Haywood v. Haywood

Judge WYNN

dissenting in part.

This is an action seeking review of an equitable distribution judgment and order. The parties were married for six years before their separation in 1984. There were no children born of the marriage. The plaintiff-husband in this action brought the original claim for absolute divorce, and the defendant-wife brought a claim for alimony, both in July 1985.

Following the trial court’s award of temporary alimony and equitable distribution on 22 December 1987, plaintiff moved to amend the findings of fact and for a new trial. Plaintiff also moved to stay enforcement of the alimony and equitable distribution judgments pending a hearing on the motions. These motions were denied.

Plaintiff then appealed from the equitable distribution judgment and order and from the denial of his motions. This Court, in Haywood v. Haywood, 95 N.C. App. 426, 382 S.E.2d 798, cert. *102denied, 325 N.C. 706, 388 S.E.2d 454 (1989), reversed the order for temporary alimony, because temporary alimony was awarded improperly, vacated the equitable distribution order and reversed the order for attorney’s fees. The case was remanded to the trial court for new findings of fact and conclusions of law to be made on the existing record without taking further evidence. On 7 September 1990, the trial court entered a new equitable distribution judgment and order. It is from this judgment and order that the plaintiff appeals.

Because I believe that the trial judge correctly distributed the following properties of the parties, I respectfully dissent from the majority’s holding to the contrary.

I.

The Marital Home

On review before this Court, “[a]n equitable distribution order should not be disturbed unless ‘the appellate court, upon consideration of the cold record, can determine that the division ordered . . . has resulted in an obvious miscarriage of justice.’ ” Morris v. Morris, 90 N.C. App. 94, 97, 367 S.E.2d 408, 410 (1988) (quoting Alexander v. Alexander, 68 N.C. App. 548, 552, 315 S.E.2d 772, 776 (1984)). Further, when the appellant contends that the findings of fact are not supported by the evidence, we look to see whether the findings are supported by any competent evidence in the record. Id.

The record indicates that there was competent evidence to support the finding of fact by the trial court that the marital home located at Plymouth Road was marital property rather than the separate property of the plaintiff. Plaintiff argues as he testified at trial, that the Plymouth Road house was purchased with separate funds and is therefore, separate property. However the record indicates that the trial court made detailed and specific findings of fact with regard to the property, and it concluded that, at the date of separation, the parties were owners as tenants by the entireties of the Plymouth Road house, by virtue of a deed from Thunder Oil Company, a corporation predominantly owned by the plaintiff’s parents. The court also concluded that the conveyance from Thunder Oil Company contained no reservation of interest and was a gift to the marriage.

*103Our Supreme Court, in McLean v. McLean, 323 N.C. 543, 374 S.E.2d 376 (1988), held that by placing title to property purchased with separate funds in both parties’ names as tenants by the entirety, the presumption is that there has been a gift of separate property to the marital estate. As such, I believe that the evidence presented at trial was competent to support this finding of fact by the trial court.

Significantly, the majority concludes that the naked testimony by the plaintiff that he did not intend to make a gift of his separate property was “some competent evidence to rebut the presumed gift of his separate property to the marital estate.” In my opinion, the majority’s ruling in this respect represents a significant departure from previous holdings of our courts which have required that a presumption of a gift of separate property to the marital estate is rebuttable only by a showing of clear, cogent, and convincing evidence. See id. at 552, 374 S.E.2d at 382; Lawrence v. Lawrence, 100 N.C. App. 1, 394 S.E.2d 267 (1990). Moreover, whether a party has succeeded in rebutting the presumption of a gift to the marital estate by clear, cogent, and convincing evidence is a matter left to the trial court’s discretion. Lawrence, 100 N.C. at 9, 394 S.E.2d at 270. Indeed, Lawrence, a case cited by the majority on this issue, states emphatically that “this court has affirmed findings that property is marital even though a donor spouse testified that a gift was not intended.” Id. See also Thompson v. Thompson, 93 N.C. App. 229, 232, 377 S.E.2d 767, 768-69 (1989) (trial court did not err in determining that parties’ home was marital property where only competent evidence that a gift was not intended was donor’s testimony); Draughon v. Draughon, 82 N.C. App. 738, 347 S.E.2d 871, disc, review denied, 319 N.C. 103, 353 S.E.2d 107 (1987) (although donor spouse testified that she did not intend a gift there was evidence to support trial court’s finding that the property was marital). The offshoot of the majority’s ruling today is that any naked testimony by a party which tends to support that party’s claim of separate property in equitable distribution cases, will require a specific finding by the trial court that it has considered that specific part of the testimony. In Coble v. Coble, 300 N.C. 708, 268 S.E.2d 185 (1980), our Supreme Court required only that the trial court “make findings of those specific facts which support its ultimate disposition of the case . . . .” Id. at 712, 268 S.E.2d at 189. The Coble decision, in my opinion, does not require the trial judge to find facts regarding all evidence produced by a *104party at trial. In instances such as the one at hand, where it is clear that the trial judge’s determination that the property should be classified as marital was based on competent evidence, to require the court to make additional findings would place a needless burden on our trial judges.

For the reasons stated above, I similarly disagree with the majority that the testimony of the donor-plaintiff that he did' not intend to make a marital gift of the 200, 12th Street lot requires an additional finding of fact because it was “some competent evidence to rebut the presumption of gift . . . .” Clearly, the evidence produced indicating that the property was titled by the entireties was sufficient to support the trial court’s conclusion of law that the property was marital. Again, I would hold that the trial court did not err in determining that this property was marital where the only competent evidence that a gift was not intended was the plaintiff-donor’s testimony.

II.

100 Gold Krugerrands

Next, the majority concludes that the trial court erred in making the following classification:

The 100 gold Krugerrands listed by the parties as being in the plaintiff’s possession were purchased during the marriage (PI. Ex. 123) and placed in a deposit box in the Bank of Nova Scotia branch in Toronto, Canada, with the joint right of withdrawal, based on the testimony of the defendant, and are marital property.

The plaintiff argues and the majority agrees that the precious metals held in a safety deposit box in Toronto, Canada are his separate property. However, the record contains evidence that the safety deposit box was held under the joint names of the plaintiff and defendant. The defendant had a key to the safety deposit box at all times and was able to go in and out of the box at will. Moreover, plaintiff was unable to sufficiently trace the source of the funds with which he contends that he purchased the precious metals. This is competent evidence to support the trial court’s finding of fact that the precious metals were indeed marital property and not the plaintiff’s separate property.

*105III.

Defendant’s Master’s Degree

The majority upheld the trial court’s finding that the defendant’s master’s degree in business and economics was not property for purposes of equitable distribution. With that portion of the majority opinion, I agree. However, the majority nonetheless concludes that the trial court erred in failing to make findings regarding the plaintiff’s direct and indirect contributions to defendant’s degree. For the following reasons, I dissent from that part of the majority’s holding.

Generally, one spouse’s contribution to the attainment of a professional degree by the other is a distributional factor to be considered under § 50-20(c)(7), and if the efforts are substantial they can warrant an unequal distribution of the marital assets. See Geer v. Geer, 84 N.C. App. 471, 353 S.E.2d 427 (1987). The party seeking an unequal division bears the burden of showing, by a preponderance of evidence, that an equal division would not be equitable. White v. White, 312 N.C. 770, 776, 324 S.E.2d 829, 832 (1985). Moreover, N.C. Gen. Stat. § 50-20(c)(7) requires only that the court consider “[a]ny direct or indirect contribution made by one spouse to help educate . . . the other spouse.”

The majority cites Geer for the proposition that one spouse who makes sacrifices and career enhancing contributions to the other should be reimbursed for the direct and indirect costs incurred. In the Geer equitable distribution action, the husband and wife were divorced shortly before the wife obtained a medical degree. However, unlike the plaintiff in the case at bar, the husband in Geer was able to point to concrete examples of the sacrifices that he made for his wife’s education, which included interrupting his career, moving to a different state for his wife to attend medical school, paying for his wife’s medical school supplies, assuming a greater role in child care and homemaking activities. The plaintiff, in the case at bar, testified that he made “numerous sacrifices” for his wife although the only evidence of these sacrifices is a general list of household expenditures without any itemization of what each expenditure represented. The defendant testified that the plaintiff had never supported her and offered no direct financial contribution. This, in my opinion, was competent evidence to support the finding of fact by the trial court that *106the plaintiffs contributions to the defendant’s degree did not warrant an unequal distribution of the marital assets.