is “in contravention” of N.C. Gen. Stat. § 50-20(il). I agree, for the reasons given below in Section II, that it was not necessary for the trial court to consider “all of the provisions of [s]ection 50-20 in making the award” and to rule “on the objections and exceptions filed by the parties with respect to the referee’s report.” I do note, however, that because the award is not a final adjudication of the merits of the case and because any interim award is subject to a full accounting upon entry of the final equitable distribution judgment, the appeal is interlocutory, does not affect a substantial right, and would ordinarily be dismissed. See Baker v. Rushing, 104 N.C. App. 240, 245, 409 S.E.2d 108, 111 (1991). Because, however, of the important issues presented relating to the proper application of N.C. Gen. Stat. § 50-20(il), I would treat this appeal as a petition for writ of certiorari and grant the writ. N.C.G.S. § 7A-32(c) (1989); see Jerson v. Jerson, 68 N.C. App. 738, 740, 315 S.E.2d 522, 523 (1984).

I

The basic issue presented is whether N.C. Gen. Stat. § 50-20(il) permits a trial judge to make an interim distributive award.

Although Section 50-20(il) is silent on the issue of distributive awards, the intent of the legislature must be determined from an examination of the entire statute of which Section 50-20(il) is a part. See Utilities Commission v. Duke Power Co., 305 N.C. *231, 13, 287 S.E.2d 786, 793 (1982) (“All parts of the [same] act should be considered, and construed together.”). Section 50-20(e), a portion of the statute of which Section 50-20(il) is a part, permits distributive awards when “equitable distribution of all or portions of the marital property in kind would be impractical.” N.C.G.S. § 50-20(e) (Supp. 1992). Although Section 50~20(e) has generally been used in the context of final awards, there is no language in the section that would prohibit its use in the context of interim awards. Furthermore, because distributive awards in the context of Section 50-20(il) can assist the trial court in achieving “equity between the parties” and “facilitate, effectuate or supplement” an interim transfer of marital assets, they are sanctioned by Section 50-20(e). See N.C.G.S. § 50-20(e).

As with all equitable distribution judgments, an interim distributive award must include written findings of fact adequate to support the conclusions of law. N.C.G.S. § 50-20(j) (Supp. 1992); Armstrong v. Armstrong, 322 N.C. 396, 403, 368 S.E.2d 595, 599 (1988). Accordingly, upon a finding that there exists “just cause”1 for an interim order to transfer “the use and possession” of marital assets and upon the additional finding that an interim transfer of marital assets in kind is impractical, the trial court may enter an interim distributive award.

In this case, the trial court found as a fact that there was “just cause” for the interim award and there is evidence in this record to support that finding. Although not defined by the statute, the ordinary meaning of the term includes causes that are “fair and honest,” “based on reasonable grounds,” Black’s Law Dictionary 1001 (4th ed. 1968), “properly due or merited,” and “based on fact or sound reason.” American Heritage Dictionary 694 (2d ed. 1985). See Reed v. Byrd, 41 N.C. App. 625, 628, 255 S.E.2d 606, 608 (1979) (words not defined by statute must be given ordinary meaning). This record reveals that the plaintiff has not had the money to fund this lawsuit which has extended over a decade; plaintiff has worked minimum-wage jobs; she has been deprived of a car for the last five years; she has gone from time to time without heat in the house; she has had access only to a minuscule part of the marital estate; and defendant D.T. Brown, Jr. has had access *24to and control of virtually all of the income-producing marital assets since their separation in 1981.

The trial court was also required, as a prerequisite to an interim distributive award, to include in its order a finding of fact that an in kind transfer of marital assets was impractical. Although there is no such finding in this order, this omission by the trial court cannot serve as a basis for reversing the award because defendants’ assignment of error is inadequate to preserve this error for review. The relevant assignment of error, “[t]he Trial Court’s award . . . without evidence to support the facts, facts to support the conclusions, and conclusions to support its Order,” fails to direct this Court to the findings challenged as inadequate and is no more than a broadside attack on the order of the court and thus ineffective. N.C.R. App. P. 10(c)(1) (1992); see also Jones v. Shoji, 110 N.C. App. 48, 51, 428 S.E.2d 865, 866-67 (1993). In any event, all the evidence in this record would support a finding that it would have been impractical to order the defendants to transfer a portion of the paving and construction company to the plaintiff. Such a transfer in kind would only have disrupted the operation of the construction company, which was a partnership owned by the plaintiff’s former husband and his father and brother. Furthermore, converting the interest in the partnership to usable cash would have been most difficult.

II

The issue presented is whether an interim award under Section 50-20(il) must be determined, as defendants argue, consistent with every other “provision of Section 50-20 and the considerable body of equitable distribution caselaw.”

An interim allocation of marital assets is in the nature of a preliminary injunction. As such, the matter can be decided on verified pleadings and affidavits, N.C.G.S. § 1-485 (1983); State of North Carolina ex rel. Morgan v. Dare To Be Great, Inc., 15 N.C. App. 275, 276, 189 S.E.2d 802, 803 (1972), “but the court may direct that the matter be heard wholly or partly on oral testimony or depositions[,]” N.C.G.S. § 1A-1, Rule 43(e) (1990); and the moving party is required to make only a prima facie showing, that is that her ultimate success in the equitable distribution proceeding is a likelihood, at least to the extent of the interim award requested. See Ridge Community Investors, Inc. v. Berry, 293 N.C. 688, 701, 239 S.E.2d 566, 574 (1977). Accordingly, the procedure utilized and *25the evidence considered by the trial court differs substantially from that required for the entering of a final equitable distribution judgment. For example, it is not necessary for the trial court to accept evidence on the distributional factors of Section 50-20(c). To hold otherwise would convert the interim award proceeding into a full trial on the merits and thus preclude any relief until the parties are fully prepared to proceed to a full scale trial and the case can be scheduled for trial. This summary proceeding is further justified by the language of the statute which requires “a full accounting when the property is ultimately allocated in an equitable distribution judgment.” N.C.G.S. § 50-20(il) (Supp. 1992).

In this case, the trial court considered, in addition to oral and written arguments, a referee’s report which valued the marital property at $2,400,000. Thus, based on the value of the marital estate and the fact that there was no evidence of any marital debt, there was a likelihood that the plaintiff would ultimately prevail on the merits at least to the extent of $400,000.

Furthermore, because of the preliminary nature of the interim award proceeding, it was unnecessary for the trial court to rule on defendants’ objections and exceptions to the referee’s report prior to ordering an interim allocation of marital assets.

N.C. Gen. Stat. § 1A-1, Rule 53(g)(2) requires the trial judge, upon exception duly noted by a party, to consider the evidence and “give his own opinion and conclusion, both upon the facts and the law.” N.C.G.S. § 1A-1, Rule 53(g)(2) (1990); Quate v. Caudle, 95 N.C. App. 80, 83, 381 S.E.2d 842, 844 (1989). This duty, however, applies only as a prerequisite to the entry of a final judgment based on the report. In the case presented, the award was interim in nature and any findings and conclusions entered by the trial court are “not res adjudicata on the final hearing.” Schloss v. Jamison, 258 N.C. 271, 276, 128 S.E.2d 590, 594 (1962). Thus, the defendants will have ample opportunity to have their objections and exceptions ruled on by the trial court prior to the entry of the final judgment of equitable distribution.

Based on the above analysis, I would affirm the order of the trial judge granting plaintiff’s motion for an interim cash award under Section 50-20(il).

. Because the determination of “just cause” is reached by natural reasoning, not by application of fixed rules of law, it is an ultimate finding of fact, not a conclusion of law. See Quick v. Quick, 305 N.C. 446, 452, 290 S.E.2d 653, 658 (1982).