Leighow v. Leighow

Annotate this Case

463 S.E.2d 290 (1995)

120 N.C. App. 619

Linda M. LEIGHOW, Plaintiff, v. Thomas M. LEIGHOW, Defendant.

No. COA95-89.

Court of Appeals of North Carolina.

November 7, 1995.

*291 Robert E. Riddle, P.A. by Cecilia Johnson, Ashville, for plaintiff-appellee.

Steven Andrew Jackson, Asheville, for defendant-appellant.

WALKER, Judge.

Plaintiff and defendant were married on 11 January 1969. They separated on 13 November 1992 and were divorced on 25 January 1994. On 13 June 1994, the trial court entered a judgment of equitable distribution valuing the marital estate at $408,423.81 and awarding 51% to plaintiff and 49% to defendant. Defendant appeals.

In his first assignment of error, defendant argues that the trial court erred in its treatment of post-separation interest income from two mortgage notes acquired by the parties during their marriage. Defendant relies on Godley v. Godley, 110 N.C.App. 99, 429 S.E.2d 382 (1993) for the proposition that post-separation income derived from marital property does not meet the definition of marital property under N.C.Gen.Stat. § 50-20. While we agree with the holding in Godley, it is inapplicable to the present case. The trial court did not classify the post-separation interest on the notes as marital property. The amount of the interest income was not included in the trial court's calculation of the net marital estate nor did the court distribute the income as marital property. Rather, the court's judgment categorized the mortgage notes themselves as marital property, distributed them to defendant, and considered as a distributional factor the fact that "[p]laintiff should have been entitled to one half" of the post-separation interest income from the notes.

In Chandler v. Chandler, 108 N.C.App. 66, 422 S.E.2d 587 (1992), this Court held that post-separation rental income received from marital property may not be added to the marital estate or distributed as marital property; rather, "the trial court must consider the existence of this income, determine to whose benefit the income has accrued, and then consider that benefit when determining whether an equal or unequal distribution of the marital estate would be equitable." Id. at 69, 422 S.E.2d at 590. Here, since defendant continued to receive the payments on the two notes after separation, the income from the notes accrued to his benefit. The trial court considered this benefit to defendant in determining that an unequal distribution of the marital estate in favor of plaintiff would be equitable. Because the judgment in the present case reflects that the trial court correctly followed the approach in Chandler, we find no abuse of discretion in this portion of the judgment.

In his second assignment of error, defendant claims that the trial court erred by making an unequal division of the marital property. We disagree. It is entirely within *292 the trial court's discretion, absent some clear abuse, to determine whether or not to divide the marital estate equally or unequally. Harris v. Harris, 84 N.C.App. 353, 358, 352 S.E.2d 869, 872 (1987). Furthermore, this Court has specifically held that the finding of a single distributional factor may support an unequal division. Judkins v. Judkins, 113 N.C.App. 734, 741, 441 S.E.2d 139, 143, review denied, 336 N.C. 781, 447 S.E.2d 424 (1994). Here, the trial court made findings to support three distributional factors favoring plaintiff: (1) defendant's post-separation use of marital funds, including approximately $97,000 in cash taken from a joint investment account without plaintiff's knowledge; (2) plaintiff's expenditures in maintaining the marital home; and (3) defendant's control of marital assets. The trial court has broad discretion in evaluating and applying the statutory distributional factors and cannot be reversed unless its decision is shown to be manifestly unsupported by reason. Harris, 84 N.C.App. at 358, 352 S.E.2d at 873. The factors enumerated by the trial court were sufficient to support its conclusion that "an equal division would not be equitable under the circumstances of this case."

In his fourth assignment of error, defendant argues that the trial court erroneously failed to award defendant credit for plaintiff's exclusive post-separation use of the marital residence. The record shows that defendant requested the court to consider this as a distributional factor and gave his opinion of the fair rental value of the residence. The evidence showed that although plaintiff had exclusive use of the residence after separation, she was forced to expend considerable sums to repair and maintain the home. Thus, we cannot say that the trial court's refusal to consider plaintiff's post-separation occupation of the home as a factor in defendant's favor was unreasonable or arbitrary, and its decision may not be reversed. Harris, 84 N.C.App. at 358, 352 S.E.2d at 873.

In his eighth assignment of error, defendant argues that the trial court erred in its valuation of certain items of marital property, the most significant item being the marital residence. In Mishler v. Mishler, 90 N.C.App. 72, 367 S.E.2d 385, review denied, 323 N.C. 174, 373 S.E.2d 111 (1988), this Court held that the trial court's valuation of marital property will not be second-guessed on appeal as long as its findings are supported by competent evidence. Id. at 74, 367 S.E.2d at 386. In the instant case, two expert witnesses testified that the marital residence was worth $167,000, and plaintiff testified that it was worth $155,000 to $160,000. The trial court valued the residence at $167,000. Thus, there was plenary competent evidence to support the court's valuation of the residence, notwithstanding defendant's assertion that his expert witnesses (who valued the residence at $203,000 and $230,000) were "more qualified and certified" than plaintiff's experts. With respect to the other items of property mentioned by defendant, the values placed on them by the court were also supported by competent evidence, and we find no error.

In his ninth assignment of error, defendant argues that the judgment erroneously gives the clerk of court the authority to execute documents to effectuate property transfers as specified in the judgment. It is well settled that the trial court "has the authority, within its power in equity, to compel one former spouse to convey title to property to the other former spouse when justice requires." Geer v. Geer, 84 N.C.App. 471, 481, 353 S.E.2d 427, 433 (1987); see also N.C.Gen.Stat. § 50-20(g) (1987 & Cum.Supp. 1994). We reject defendant's attempt to overturn the present judgment simply because it places this authority in the clerk of court rather than in the court itself. See Mishler, 90 N.C.App. at 74, 367 S.E.2d at 387 (in complex litigation involving equitable distribution, appellate court will not remand judgment for obviously insignificant errors).

We have carefully reviewed defendant's third, fifth, sixth, seventh, tenth, and eleventh assignments of error, and we find no abuse of discretion on the part of the trial court.

Affirmed.

LEWIS and MARK D. MARTIN, JJ., concur.