Henderson v. Henderson
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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. IN THE COURT OF APPEALS OF NORTH CAROLINA No. COA16-72 Filed: 20 December 2016 Mecklenburg County, No. 10 CVD 8288 PERRIN Q. HENDERSON, Plaintiff v. MARY WARD HENDERSON, Defendant Appeal by defendant from orders entered 5 March 2015 and 28 May 2015 by Judge Jena P. Culler in Mecklenburg County District Court. Heard in the Court of Appeals 24 August 2016. Dozier Miller Law Group, by Adam S. Hocutt, for plaintiff-appellee. Collins Family Law Group, by Rebecca K. Watts, for defendant-appellant. CALABRIA, Judge. Where plaintiff made post-separation payments on a marital debt, the trial court did not err in classifying those payments as divisible property. We affirm. I. Factual and Procedural History Perrin Henderson (“plaintiff”) and Mary Henderson (“defendant”) (collectively, “the parties”) were married 4 August 1990, separated 1 March 2010, and divorced 9 August 2011. Two children were born during the marriage of the parties. One of the HENDERSON V. HENDERSON Opinion of the Court children had reached majority, and the other was sixteen years old at the time that the equitable distribution orders appealed from were entered. Plaintiff filed a complaint for equitable distribution and child custody on 12 April 2010. The trial court entered an “Equitable Distribution Judgment” order on 5 March 2015. The trial court found that, after the parties separated, defendant had maintained exclusive possession of the marital residence. Plaintiff paid interest-only mortgage payments on the first mortgage of the marital residence which totaled $292,934.00 during the separation period. The balance on this mortgage was $907,997.00 both at the date of separation and when the equitable distribution order was entered. The court found that “[t]he amount of $292,934.00 is divisible property. The Bank of America first mortgage in the amount of $907,997.00 and the divisible property related to the payments made by [plaintiff] towards the first mortgage totaling $292,934.00 are distributed to [plaintiff].” The parties also had a second mortgage on the marital residence at the time of separation. Plaintiff made all of the payments after separation on this mortgage as well. The date of separation debt on this mortgage was $166,731.00 and $157,744.00 when the equitable distribution order was entered. The court found that “[t]he Bank of America second mortgage is distributed to [plaintiff] at a balance of $166,731.00.” -2- HENDERSON V. HENDERSON Opinion of the Court The fair market value of the marital residence was $900,000.00 at the date of separation and $1,150,000.00 when the equitable distribution order was entered. The court found that “[t]he increase in value of the former marital residence of $250,000.00 since the date of separation is passive and, therefore divisible property. The Court distributes said real property and residence as well as the increase in value of the real property and residence to [plaintiff].” The court’s order provided that it had considered all factors set out in N.C. Gen. Stat. § 50-20(c). However, the order did not list and made no findings on the distributional factor 11a, including acts of a spouse to preserve marital property after the date of separation. For factor 12, which encompasses any other factor the court finds to be just and proper, the court found no further factors existed. After consideration of the factors, the court concluded that “[t]he parties are entitled to an equitable distribution of their marital property, as hereinafter ordered, and the division ordered herein, although unequal in favor of [defendant], is an equitable distribution of marital property, after due consideration of all factors as set forth in N.C.G.S. §50-20(c).” On 23 March 2015, defendant filed a motion for relief pursuant to Rules 52 (amendment of findings) and 59 (new trial) of the North Carolina Rules of Civil Procedure. Defendant’s request was based upon the court ordering her to vacate the marital residence prior to the entry of the equitable distribution order itself. -3- HENDERSON V. HENDERSON Opinion of the Court Additionally, defendant requested that any order to vacate the residence occur after a reevaluation of alimony. The court entered an order in response to defendant’s motion on 28 May 2015 granting the Rule 52 motion to amend and denying the Rule 59 motion for a new trial. On 28 May 2015, the court entered an “Amended Equitable Distribution Judgment” order in which defendant was given additional time to vacate the marital residence. From the 5 March 2015 equitable distribution order, the 28 May 2015 amended order, and the 28 May 2015 denial of defendant’s Rule 59 motion, defendant appeals. II. Equitable Distribution In her sole argument on appeal, defendant contends that the trial court erred in classifying plaintiff’s mortgage payments as divisible property. We disagree. A. Standard of Review Equitable distribution is vested in the discretion of the trial court and will not be disturbed absent a clear abuse of that discretion. Only a finding that the judgment was unsupported by reason and could not have been a result of competent inquiry, or a finding that the trial judge failed to comply with the statute, will establish an abuse of discretion. Wiencek-Adams v. Adams, 331 N.C. 688, 691, 417 S.E.2d 449, 451 (1992) (citations omitted). B. Analysis -4- HENDERSON V. HENDERSON Opinion of the Court In an equitable distribution proceeding, the trial court must determine what property is marital, divisible, and separate, and distribute it accordingly. N.C. Gen. Stat. § 50-20(a) (2015). Marital property is defined as: all real and personal property acquired by either spouse or both spouses during the course of the marriage and before the date of the separation of the parties, and presently owned, except property determined to be separate property or divisible property in accordance with subdivision (2) or (4) of this subsection. Marital property includes all vested and nonvested pension, retirement, and other deferred compensation rights, and vested and nonvested military pensions eligible under the federal Uniformed Services Former Spouses’ Protection Act. It is presumed that all property acquired after the date of marriage and before the date of separation is marital property except property which is separate property under subdivision (2) of this subsection. It is presumed that all real property creating a tenancy by the entirety acquired after the date of marriage and before the date of separation is marital property. Either presumption may be rebutted by the greater weight of the evidence. N.C. Gen. Stat. § 50-20(b)(1). By contrast, divisible property is defined as: a. 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. b. All property, property rights, or any portion thereof received after the date of separation but before the date of distribution that was acquired as a result of the efforts of either spouse during the marriage and before the date of separation, including, but not limited to, commissions, -5- HENDERSON V. HENDERSON Opinion of the Court bonuses, and contractual rights. c. Passive income from marital property received after the date of separation, including, but not limited to, interest and dividends. d. Passive increases and passive decreases in marital debt and financing charges and interest related to marital debt. N.C. Gen. Stat. § 50-20(b)(4). Defendant contends that the mortgage payments, which the trial court determined to be divisible property, were in fact marital property, as they constituted an active change, as opposed to a passive change, in the mortgage. Defendant cites Brackney v. Brackney, 199 N.C. App. 375, 682 S.E.2d 401 (2009), for the principle that passive changes in the value of marital property, such as inflation or other changes over time, are classified as divisible, while active changes are marital. The property at issue is the payments made by plaintiff on the first mortgage. The trial court found, and the parties do not challenge, that plaintiff made payments solely on the interest on the mortgage, and that the mortgage was marital property. Defendant challenges the trial court’s determination that the payments were divisible property, and that they could be awarded to plaintiff. Despite defendant’s assertions, however, our case law dictates another result. This Court has consistently held that post-separation payments on marital debt are -6- HENDERSON V. HENDERSON Opinion of the Court divisible property that can be distributed to the party making those payments. Specifically, this Court has held that: “A spouse is entitled to some consideration, in an equitable distribution proceeding, for any post-separation payments made by that spouse (from non-marital or separate funds) for the benefit of the marital estate. Likewise, a spouse is entitled to some consideration for any post-separation use of marital property by the other spouse.” Bodie v. Bodie, 221 N.C. App. 29, 34, 727 S.E.2d 11, 15 (2012) (quoting Walter v. Walter, 149 N.C. App. 723, 731, 561 S.E.2d 571, 576-77 (2002)); see also Wirth v. Wirth, 193 N.C. App. 657, 665, 668 S.E.2d 603, 609 (2008) (holding that postseparation payments of marital debt entitled defendant to credit); Warren v. Warren, 175 N.C. App. 509, 517, 623 S.E.2d 800, 805 (2006) (holding that a husband’s payments of the interest of a line of credit constituted divisible property). Given this abundant precedent, when one spouse uses separate funds to make post-separation payments on a marital debt, those payments are divisible and should be distributed to that spouse. This precedent is binding upon this Court, and as such, we hold that the trial court did not abuse its discretion in classifying plaintiff’s postseparation payments of marital debt to be divisible property, to be distributed to plaintiff. This argument is without merit. The trial court’s order is affirmed. AFFIRMED. Judges DAVIS and TYSON concur. -7- HENDERSON V. HENDERSON Opinion of the Court Report per Rule 30(e). -8-
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