*1 COURT OF APPEALS property in question profits realized therefrom in trust for the plaintiffs.
I vote to affirm summary judgment for the defendants.
LAWRENCE ANDERSON WHITE v. JEAN MALCOLM WHITE
No. 8210DC1178 (Filed 1983) 18 October Alimony equitable Divorce and 21.9— property findings distribution of marital — supporting conclusion In an action for divorce where defendant wife counterclaimed for 50-20, property pursuant distribution of the marital to G.S. the trial that defendant contributed services which exceeded in value the fair market value of her separate- ly was consistent with the court’s conclusion that the were entitled to an division of the marital
Judges concurring Hedeick Webb in the result. Cashwell, Judge. Order entered 9 APPEAL Court, June in District Wake County. Heard in the Court Appeals 29 September 1983.
On 23 November plaintiff husband filed an action for divorce year’s based on one separation. Defendant wife counter- claimed for equitable distribution of the marital property under 50-20. Upon G.S. trial without a jury, the court the parties found were entitled to an equal division of the marital property. From order, defendant appealed.
James S. Warren plaintiff appellee. Wallace, Creech, Kirby, Sarda and Zaytoun, by John R. Sarda, Wallace and Peter J. appellant. for defendant HILL, Judge.
The resolution of this appeal depends upon the interpretation 50-20, given the North Carolina Equitable Distribution Act. This act was enacted in recognition concept of marriage partnership, shared to which both enterprise spouses make COURT OF APPEALS
White White *2 contributions, valuable although ways. often different Sharp, Equitable Property Distribution North A Prelim- Carolina: inary Analysis, 61 L. N.C. Rev. 247 Equitable distribution seeks to effect upon divorce sharing those principles that motivate most couples during Id. marriage. particular, gives it recognition to the by essential role supportive played the wife in home, homemaker, that as acknowledging wife and mother clearly she should be entitled to a share of the assets accumulated Rothman, 219, 228, during Rothman marriage. 65 N.J. 496, A. case, In this defendant argues court erred in concluding the parties were to an entitled share of the marital proper- ty. She maintains her contributions to the marital estate greatly therefore, plaintiff; exceeded those of the she is entitled to a greater share of the marital by estate. The fact made the court are summarized as follows: parties were married September from 1951 until 1982. There
April were two born children of the Kevin marriage: White, White, Baird 4 September born and Elinor Bannon February born 28 1954. Prior to marriage, plaintiff received B.S. degree agricultural engineering from North Carolina State University and defendant received certification registered nurse Rex Nursing Upon School. their marriage, plaintiff heavy was as a salesman of employed and owned a equipment 1951 Studebaker automobile. Defendant Rex employed was at Hospital. married, gave defendant Rex
Upon getting up job at with Hospital after, plaintiff. Shortly and moved to there- Charlotte By became with her pregnant first child. mutual the parties, pursue consent of defendant elected not to her career and chose children parties’ as a nurse instead to raise employment a nurse the course of only during seek part-time Plaintiff, minority. twenty-four years the first throughout their heavy obligated sold and was to travel marriage, equipment employment. with his Defendant attended to the connection children, daily managed parties’ needs household home, finances, their the housework in and contributed did substantially career plaintiffs acquiescing the several s work and plaintiff assisting encourag- moves OF development of his career. Defendant plaintiff ing basis in each of the communities employed part-time on resided, night often at and on week- parties working which the ends. full-time employment
In June defendant obtained nurse occupational S. Service as an health the U. Postal July such career since that time. In pursued Plaintiff was period employed for a of nine months. separated of 1975-1978 did not have during period 1975 but through employment. full-time Plaintiff course regular acquired which enabled him financial investment skills marriage *3 During marriage, plain- to earn income from his investments. in name separate purchased tiff invested in securities his and early helped his 1970’s. Plaintiff also bulk of estate invest securities in her name. separate defendant and During earnings 1975 defendant’s contribu- through plaintiff exceeded those of the greatly tions to home parties’ in- to attend to his individual earnings plaintiff and such enabled daily were as earnings on a basis. Those follows: vestments Defendant
Plaintiff $18,254.00 $13,321.00 $10,852.00 $14,746.00 $15,835.00 $ 428.00 3,190.00 $16,249.00 $ 5,035.00 $16,641.00 $ S. U. Postal employment plaintiff obtained years is 55 age Service and so Plaintiff presently employed. approximately is 52. Plaintiff earns presently and defendant estate, $20,500.00 year, a has a substantial inheriting prospects his salary him increase enabling has additional in his steps and years. approximately earns Defendant coming income $23,000.00 salary level her maximum year, a has reached the Plaintiff has bur- may increases. longevity receive but position sitis, and has had osteoporosis and has arthritis and defendant with her em- past which interfered depression periods $3,300.00 rights pension Plaintiff has vested ployment. $8,900.00. vested pension rights has defendant individually Either or jointly, parties following own the (1) house, marital lot property: greenhouse valued at $57,900.00; $2,500.00; automobiles valued at securities $45,279.95 plaintiffs name valued name in at defendant’s $27,128.91; $1,478.00; amount furniture savings of $1,000.00. valued at Since mortgage made the payments on the house.
The court found that defendant contributed services as a homemaker, spouse, parent, earner wage which exceed in val- ue the fair market value of separately property. Finally, the court found that 50-20,
“pursuant equal to G.S. an marital presumed appropriate.” The first issue we must address is whether the court was correct 50-20 finding that G.S. equal creates 50-20(c) division. We believe the court was provides: correct.
(c) There shall be an net value of using marital unless the court determines division is not If equitable. the court determines that an division is equitable, the court shall divide consider property equitably. Factors the *4 under as this subsection are follows:
(1) income, The and of property, liabilities each at the party effective;
time the division property of is to become (2) Any obligation support arising out of a mar- prior
riage; (3) physical The duration of the and the and marriage age parties;
and mental health of both (4) custody need of a of a children parent The child or marriage occupy to or own the marital residence effects; use its
and to or own household (5) expectation pension rights Vested or retirement the which rights,
of nonvested or retirement are pension separate property;
(6) in, to, or indirect Any equitable claim interest direct or to of marital made such acquisition
contribution COURT OF title, ef- having joint party including property services, or forts or and contributions expenditures thereof, earner or home- spouse, parent, wage lack maker; (7) Any made spouse direct or indirect contribution one help potential
to or the career develop educate other spouse; Any contribution to an increase value direct which occurs course
separate property marriage;
(9) The or character all marital liquid nonliquid property; any any difficulty of or evaluating component asset business, corporation profession, in a or interest, desirability asset or retaining
economic such any from claim interference intact and free party; party; The tax to each consequences Any just other factor which the court finds be proper. 50-20(c) that language of G.S. interpret
We “[t]here unless the court division ... marital be equitable” establishing that an division is not determines We draw division of marital in other comparison our of similar statutes this conclusion from provide which for an majority The vast states states. direct the courts to divide the just considering in such as the deems proportions states, the courts do statutorily factors. those of the marital assets assign proportion not presumptively rather, an individual and they examine each case as each spouse; Rothman, at 503. But statutes entity. supra particular 50-20(c) in that clearly distinguishable are such states *5 starting of an division or make no mention its making work distribution. which the court should point contrast, division Arkansas have Wisconsin and assets. of marital do for an division statutes which provide as a creating been interpreted of these states have statutes rebuttable division. v. Jasper Jasper, (1982); 107 Wis. 318 N.W. 2d 2d Forsgren Forsgren, v. statute, Ark. 767.255, 630 S.W. App. 2d 64 The Wisconsin Sec. no contrary leaves room for interpretation it states court presume shall all other property is to be divided “[t]he equally parties, may between but alter distribution . . . (the factors).” considering after statute, enumerated The Arkansas hand, on the other virtually effect indistinguishable from the North Carolina statute and it too has been treated the courts as establishing such presumption. Arkansas statute 34-1214 states:
All marital be distributed one-half [V2] each unless the party court finds such a in- division to be in which equitable, event the court shall make some other division that the equitable court deems into taking considera- (the factors). tion The North Carolina legislature’s decision to word G.S. 50-20(c) it closely so that more follows the Arkansas Wiscon- statutes than sin rather the statutes in majority of states clearly that a presumption indicates was intended. The practical between the wordings difference is that the wording used majority of distribution more equitable states allows 50-20(c) discretion its allocation of the property. allows court considerable discretion even with the there- presumption; fore, we feel our interpretation the statute is a one. reasonable
The second issue we must what is the proper address is of review to be utilized in trial court’s reviewing standard decision. We believe division marital is a matter court, discretion the trial judgment within the sound its on review unless it is shown should be disturbed that the divi- made abuse of discretion. “An abuse of oc- sion was an discretion factors, proper when the trial court has failed to consider curs which made a the facts respect upon mistake error made, was, itself under omitted.)” or when (Citation circumstances, either excessive or inadequate. 59, 63-64, N.W. 2d Wis. Jasper Jasper, Virtually the states which provide all courts, the trial discretion in have vested broad *6 438 COURT
indeed, is if is to achieved. such discretion essential fairness be wide long recognized The in this state have that discre courts necessarily reaching is in trial courts in tionary power vested Griffin, in cases. See v. 237 particular decisions N.C. Griffin (1953). S.E. is so in cer especially involving 75 2d 133 This cases law. v. 270 family Swicegood Swicegood, N.C. aspects tain 278, (1967); 260 133 S.E. 324 v. Coggins Coggins, 154 2d N.C. (1963); 148 S.E. 2d Sayland Sayland, S.E. N.C. grant That our intended to courts wide discretion legislature by is language indicated dividing property 50-20(c); the existence of the twelve enumerated factors G.S. is what determining which the court to consider in the statute division; fac- will the existence of catchall be 50-20(c)(12)whereby permitted to consider tor just to be “any proper”; factor which the court finds on to the of evidence quantum the lack of indication as presumption. the factors overcome each of say have unlimited discretion in this This is not to the courts The limited divi- matter. courts are their 50-20(j) justify of G.S. that requirement sion and written of fact. Further- with property more, implies judgment discretion conscientious “the exercise of rules, arbitrary and not at in accordance with established arrived and Error Appeal N.C. Index 3d Strong’s action.” case, all of the relevant factors the court considered justi- 50-20 concluded the evidence did not in G.S. division equal property presumption. fy alteration of services which exceed defendant contributed finding court’s held jointly prop- value her interest in value the fair market erty consistent separately considerably more as conclusion. Defendant received than she the marital result only of her interest have she the value would if had received no We find separate of the estate. abuse of discretion Affirmed. the result. WEBB concur in
Judges HEDRICK OF Goble v. Helms Judge concurring Judge the result joined *7 Hedrick Webb. fact,
Defendant does not trial challenge findings of but rather contends that findings compel a conclusion defendant’s contributions to the marriage greatly exceeded those plaintiff, and that is so un- discrepancy great that an of equal division the marital matter law. we agree Judge While Hill that findings the court’s law, fact support its conclusions of we believe it inadvisable this case to undertake a definitive discussion of the Dis- Equitable dicta, tribution A great Act. deal Hill’s un- Judge opinion necessary to the decision. We with special Judge note concern Hill’s discussion of the proper appellate standard review. He discretion,” discretion,” speaks first of “limited later of “broad finally concludes that court’s conclusion is supported “[t]he fact;” thus to does amount “an abuse Despite discretion.” Hill’s Judge conscientious discussion of the issue, we are unable to from the opinion distill a resolution of the standard of review. question proper Because we believe review, any the result same under standard of we would leave day. another question wife, L. GOBLE LINDA BOBBYN. HELMS WINN-
JAMES GOBLE CHARLOTTE, DIXIE INC.
No. 8224SC1082 (Filed 1983) 18 October hypothetical question §
1. 49.2— Evidence of relevant facts not error —omission hypothetical question plaintiffs expert improper to A medical was not go because of omission of relevant where the did not facts facts omitted present obviously incomplete the essence the case so as an and unreliable expert’s opinion, given opportu- basis for the defendants where were nity supply felt to cross-examine the witness and additional facts necessary. were hypothetical objection improper question 2. Evidence 49.3— —waiver hypothetical question expert improperly plaintiffs Even if asked medical facts, question part of assumed answer to the statement of defend- objection question import was ants to the when evidence of the same waived objection. thereafter admitted without