*1 APPEALS OF IN THE COURT 166 v. NELSON ESTATE OF App. (2006)] [179 Profile’s court’s denial of The trial by Commission. the Industrial reverse and re- I vote to summary judgment is error. for motion spectfully dissent. through by NELSON, JANICE his co-executors

ESTATE OF MELVIN Decedent, NELSON, Defendant NELSON, LEE CARRIE AND LIBBY Plaintiff BREWER No. COA05-1267 2006) August (Filed 16 by the entire- distribution — tenancies Divorce— after ties — death estate owned as

Three of real even subject equitable distribution property and marital were separation but before resolu- parties died after thoügh one of the Equitable claims. equitable distribution the divorce and tion of party, and, under death of a upon the does not abate distribution surviving spouse as the entireties, defendant doctrine of original con- virtue of the the whole interest succeeded to the classification do not control veyance. Distributional factors Bryant dissenting. Judge February judgment entered 18

Appeal by plaintiff from a County in the District Court. Heard Jacquelyn in Lee Judge L. Lee May Appeals Court Silverman, Silverman, by Post, Jonathan

Staton, Doster, & plaintiff-appellant. Ponton, LLP, by K. Edward Greene Robbins, &

Wyrick, Yates Hager, by Richard B. Hager, B. P.A. and Richard for defendant- appellee. STEELMAN,Judge. appeals judgment from (plaintiff) Nelson

The Estate of Melvin ex-wife, Carrie Lee February declaring decedent’s entered 18 items of real owner of three (defendant), the Nelson survivorship. virtue of

IN THE COURT OF APPEALS

ESTATE OF NELSON v. NELSON *2 Melvin Nelson and defendant married on 3 October During 1940. marriage, parties acquired course of their property, real including: parties’ marital residence Road, at 1615 Carbonton Sanford, duplex North Carolina and a Edgewater at 119 and 121 Street, Port, parties New North Carolina. property The owned the real entirety. as tenants August 1999, parties On 24 separated. Upon separation, Mr. Nelson moved out and defendant remained in possession of the marital home. In Mr.Nelson filed an action for equitable absolute divorce and requested distribution and an interim duplex. distribution of the Mr. Nelson died on 2 March with the parties’ claims for divorce and distribution still pending. On February 2005, the trial court entered an distribution judgment. The court found the sep- three tracts of real estate to be the property arate defendant, with a fair $381,000.00. market value of It further property found the divisible marital to have a net value of $135,451.00. upon Based distributional factors found in N.C. Gen. Stat. 50-20(c) (2006), the trial equal court concluded an division was and awarded property plain- almost all of the marital tiff. The trial judge parties found the had four children. Melvin Nelson’s will left his entire estate to the two children who “housed years cared for Decedent for several after Decedent and separated.” appeals. Defendant Plaintiff appeal The sole issue on is properly whether the trial court clas- sified the estate, three tracts of real owned the Nelsons as tenants at death, the time of decedent’s sepa- as defendant’s rate For the herein, reasons stated we reverse the order of the trial court.

The trial court made following findings respect of fact with the three tracts of real estate:

7. During the course of prior their to the date of

separation, Decedent and Defendant the following items of real as tenants (hereinafter collectively referred to as property”): “the real A. Road, Sanford, 1615 Carbonton Carolina; North Edgewater Street, B. 119 Newport, Carolina; North Edgewater Street, Newport, C. 121 North Carolina. 8. The real present has a net fair market value of $381,000. IN THE COURT OF APPEALS

ESTATE OF NELSON v. NELSON By survivorship, Defendant became the right virtue of the when Decedent of the real on March owner died. separate property, Defendant’s as defined

10. The real 50-20(b)(2). in G.S. § the three judgment does not contain a conclusion of law that separate property defendant, does real estate are the but

tracts of hereby prop- of the real “Defendant is declared to be the owner hold: erty by survivorship.” judgment does not virtue of the sep- finding that the became the state the basis of the court’s the death of Melvin Nelson. arate *3 statutory question presented interpretation of N.C. involves a Gen. Stat. 50-20. § statutory statute, apply the rules of interpreting

When a we must Campbell 476, 484, 259, Church, 298 N.C. S.E.2d construction. statutory 558, principal rule of construction is (1979). 564 “may legislature’s intent controls. Id. That intent be that the purpose statute, nature and and the con- inferred from the sequences follow, respectively, from various con- which would Homes, Inc., 727, 329 N.C. structions.” Alberti v. Manufactured always 732, 819, (1991). 822 “Acourt should construe 407 S.E.2d provisions prevent in will the of a statute a manner which tend to circumvented,” otherwise, problems being it from which prompted passage would be corrected. the statute’s statutory Campbell, 484, addition, In 298 N.C. at 259 S.E.2d at 564. exceptions narrowly Publishing must be construed. Co. v. Board 37, 580, Education, App. 47, (1976). N.C. 223 S.E.2d 586 29 Hope Hosp., Servs., Good Inc. v. N.C. Health and Human 175 N.C. App. 309, 311-12, 315, (2006). Because this involves a 623 S.E.2d 318 statutory question construction, appropriate standard of Airport Urbine, review is de novo. Piedmont Triad Auth. v. 354 N.C. 336, 338, 554, 331, (2001). S.E.2d 332 equitable distribution, required

In an action for the trial court is analysis: sep- three-step identification marital and 1) to conduct a property; 2) arate determination of the net market value of the mari- prop- separation; 3) of the date of and division of the tal as erty parties. Willis, App. 546, 550, 358 between the Willis v. 86 N.C. carefully 571, steps Failure to follow these and in (1987). may inadequate, sequence findings and conclusions erro- render OF APPEALS

IN THE COURT v. NELSON ESTATE OF NELSON N.C. App. 342, 345, 307 S.E.2d Turner, neous, or both. Turner 407, separate, or the fact classifying real marital

When both, spouse, or in is not con- title is in one or the other legal that Johnson, 346 S.E.2d trolling. Johnson v. Rather, property according is to the definitions classified 50-20(b). separate property contained in N.C. Stat. marital and property as “all real 50-20(b)(2) Gen. Stat. defines acquired by or personal spouse marriage before and spouse by descent, gift during the acquired by bequest, devise, or Further, property acquired during marriage marriage.” course of the personal property and property and is defined as “all real is marital spouses during the course of mar- acquired by either or both presently parties, and riage before the date or except separate property divis- owned, property determined (2) (4) in subdivision or of this sub- ible accordance with presumption 50-20(b)(l). Thus, there is a section.” N.C. Gen. Stat. property acquired during that 50-20(b) under N.C. Gen. Stat. § 50-20(b)(l). The trial property. is marital N.C. Gen. Stat. that of real estate finding of fact 7 establishes the three tracts court’s marital At this acquired during marriage were were separate property spouse asserting this point, the was preponderance of the evidence must show devise, descent, course of the acquired by “bequest, gift *4 Atkins, separation.” date of Atkins marriage before the The transfer of title result- App. 199, spouse property does not transform marital ing the death of one from separate property. into the note the of Melvin Nelson occurred We first that death after requirement Therefore, it meet the

separation parties. of the cannot the acquired the date of of property be “before the 50-20(b)(l). parties.” § N.C. Gen. Stat. tenancy by the unity person in a

Second, of the of because property by the spouse of owned entirety, is seized of the whole each conveyance. entirety the of from time belongs to the [spouse], one the whole estate Upon the death of by original grant or devise purchase under the other of survivorship he she not otherwise —because or by virtue of —and one who died beginning, whole the the was seized of the from THE IN COURT OF APPEALS

ESTATE OF NELSON N.C. had no estate which was descendible or It devisable. does not either, descend the death of longest liver, being but the already whole, seized of the is the owner the of entire estate. Bass, 200, 204-05, Davis v. N.C. 124 S.E. “The significance survivorship surviving doctrine is that the spouse by does not take reason the Intestate Succession Act by in North Carolina spouse’s or reason of the will, deceased but by conveyance takes original by virtue of the that created the entirety.” Hetrick, the 1 Patrick K. Webster’s Real Estate Law in Carolina, 7-19, North (5th at 226 ed. 1995). Thus, § defendant’s ownership parcels by bequest, devise, did not descent, arise gift. or acquire As defendant did not title to these ain by prescribed they manner statute, separate property are not as Gen. defined N.C. Stat. 50-20(b)(2), § but remain marital purposes Further, distribution. since the acquired was and defendant suc- ceeded property by whole in the interest virtue origi- conveyance, nal it was not subsequent to the separation. date of provisions argues

Defendant of N.C. Gen. Stat. 50-20(c)(llb)(b) legislative § reflect a intent that taken surviving tenancy by under separate prop- erty. Gen. Stat. 50-20(c)(llb)(b) a distributional factor that “Property reads as follows: held as joint or rights survivorship tenants with passing surviving spouse to the spouse.” due to the death of a Stat. 50-20(c)(llb)(b). above, As discussed the trial court must follow three distinct ana- lytical steps in making an only distribution award. It is after has been classified as marital applies the trial court the distributional factors found in N.C. Gen. 50-20(c) Stat. to effect an distribution of marital may This statute consider, contains number factors the trial court in any but nowhere N.C. Gen. Stat. 50-20is intent manifested that distributional factor would control the classification of under subsection (b). *5 Assembly

In 50-20, the General amended N.C. Gen. Stat. § adding provide subsection to(1) equitable pending action for “[a] distribution shall not abate party.” death of a 2001N.C. Sess. Laws ch. abrogated Supreme § 2. This statute Court’s deci- Brown, equitable sion in Brown which held an distribution claim OF APPEALS

IN THE COURT NELSON ESTATE OF 220, 227, party. a upon the death of abated was to allow an purpose of this amendment fundamental parties. of of the survive the death one distribution claim to entirety is by the a survivor under a property passing If to purpose. separate property, it defeats this held to be by the parcels real estate owned as tenants the three We hold subject We property, distribution. entirety are marital to entry and remand this matter the trial court’s decision reverse property, and then parcels as marital classifying an these three order full property after consideration equitably distributing the marital 50-20(c). in N.C. Gen. Stat. factors found appropriate distributional ANDREMANDED. REVERSED concurs.

Judge CALABRIA separate opinion. in a Judge BRYANTdissents BRYANT, dissenting. Judge, acquire ownership of majority did not contends defendant “bequest, devise, or nor has parcels land descent”

the three ownership upon gift” and there- separate a “asserted based separate property as defined fore, not defendant’s are follow, respectfully dissent from I For the reasons that statute. opinion. majority sets forth Carolina General Statutes 50-20 of the North Section purposes of “separate” property for and of “marital” definitions per- as “all real and Marital is defined equitable distribution. spouses spouse during both acquired or sonal either par- the date marriage before course owned, except property to ties, presently determined (b) (1) 50-20 . . .” N.C. Gen. Stat. property or divisible personal real and Separate property is defined “all spouse by acquired by before or marriage.” devise, gift the course of descent, bequest, subject Separate property is 50-20(b) (2) (2005). Stat. party, Once 50-20(a) (2005). distribution. N.C.G.S. marital, the burden showing property is however, makes a separate. property party to show the proof other shifts *6 IN THE OF COURT APPEALS OF ESTATE NELSON v. NELSON App. (2006)] N.C. [179 Atkins, 207, Atkins App. 199, 102 N.C. 401 S.E.2d claiming separate property by pre- must show a ponderance property acquired by bequest, evidence the was devise, descent, gift during the marriage. Id.; course of the N.C.G.S. 50-20(b) (2) (2005). § governs Gen. Stat. 50-20(c) § division property: of marital and divisible equal

There shall be an using division net value marital property net property value of divisible unless court equal determines that an equitable. division is not If the court equal determines that an equitable, division is not the court shall property divide the marital property equitably. and divisible specifies N.C. Gen. Stat. 50-20(c) (2005). The statute twelve factors equitable distribution, for consideration in including N.C. Gen. Stat. 50-20(c)(llb)(b) which states: In the event of party prior entry death of either to the any order for the pursuant distribution of made this subsection: Property

b. held entirety joint as tenants or as rights with survivorship passing surviving spouse to the due to spouse. the death of the

N.C. Gen. Stat. 50-20(c)(llb)(b) (2005). This statute acknowledges held as tenants is removed from the mar- purposes ital estate for and thus becomes distribution separate property of the surviving spouse at the death of the spouse. North Highway Myers, Carolina State Comm’n 258, 261, 154 S.E.2d (1967) (right survivorship in entireties upon marriage vests and is not lost separation)-. In the judice, case sub the trial court found: By virtue survivorship, Defendant became the owner of the real on March 2004 when Decedent died.

10. The real property, Defendant’s as defined in G.S. 50-20(b)(2).

18D. Decedent permission could have moved the court

sever his claim thereby for absolute divorce and terminate APPEALS

IN THE COURT OF OF v. NELSON ESTATE but in the real did do so. *7 by parties acquired as tenants the

The three of real entirety separation. the and the The before date the of marital as set therefore meets definition However, has (b) in shown forth N.C. Gen. Stat. 50-20 property by by the preponderance a of the evidence she yet parties as had “during marriage" descent the course of the the not Mr. death. received an absolute divorce order at the date of Nelson’s parties by entirety with The owned the real as tenants the survivorship. Rabil, 364, 277 N.C. the See Mansour spouse dies, immediately one the S.E.2d 849 When directly spouse. parties passes surviving to See id. The were still the 2004, property passed in the married when Mr. Nelson died and real directly survivorship simultaneously Mr. by right of with to defendant ownership not parties’ The did alter the Nelson’s death. by entirety. Hwy. North designation as the See Carolina State tenants (a at from “does Comm’n at 154 S.E.2d 89 divorce bed board destroy relationship” “does convert estate the marital not the tenancy Carolina, In by entirety common”). the into a in North a ten ancy by entirety only ways. in may destroyed specific the entirety by voluntary tenancy by may a the be terminated whereby they

partition the exe- between the husband and wife joint land as ten- conveying cute a instrument the to themselves severalty. party is to a ants in common or in But neither entitled tenancy. . compulsory partition sever . . to the unity vinculo, destroying the A a an absolute divorce divorce tenancy, the of the husband and wife that is essential to existence by entirety a in will an the into common. convert estate spouses . . . Each equal become cotenants. The divorced is to an one-half interest in the entitled undivided thoro, hand, A on other divorce a mensa et the a divorce from marriage rela- and board which does not dissolve the bed “unity persons,” the of the and does tion, does not sever tenancy by any change in not terminate way. . . . IN THE COURT OF APPEALS

. MEGREMIS v. MEGREMIS Roberts, App. 415, 419, Martin v. 812,-(2006) (citations omitted) (emphasis in (emphasis original) added). See In re Penalty, 373, 384, (“Where Civil (1989) 379 S.E.2d a panel Appeals issue, Court has decided the same albeit in a case, panel subsequent by different of the same court is bound precedent, unless been higher court.”). it has property overturned Therefore, “the real owned Nelson and [Mr. defendant] entirety passed operation [defendant] law[.]” Mansour at 177 S.E.2d at 859. majority states, agree, purpose and I of the amend- adding

ment to N.C. Stat. 50-20 (1) subsection was allow for spouse. distribution claims to survive death of However, majority purpose states statute defeated if tenancy by passing to a survivor under a is held *8 separate property. to be disagree. I reasoning in this dissent would not affect an types action distribution as to other personal in real property. interests reasoning This solely limited upon marriage entireties which vests and is only upon lost Roberts, supra. the conditions as cited in Martin v. Any other result significantly long-standing would affect our doctrine survivorship. reasons,

For majority these I must dissent from the and would affirm the trial court on its findings based that at conclusions spouse’s death, time of her defendant inherited the real own, her MEGREMIS,

TOMMY LAMPROS Plaintiff-Appellee v. JUNE FAYE WRIGHT MEGREMIS, Defendant-Appellant

No. COA05-1387 (Filed August 2006) Appeal preservation argue Error— of issues —failure to assignments of error that argue defendant wife failed to in her brief are deemed abandoned under N.C.R. 28(b)(6). P. 2. Divorce— distribution — sanctions—notice constitutionally The trial court pro- violated defendant wife’s process tected to due in an distribution case imposing 50-21(e) adequate sanctions under N.C.G.S. § without