Swindell v. Lewis

346 S.E.2d 237 (1986)

Marjorie M. SWINDELL, v. William H. LEWIS, Jr., et al.

No. 852DC1251.

Court of Appeals of North Carolina.

August 5, 1986.

*238 Maupin, Taylor, Ellis & Adams, P.A. by R. Stephen Camp, Steven M. Rudisill and Holmes P. Harden, Raleigh, for plaintiff.

Everett, Everett, Warren & Harper by Edward J. Harper, II, and Lewis, Lewis, Burti & Cummings by Howard J. Cummings, Farmville, for defendant William Lewis.

Carter, Archie & Hassell by Sidney J. Hassell, Jr., Washington, for defendant Gloria Lowe.

Hall, Hill, O'Donnell, Taylor & Manning by Raymond M. Taylor, Raleigh, for defendants Gene Swindell and Sybil Swindell.

J. Michael Weeks, P.A. by J. Michael Weeks, Zebulon, for defendant Roger Swindell.

Davis & Davis by George Thomas Davis, Jr., Swan Quarter, for defendant Bonnie Selby.

WELLS, Judge.

Defendants' Appeal

In its judgment of 26 June 1985 the trial court listed appraised values of the marital real property as of 1972, the year of the couple's separation, and 1983, the year absolute divorce was granted. The cumulative value of the properties in 1972 was $316,193.00 and in 1983 was $913,889.00. Appellants contend that, once the property is valued as of the date of separation as mandated by N.C. Gen. Stat. § 50-21 (b)(1984), plaintiff's half should be $158,096.50; therefore, it was error to award her a one-half undivided interest that in 1983 had a value of $456,944.50. In effect, appellants argue that the court's "equal division" was in fact unequal. We do not agree and affirm the trial court's judgment.

*239 We note at the outset that the 1983 amendments which included G.S. 50-21(b) apply to this action as it was pending on 1 August 1983. Talent v. Talent, 76 N.C. App. 545, 334 S.E.2d 256 (1985). The amended statute reads as follows:

If the divorce is granted on the ground of one year separation, the marital property shall be valued as of the date of separation.... [Emphasis added.]

G.S. 50-21(b).

The result of this particular division would be the same whenever the property was valued. Even if we assume that the property division was made on the basis of 1983 values, that division would merely reflect the 50% of the marital property that plaintiff was entitled to at separation plus 50% of any appreciation after separation, which would be her separate property. Dewey v. Dewey, 77 N.C.App. 787, 336 S.E.2d 451 (1985). This is so because defendant administrator has not shown that the properties' appreciation was due to the deceased's contributions, monetary or otherwise. Wade v. Wade, 72 N.C.App. 372, 325 S.E.2d 260; disc. rev. denied, 313 N.C. 612, 330 S.E.2d 616 (1985). The plaintiff thus receives the same amount of property regardless of whether the marital property was considered at its 1972 value or its 1983 value. Appellants have failed to show any prejudice from the court's actions.

Appellants contended at oral argument that this interpretation would render G.S. 50-21(b) a "dead letter." In some cases, the value of property at the time of separation will have important consequences for the award. Value of property at the time of separation is especially important when an appreciation or diminution in the value of the property has taken place since separation due to acts of a spouse's separate contributions, see Wade, supra; e.g., the incurring or removing of encumbrances by one spouse, see Dorton v. Dorton, 77 N.C. App. 667, 336 S.E.2d 415 (1985). In the circumstances of this case, in which determination of a later appreciated value does not change the result, the statutory purpose has not been frustrated. This assignment of error is overruled and the 26 July 1985 judgment is affirmed.

Plaintiff's Appeal

Plaintiff has appealed the 29 July 1985 judgment of the trial court refusing to rescind its previous order joining the claimed heirs-at-law. When the action for divorce and equitable distribution was first brought, defendant Melvin Swindell was, of course, alive. At that time only Melvin Swindell and Marjorie Swindell had an interest in the litigation. When Melvin died, the administrator of his estate was substituted as party defendant. Plaintiff contends that joining Melvin's heirs-at-law constituted reversible error.

When a property owner dies intestate, the title to his real property vests immediately in his heirs. N.C.Gen.Stat. § 28A-15-2(b) (1984). The decedent's personal representative has the power, upon petition to the clerk of superior court, to sell decedent's real property for payments of debts and other claims against the decedent's estate, N.C. Gen. Stat. § 28A-17-1 (1984), but the proceeding is an adversary one, requiring that the heirs be made parties. N.C. Gen. Stat. § 28A-17-4 (1984); In re Estate of Daniel, 225 N.C. 18, 33 S.E.2d 126 (1945). If an heir is not joined, the order of sale is void as to him. Card v. Finch, 142 N.C. 140, 54 S.E. 1009 (1906); Lucas v. Felder, 261 N.C. 169, 134 S.E.2d 154 (1964). If this were not the case, the heir would be left without practical remedy. "He should, as a matter of common justice, have just opportunity to see that the occasion had properly arisen for resort to the land described or devised to him, and to show the contrary if he could." Perry v. Adams, 98 N. C. 167, 3 S.E. 729 (1887).

We believe the situation in the case at bar to be closely analogous. The title to this property, in Melvin Swindell's name, vested in the heirs at the moment of Melvin's death. The order of the court directing the deeding of a one-half undivided interest in this property to plaintiff would divest the heirs of title to this interest with *240 the same finality as would an order to sell that interest. We hold that the heirs were necessary parties to the equitable distribution action. Accordingly, the trial court did not err in its order to join them.

The judgments of 26 July 1985 and 29 July 1985 are

Affirmed.

ARNOLD and BECTON, JJ., concur.