Anderson v. Anderson

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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA14-748 NORTH CAROLINA COURT OF APPEALS Filed: 31 December 2014 DONNIE ANDERSON, Plaintiff, v. Surry County No. 12 CVD 460 CHARMAN ANDERSON, Defendant. Appeal by plaintiff from order entered 19 March 2014 by Judge Charles M. Neaves, Jr. in Surry County District Court. Heard in the Court of Appeals 19 November 2014. STEVENS AND BRINTLE, PLLC, by Sarah Stevens, for plaintiff. No brief was filed on behalf of defendant. ELMORE, Judge. Donnie Anderson (plaintiff) appeals from the entry of the trial court’s equitable distribution order. We remand for additional findings of fact and for the correction of certain calculations in the equitable distribution order. I. Background Plaintiff and Charman Anderson (defendant) were married on 1 May 1998. Two children were born of the marriage, the first -2child in 2001 and the second separated on 11 January 2012. into an 2013. equitable child in 2003. The parties Plaintiff and defendant entered distribution pre-trial order on 9 October After reviewing the parties’ pre-trial order, the trial court entered a final order of equitable distribution on 19 March 2014. II. Appellate Rule Violations As an initial matter, we address plaintiff’s violations of the North Carolina Rules of Appellate Procedure (the rules) to determine whether this appeal should be dismissed under our Supreme Court’s holding in Dogwood Dev. & Mgmt. Co., LLC v. White Oak Transp. (Dogwood I). Co., 362 N.C. 191, 657 S.E.2d 361 (2008) In Dogwood I, our Supreme Court recognized that the occurrence of default under the appellate rules stems from the existence of one or more of the following circumstances: “(1) waiver occurring in the trial court; (2) defects in appellate jurisdiction; and (3) violation of nonjurisdictional requirements.” plaintiff’s Id. at 194, 657 S.E.2d at 363. noncompliance falls within the In this case, third category, violation of the nonjurisdictional requirements of the appellate rules. -3The third category of default involves a party’s failure to comply with one or more of the nonjurisdictional prescribed by the appellate rules. requisites Id. at 198, 657 S.E.2d at 365. These nonjurisdictional requirements have been enacted “primarily to keep the appellate process flowing in an orderly manner.” Id. (citation and quotation omitted). One example of such a rule is Rule 28(b), which governs the content of an appellant’s brief. this “while kind, Noncompliance perhaps with the indicative of appellate rules of inartful appellate advocacy, does not ordinarily give rise to the harms associated with review of unpreserved issues or lack of jurisdiction. And, notably, the appellate court faced with a default of this nature possesses discretion in fashioning a remedy to encourage better compliance with the rules.” Thus, “[w]e stress that Id. at 198, 657 S.E.2d at 365. a party’s failure to comply with nonjurisdictional rule requirements normally should not lead to dismissal of the appeal.” Id.; see also Hicks v. Kenan, 139 N.C. 337, 338, 51 S.E. 941, 941 (1905) (noting this Court’s preference to dismissing for hear the merits noncompliance of with the the appeal rules); rather 5 than Am.Jur.2d Appellate Review § 804, at 540 (2007) (“[I]t is preferred that -4an appellate court address the merits of an appeal whenever possible. . . . [A]n appellate court has a strong preference for deciding cases appellate court on their merits; to resolve Rules 25 and appeals it on is the the task merits of if at an all possible.”). Appellate and 34 provide a framework for addressing violations of the nonjurisdictional requirements of the rules. Id. at 199, 657 S.E.2d at 366. Rule 25(b) allows the appellate court to “impose a sanction against a party or attorney or both when the court determines that such a party or attorney or appellate both substantially rules[.]” N.C. R. failed App. P. to comply 25(b) with (2013). these Rule 34(a)(3) provides that the appellate court may impose a sanction “when the [C]ourt determines that an appeal or any proceeding in an appeal was frivolous because . . . a petition, motion, brief, record, or other paper filed in the appeal was grossly lacking in the requirements of propriety, grossly violated appellate court rules, or grossly disregarded the requirements of a fair presentation of the issues to the appellate court.” App. P. 34(a)(3). Rule 34(b) permits N.C. R. as possible sanctions monetary damages, dismissal, and “any other sanction deemed just and proper.” N.C. R. App. P. 34(b). -5In the instant case, plaintiff violated Rule 28(b) sections (1)-(5). Rule 28 sets forth the guidelines for the contents of a party’s brief. cover page, Notably, plaintiff’s brief is devoid of (1) a followed by a subject index and table of authorities; (2) a statement of the issues presented for review; (3) a statement of the procedural history of the case; (4) a statement of the grounds statement of facts. for appellate review; and (5) a Each of these items is required to be contained in an appellant’s brief in order for an appellant to be in compliance with Rule 28. In addition, plaintiff’s brief is single spaced in direct violation of Rule 26(g)(1), which explicitly provides that “[t]he body of text shall be presented with double spacing between each line of text.” N.C. R. App. P. 26(g) (2013). We must examine whether defendant’s noncompliance with Rule 28 and Rule 26(g) constitutes a substantial failure or gross violation of the appellate rules. S.E.2d at 366. Dogwood, 362 N.C. at 199, 657 In determining whether a party’s noncompliance with the appellate rules rises to the level of a substantial failure other or gross factors, impairs the violation, whether court’s and task of this to Court what review “may extent and consider, the whether among noncompliance and to what -6extent review on the merits would frustrate the adversarial process. . . . The court may also consider the number of rules violated[.]” Id. at 200, 657 S.E.2d at 366-67 (internal citations omitted). We conclude that plaintiff’s noncompliance with the rules does in fact constitute a substantial violation of the appellate rules. failure or a gross Plaintiff’s brief fails to comply with essentially all of the requirements for an appellate brief. Most egregious is the fact that plaintiff’s brief is devoid of an issue statement(s) and a statement of the standard of review. By failing to include these items, plaintiff has essentially asked this Court to do his job for him, since we are now charged with identifying plaintiff’s issues and determining how to review them. However, we conclude that plaintiff’s violations, although substantial, are insufficient to warrant dismissal. We will hear the merits of his appeal only because the violations do not impair our ability to review the case. Therefore, as directed by Dogwood, we elect to carry out the primary function of the appellate court and review the merits of the appeal. Again, it is well-settled that in lieu of dismissal, “some other sanction may be appropriate, pursuant to Rule 25(b) or -7Rule 34 of the Rules of Appellate Procedure.” State v. Hart, 361 N.C. 309, 311, 644 S.E.2d 201, 202 (2007). As a sanction for plaintiff’s substantial non-compliance with our appellate rules, we order plaintiff’s counsel to pay double the printing costs of this appeal pursuant to Rule 34(b). Dogwood Dev. & Mgmt. Co., LLC v. White Oak Transp. Co., 192 N.C. App. 114, 123, 665 S.E.2d 493, 500 (2008) (Dogwood II) (sanctioning defendant’s attorney by way of ordering him to pay double the printing costs). We instruct the Clerk of this Court to enter an order to this effect. III. Analysis A. Distributive Award On appeal, plaintiff contends that the trial court erred in ordering him to pay a distributive award to defendant. Plaintiff contends that the order contains insufficient findings of fact to establish that plaintiff had the ability to pay the distributive award. In addition, plaintiff argues that the trial court’s order is devoid of findings of fact concerning whether plaintiff rebutted the presumption in favor of an inkind distribution. We agree. The trial courts are afforded great discretion in equitably distributing marital property. Urciolo v. Urciolo, 166 N.C. -8App. 504, 505, 601 S.E.2d 905, 907 (2004). The trial court’s order a will not be discretion. upset on appeal absent clear abuse of Id. Previous decisions of this Court have held that the trial court can properly order the payment of a distributive award instead of an in-kind distribution only distribution was found to be impractical. when an in-kind Heath v. Heath, 132 N.C. App. 36, 38, 509 S.E.2d 804, 805 (1999) (holding that the trial court must make a finding that an equitable distribution of the marital property in-kind would be impractical). In 1997, N.C. Gen. Stat. § 50-20(e) was amended to “create a rebuttable presumption that equitable.” Urciolo, 166 N.C. App. at 506, 601 S.E.2d at 908 (quoting 1997 N.C. an in-kind Sess. distribution Laws 302 § 1). of When property there is is a presumption in the law, the finder of fact is bound by the presumption rebutted. unless it finds that the presumption has been Alexander v. Alexander, 68 N.C. App. 548, 552, 315 S.E.2d 772, 775-76 (1984). If the trial court has determined that the presumption in favor of an in-kind distribution has been rebutted, it must make findings of fact and conclusions of law in support of that determination. 38, 509 S.E.2d at 805. Heath, 132 N.C. App. at -9Further, N.C. Gen. Stat. § 50-20(c) enumerates distributional factors to be considered by the trial court. One of those factors is “[t]he liquid or nonliquid character of all marital property and divisible property.” N.C. Gen. Stat. § 50- 20(c)(9) (2013). The trial court is required to make findings concerning whether a defendant has sufficient liquid assets from which he could pay a distributive award. Embler v. Embler, 159 N.C. App. 186, 188, 582 S.E.2d 628, 630 (2003). In the instant case, the trial court ordered plaintiff to pay a distributive award to defendant in the amount of $68,932 in the following fashion: a. $35,000.00 payable in certified funds on or before November 1, 2013, which the parties have indicated to the Court has been paid within the requisite period of time; b. the remaining of $33,932.00 payable directly to the Defendant in equal monthly installments of $688.02, beginning November 1, 2013, and continuing thereafter on or before the 1st day of each successive month, for a total of sixty (60) months. This remaining $33,932.00 amount is subject to interest at the rate of eight percent (8.0%) per annum from November 1, 2013. In its order, it appears that the trial only accounted for one source of liquid assets from which defendant could pay the distributive award. That liquid asset is a BB&T checking -10account in the name of Virginia Carolina Utilities totaling $21,962. Although plaintiff’s share of the marital estate is $117,752, there is no indication that plaintiff had access to other liquid assets aside from the $21,000 in the checking account from which he could pay the distributive award. In addition, it appears the trial court arbitrarily selected an interest rate of eight percent without making concerning the tax consequences to plaintiff. a finding N.C. Gen. Stat. § 50-20(c)(9), (11) (in determining whether an equal division of property is equitable, the court must consider the liquid or nonliquid character consequences findings to of each concerning all marital party). whether The property trial plaintiff judge had and the tax neither made other sufficient liquid assets to pay the distributive award nor considered the tax consequences to plaintiff. plaintiff had the ability Therefore, it is unclear whether to pay the distributive award. “Although defendant may in fact be able to pay the distributive award, [the] defendant’s evidence is sufficient to raise the question of where [plaintiff] will obtain the funds to fulfill this obligation.” 908 (citation and Urciolo, 166 N.C. App. at 507, 601 S.E.2d at quotation omitted). Accordingly, we must remand this matter for additional findings of fact concerning -11whether the presumption in favor of an in-kind distribution has been rebutted and whether defendant has sufficient liquid assets to pay the distributive award to defendant. B. Credits In order, Schedule plaintiff defendant’s J of requested personal allegedly paid. the and pre-trial credits business and equitable setoffs expenses distribution relating that to plaintiff The expenses totaled approximately $9,755. The trial court found that plaintiff was entitled to a credit in the amount of $4,338. Plaintiff recognizes that the allowance of credits is within the discretion of the trial court. However, he contends that the trial court was required to identify the expenses for which it granted plaintiff a credit in its findings of fact. Without specific findings of fact as to which credits were allowed, plaintiff argues that he is unable to challenge finding #14. We agree and remand for additional findings of fact concerning which of the credits listed in schedule J the trial court allowed. C. Marital Liabilities Lastly, plaintiff argues that the trial court calculating the parties’ total marital liabilities. erred We agree. in -12Finding of fact #12(b) provides that the total marital liabilities distributed to plaintiff as listed on Schedule H amounted to $70,408. It also provides that the total marital liabilities distributed to defendant on Schedule H is $6,598. However, conclusion of law #4 states that the total marital liabilities distributed to plaintiff pursuant to Schedule H is $63,408 and that the total marital liabilities distributed to defendant pursuant to Schedule H is $13,598. Clearly, there is a discrepancy in the trial court’s calculations of the parties’ marital liabilities. We remand the equitable distribution order to the trial court with instructions to re-calculate the sum of the parties’ marital liabilities. To the extent that this correction affects other calculations in the order, we order the trial court to make all necessary adjustments. In sum, this Court remands the equitable distribution order to the trial court for additional findings of fact and for the correction of certain calculations. Remanded. Judges ERVIN and DAVIS concur. Report per Rule 30(e).

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