Romulus v. Romulus, 215 N.C. App. 495

Married 27 August 1988; separated 1 July 2006.
Trial on equitable distribution, alimony, and child support conducted 30 June 2009 to 9 October 2009; equitable distribution order entered 4 March 2010; alimony denial order entered 5 March 2010.
Equitable distribution award to plaintiff: $629,840 payable over seven years; alimony denied; child support awarded.
Appeals: defendant challenges classification/valuation of property; plaintiff cross-appeals on alimony denial based on alleged marital misconduct.
Issues center on (i) post-separation appreciation of the dental practice as divisible property, (ii) Darlington Avenue property classification, (iii) post-separation rental income/loss valuation, and (iv) alimony denial based on illicit sexual behavior.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Post-separation appreciation of dental practice is divisible property?	Presumption of divisibility controls unless rebutted.	Appreciation was due to defendant’s post-separation actions; not divisible.	Divisible property; presumption not rebutted; remand for related questions.
Darlington Avenue property classification: separate or marital?	Property remains plaintiff's separate property unless rebutted.	Presumption of marital gift applies from entireties title; donor intent undermines it.	Remand for additional findings of fact and law; Darlington classification reversed for now.
Post-separation rental income/loss as divisible property	Income from investment properties is divisible property.	Some items lacked adequate findings; challenge to valuation.	Findings supported; valuation as to challenged items upheld; remand not necessary for those items.
Illicit sexual behavior as bar to alimony	Alimony should not be barred by plaintiff’s conduct.	Illicit sexual behavior by plaintiff may bar alimony under statute.	Alimony denied due to plaintiff's illicit sexual behavior; cross-appeal affirmed on this point.
Date of separation for alimony purposes	Separation evidenced by intent to cease cohabitation.	No clear separation; court’s credibility determinations control.	Trial court’s separation finding affirmed; no reversible error.

Wirth v. Wirth, 193 N.C.App. 657 (2008) (presumption of post-separation appreciation as divisible unless rebutted)
McLean v. McLean, 323 N.C.543 (1988) (marital gift presumption; rebuttable only by clear, cogent, convicting evidence)
Thompson v. Thompson, 93 N.C.App. 229 (1989) (donor’s testimony alone not sufficient to rebut presumption; weight to trial court)
Draughon v. Draughon, 82 N.C.App. 738 (1986) (trial court credibility weight; evidence supports marital property determination)
Lawrence v. Lawrence, 100 N.C.App. 1 (1990) (donor testimony considered with discretion; support rebuttal standard)
Warren v. Warren, 175 N.C.App. 509 (2006) (donor testimony context of marital gift presumption; obiter dicta regarding sufficiency)
Haywood v. Haywood, 106 N.C.App. 91 (1992) (donor testimony weight to trial court; discretion preserved)