Dusenberry v. Dusenberry

326 S.E.2d 65 (1985)

G. Reid DUSENBERRY, III v. Sue Brown DUSENBERRY (now Fowler).

No. 8415DC636.

Court of Appeals of North Carolina.

February 19, 1985.

Holt, Spencer & Longest by James C. Spencer, Jr., Burlington and Hunter, Wharton & Howell by John V. Hunter, III, Raleigh, for plaintiff-appellee.

Boyce, Mitchell, Burns & Smith, P.A. by Carole S. Gailor, Raleigh, for defendant-appellant.

WHICHARD, Judge.

This is an equitable distribution action pursuant to G.S. 50-20, 21, in which the court concluded as a matter of law that an equal division of the marital property was not equitable. It did so based in part upon findings that defendant-wife "began having an adulterous affair ... and began neglecting the plaintiff and their three minor children" and that this conduct "was a major reason for the break-up of this marriage... and ... was the only serious and significant mistreatment of either party by the other party during the course of this *66 marriage." It concluded that consideration of "the relative fault of the parties leading to the disintegration of their marriage ... [was] just and proper."

Subsequent to entry of this order, this Court held that fault is not a relevant or appropriate consideration in determining an equitable distribution of marital property. Hinton v. Hinton, 70 N.C.App. 665, 321 S.E.2d 161 (1984); see also Wade v. Wade, ___ N.C.App. ___, 325 S.E.2d 260 (1985); Smith v. Smith, 71 N.C.App. 242, 322 S.E.2d 393 (1984). The award here is clearly grounded upon fault-based findings regarding an adulterous affair on the part of defendant-wife. Because the court considered this irrelevant and inappropriate matter in awarding the marital property, the order must be vacated and the cause remanded for a new order based solely upon relevant and appropriate findings.

Vacated and remanded.

WELLS and BECTON, JJ., concur.