Binder v. Binder
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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. NO. COA13-522 NORTH CAROLINA COURT OF APPEALS Filed: 17 December 2013 DELORES KAY GARNER BINDER, Plaintiff, v. Guilford County No. 04 CVD 4810 RUDOLPH LUDWIG BINDER, JR., Defendant. Appeal by defendant from judgment entered 13 February 2013 by Judge Wendy Enochs in Guilford County District Court. Heard in the Court of Appeals on 26 September 2013. Schiller & Schiller, PLLC, by Kathryn H. Schiller, Alexis Q. Lackey, and David G. Schiller, for plaintiff-appellee. Benson Brown & Faucher, PLLC, by Drew Brown and Robert A. Benson, for defendant-appellant. HUNTER, Robert C., Judge. Rudolph Ludwig Binder, Jr. ( defendant ) appeals from the trial court s judgment of equitable distribution. On appeal, defendant argues the trial court erred by: (1) failing to make findings of fact as to whether defendant had sufficient assets to pay the new distributive award, and (2) erroneously -2classifying funds withdrawn by defendant from Hicone Properties, LLC as divisible property. After careful review, we affirm the trial court s judgment. Background Defendant and Delores Kay Garner Binder ( plaintiff ) were married on 8 October 1983 in Greensboro, North Carolina. separated on 24 November 2003. As of the date They of the separation, defendant owned Hicone Properties, LLC ( Hicone ), with its sole asset being Hicone Shopping Center ( the shopping center ) located in Greensboro, North Carolina. Both parties stipulated that Hicone was a marital asset and was subject to equitable distribution. The parties February 2005. were divorced by judgment entered on A hearing was held on the parties claims for equitable distribution of marital and divisible property. trial court entered defendant to $3,248,120.49. 24 pay its judgment plaintiff a The on 24 March 2011, ordering total distributive award of After appeal by both parties, this Court issued an unpublished opinion which affirmed in part and vacated and remanded in part the trial court s 24 March 2011 order. See Binder v. Binder, No. COA11 1502, 2012 WL 3571067, at *4 (N.C. App. Aug. 21, 2012) ( Binder I ). -3On remand, the trial court was to clarify which portion of the $2,183,762.00 withdrawn by defendant from Hicone during the postseparation period was divisible property. The trial court entered new findings of fact that defendant actively managed the shopping center during the postseparation period and $304,014.00 was a reasonable fee for those efforts. the trial court concluded that $304,014.00 that Therefore, was defendant s separate property and the remaining $1,879,748.00 was divisible property. The trial court ordered defendant to pay plaintiff a new total distributive award of $4,187,994.49. Defendant filed timely notice of appeal. Discussion I. Findings of Fact as to Defendant s Assets Defendant first argues that the trial court erred by failing to make a finding that he has sufficient assets to pay the new distributive award. Defendant We disagree. unsuccessfully argued this issue in Binder I. The Binder I Court held that the trial court did not fail to make factual findings as to defendant s ability to pay the distributive award because it actually made an explicit finding that defendant did have the ability to pay, included with an assessment of his various business interests, withdrawals, and -4distributions. Binder I, at *4. these same findings after remand. The trial court here made The longstanding rule in this state is that once an appellate court has ruled on a question, that decision becomes the law of the case and governs the question both in subsequent proceedings in a trial court and on subsequent appeal. 550 S.E.2d omitted). without 166, Prior v. Pruett, 143 N.C. App. 612, 618, 170 Even (2001) (citation unpublished precedential value, or and opinions, an quotation which erroneous are marks normally decision by the Court of Appeals becomes the law of the case for that case only. Id. at 618, 550 S.E.2d at 171. Therefore, we are bound by the Court s holding on this issue in Binder I. As such, defendant s argument is overruled. II. Distributions from Hicone Defendant classifying a also argues portion of divisible property. that the the trial distributions court erred by from Hicone as We disagree. Our standard of review as to these issues is well-settled: [w]hen the trial court sits without a jury, the standard of review on appeal is whether there was competent evidence to support the trial court s findings of fact and whether its conclusions of law were proper in light of such facts. While findings of fact by the trial court in a non-jury case are conclusive on appeal if there is evidence to support those findings, -5conclusions of law are reviewable de novo. We review the trial court s distribution of property for an abuse of discretion. Romulus v. Romulus, __ N.C. App. __, __, 715 S.E.2d 308, 311 (2012). Where no exception is taken to a finding of fact by the trial court, the finding is presumed to be supported by competent evidence and is binding on appeal. Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991). Divisible property is defined in part as: All appreciation and diminution in value of marital property and divisible property of the parties occurring after the date of separation and prior to the date of distribution, except that appreciation or diminution in value which is the result of postseparation actions or activities of a spouse shall not be treated as divisible property. N.C. Gen. property Stat. is § also 50-20(b)(4)(a) [p]assive (2011). income from Thus, divisible marital property received after the date of separation, including but not limited to, interest and dividends. N.C. Gen. Stat. § 50-20(b)(4)(c) (2011). Upon remand from this Court s decision in Binder I, the trial court was to clarify what portion of the $2,183,762.00 withdrawn divisible by defendant property. from Hicone after Although entered under separation its findings was of -6fact, the trial court s classifications of these distributions are more appropriately deemed conclusions of law. Hunt v. Hunt, 112 N.C. App. 722, 729, 436 S.E.2d 856, 861 (1993) ( Because the classification of property in an equitable distribution proceeding requires the application of legal principles, this determination is most appropriately considered a conclusion of law. ). The trial $2,183,762.00 court withdrawn concluded by that defendant $304,014.00 from of Hicone the after separation was not divisible property because it was collected as income center from and his that active the efforts remaining in managing $1,879,748.00 the was shopping divisible property as a distribution of passive income earned by a marital asset. Contrary to defendant s argument, there is competent evidence to support the trial court s finding that defendant was withdrawing funds, in part, as compensation for his efforts in managing the shopping center. Defendant s own concession that he was putting forth active efforts in managing the property, such other as managing daily tenants, activities[] cleaning supports toilets, the trial in addition court s to finding that defendant was entitled to receive reasonable compensation for these active efforts. Further, neither party challenges the -7trial court s findings that: (1) witnesses testified that three to five percent of the rents received by the shopping center would be a customary management fee; (2) five percent would be reasonable compensation for defendant s efforts here; and (3) five percent of the equaled $304,014.00. appeal, and we find rents received by the shopping center These uncontested findings are binding on that they support the trial court s conclusion that $304,014.00 was not divisible property pursuant to section 50-20(b)(4)(c) because it was active, not passive, income. See N.C. Gen. Stat. § 50-20(b)(4)(c) (2011) (divisible property includes passive income generated by a marital asset) (emphasis added). As to the remaining $1,879,748.00 that defendant withdrew after separation, neither party contests the trial court s findings of fact that evidence was presented which tended to show: (1) not all appreciation generated by an owner-operated business is the result of the owner s active efforts, and (2) the amount defendant withdrew from Hicone was not correlated to the amount of time he spent working at the shopping center. The trial court also made an uncontested finding of fact that the remaining distribution $1,879,748.00 of passive withdrawn income by earned defendant by a marital was a asset. -8Therefore, we hold that these findings of fact, as uncontested, are binding on appeal and support the trial court s conclusion that the property. (divisible $1,879,748.00 See N.C. property withdrawn Gen. includes by Stat. defendant § passive was divisible 50-20(b)(4)(c) income property received after the date of separation ). from (2011) marital Accordingly, we affirm the trial court s judgment as to this classification. Conclusion For the reasons stated above, we affirm the trial court s judgment. AFFIRMED. Judges BRYANT and STEELMAN concur. Report per Rule 30(e).
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