{ "id": 8519937, "name": "JOANN BROWN v. D. T. BROWN, JR., Original Defendant v. PAUL G. BROWN, Additional Defendant", "name_abbreviation": "Brown v. Brown", "decision_date": "1993-09-21", "docket_number": "No. 9224DC669", "first_page": "15", "last_page": "25", "citations": [ { "type": "official", "cite": "112 N.C. App. 15" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "384 S.E.2d 546", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "325 N.C. 437", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2491072, 2489257, 2490993, 2488279, 2491871 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/nc/325/0437-04", "/nc/325/0437-01", "/nc/325/0437-02", "/nc/325/0437-05", "/nc/325/0437-03" ] }, { "cite": "382 S.E.2d 759", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "325 N.C. 259", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2492574 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/nc/325/0259-01" ] }, { "cite": "392 S.E.2d 603", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "326 N.C. 732", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5309774 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc/326/0732-01" ] }, { "cite": "276 S.E.2d 443", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "302 N.C. 550", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567833 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/302/0550-01" ] }, { "cite": "100 S.E. 131", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1919, "opinion_index": 0 }, { "cite": "178 N.C. 12", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11270627 ], "year": 1919, "opinion_index": 0, "case_paths": [ "/nc/178/0012-01" ] }, { "cite": "373 S.E.2d 104", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "323 N.C. 171", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2562113, 2566065, 2560632, 2561049, 2561822 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/323/0171-04", "/nc/323/0171-03", "/nc/323/0171-01", "/nc/323/0171-05", "/nc/323/0171-02" ] }, { "cite": "367 S.E.2d 347", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "90 N.C. App. 58", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522233 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc-app/90/0058-01" ] }, { "cite": "337 S.E.2d 856", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "315 N.C. 182", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4719882, 4716177, 4714993, 4714074, 4715326 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/315/0182-03", "/nc/315/0182-02", "/nc/315/0182-05", "/nc/315/0182-04", "/nc/315/0182-01" ] }, { "cite": "331 S.E.2d 765", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "76 N.C. App. 134", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526769 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc-app/76/0134-01" ] }, { "cite": "325 S.E.2d 469", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "473" } ], "opinion_index": 0 }, { "cite": "312 N.C. 626", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4757989 ], "year": 1985, "pin_cites": [ { "page": "630" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0626-01" ] }, { "cite": "290 S.E.2d 653", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "658" } ], "opinion_index": 1 }, { "cite": "305 N.C. 446", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571060 ], "year": 1982, "pin_cites": [ { "page": "452" } ], "opinion_index": 1, "case_paths": [ "/nc/305/0446-01" ] }, { "cite": "128 S.E.2d 590", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1962, "pin_cites": [ { "page": "594" } ], "opinion_index": 1 }, { "cite": "258 N.C. 271", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560322 ], "year": 1962, "pin_cites": [ { "page": "276" } ], "opinion_index": 1, "case_paths": [ "/nc/258/0271-01" ] }, { "cite": "381 S.E.2d 842", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "844" } ], "opinion_index": 1 }, { "cite": "95 N.C. App. 80", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8519529 ], "year": 1989, "pin_cites": [ { "page": "83" } ], "opinion_index": 1, "case_paths": [ "/nc-app/95/0080-01" ] }, { "cite": "239 S.E.2d 566", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "574" } ], "opinion_index": 1 }, { "cite": "293 N.C. 688", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566967 ], "year": 1977, "pin_cites": [ { "page": "701" } ], "opinion_index": 1, "case_paths": [ "/nc/293/0688-01" ] }, { "cite": "189 S.E.2d 802", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "pin_cites": [ { "page": "803" } ], "opinion_index": 1 }, { "cite": "15 N.C. App. 275", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549783 ], "year": 1972, "pin_cites": [ { "page": "276" } ], "opinion_index": 1, "case_paths": [ "/nc-app/15/0275-01" ] }, { "cite": "428 S.E.2d 865", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "866-67" } ], "opinion_index": 1 }, { "cite": "110 N.C. App. 48", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524656 ], "year": 1993, "pin_cites": [ { "page": "51" } ], "opinion_index": 1, "case_paths": [ "/nc-app/110/0048-01" ] }, { "cite": "255 S.E.2d 606", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "608", "parenthetical": "words not defined by statute must be given ordinary meaning" } ], "opinion_index": 1 }, { "cite": "41 N.C. App. 625", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551287 ], "year": 1979, "pin_cites": [ { "page": "628", "parenthetical": "words not defined by statute must be given ordinary meaning" } ], "opinion_index": 1, "case_paths": [ "/nc-app/41/0625-01" ] }, { "cite": "368 S.E.2d 595", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "599" } ], "opinion_index": 1 }, { "cite": "322 N.C. 396", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2515756 ], "year": 1988, "pin_cites": [ { "page": "403" } ], "opinion_index": 1, "case_paths": [ "/nc/322/0396-01" ] }, { "cite": "287 S.E.2d 786", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "793", "parenthetical": "\"All parts of the [same] act should be considered, and construed together.\"" } ], "opinion_index": 1 }, { "cite": "305 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565938 ], "year": 1982, "pin_cites": [ { "page": "13", "parenthetical": "\"All parts of the [same] act should be considered, and construed together.\"" } ], "opinion_index": 1, "case_paths": [ "/nc/305/0001-01" ] }, { "cite": "315 S.E.2d 522", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "523" } ], "opinion_index": 1 }, { "cite": "68 N.C. App. 738", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527925 ], "year": 1984, "pin_cites": [ { "page": "740" } ], "opinion_index": 1, "case_paths": [ "/nc-app/68/0738-01" ] }, { "cite": "409 S.E.2d 108", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "111" } ], "opinion_index": 1 }, { "cite": "104 N.C. App. 240", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521108 ], "year": 1991, "pin_cites": [ { "page": "245" } ], "opinion_index": 1, "case_paths": [ "/nc-app/104/0240-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 50-20", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "pin_cites": [ { "page": "(il)" }, { "page": "(il)" }, { "page": "(il)" } ], "opinion_index": 1 } ], "analysis": { "cardinality": 1028, "char_count": 26137, "ocr_confidence": 0.76, "pagerank": { "raw": 1.1576467836683918e-07, "percentile": 0.5832855506247662 }, "sha256": "d155888f9febee5bbdc0946461db84e2c94ac78c8ee4bb700e0bf3faf24fa87d", "simhash": "1:46299172570bedde", "word_count": 4375 }, "last_updated": "2023-07-14T15:48:17.524906+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge JOHNSON concurs.", "Judge GREENE dissents in a separate opinion." ], "parties": [ "JOANN BROWN v. D. T. BROWN, JR., Original Defendant v. PAUL G. BROWN, Additional Defendant" ], "opinions": [ { "text": "WYNN, Judge.\nThe plaintiff, JoAnn Brown, and the original defendant, D.T. Brown, Jr., were married on 30 July 1949 and separated on 26 July 1981. JoAnn Brown filed an action against D.T. Brown, Jr. on 13 January 1982 seeking alimony, possession of the marital home, and equitable distribution. The parties entered into a Consent Judgment on 25 February 1982, pursuant to which the plaintiff was awarded $1200/month temporary alimony and a writ of possession of the marital home. The Consent Judgment also provided that the defendant was to continue paying the premiums on the plaintiffs health and hospitalization insurance pending a final resolution, and that the defendant was entitled to have delivered to him certain personal property from the marital home.\nThereafter, on 26 May 1983, the trial court entered an Order allowing the plaintiff to amend her complaint to include as additional defendants Paul Brown, with whom D.T. Brown, Jr. was an equal partner in Brown Brothers Construction Company, and Paul\u2019s former wife, Gladys Brown. The plaintiff claimed an equitable interest in property titled in the name of Paul Brown, Paul Brown and Gladys Brown, or Paul Brown and third parties, on the theory that such property had been purchased with funds from the Brown Brothers Construction Company, the most substantial marital asset. Subsequently, on 10 August 1984, Paul Brown was granted partial summary judgment and the trial court ordered that all of plaintiff\u2019s equitable claims with regard \u201cto all properties titled in the name of Paul G. Brown, Gladys Brown and/or Paul G. Brown and third parties\u201d be dismissed with prejudice. By that same order, the trial court denied summary judgment as to all property titled in the name of Paul Brown and D.T. Brown, Jr. or Brown Brothers Construction Company.\nPursuant to Rule 53(a)(2)(b) of the North Carolina Rules of Civil Procedure, the trial court, on 12 December 1988, appointed a referee to hear from the parties and identify the marital assets of JoAnn Brown and D.T. Brown, Jr., determine their value as of the date of separation, and suggest an equitable distribution of the marital assets pursuant to N.C.G.S. \u00a7 50-20. The referee submitted a preliminary report to the court on 7 January 1991, to which the plaintiff and defendant filed objections and submitted additional information for consideration. Thereafter, the referee filed a supplemental report on 21 January 1992 which amended the original report based on the objections and additional information received from the parties.\nOn 22 October 1991, plaintiff filed a motion for an interim distribution of marital assets pursuant to N.C.G.S. \u00a7 50-20(il), enacted effective 1 October 1991. The trial court received memoranda from the parties regarding the motion and, on 2 March 1992, ordered D.T. Brown, Jr. to pay to plaintiff a sum of $400,000 cash and granted plaintiff a lien in that amount against all property titled in the name of D.T. Brown, Jr. The court further ordered that, if D.T. Brown, Jr. failed to pay the award, Brown Brothers Construction Company would be charged with making the payment and plaintiff would be entitled to foreclose on the company. Additionally, plaintiff\u2019s counsel were named as receivers to sell the assets of the Brown Brothers Construction Company in the event that the award was not paid, one-half the proceeds to be paid to JoAnn Brown and one-half to Paul Brown. From that Order the defendants appeal.\nBy their first assignment of error, the defendants argue that the interim award in the present case was made in contravention of N.C.G.S. \u00a7 50-20(il). We agree.\nN.C.G.S. \u00a7 50-20(il) was enacted effective 1 October 1991 and provides for an interim distribution of marital property as follows:\nAfter an action for equitable distribution has been filed the Court may, for just cause, order the spouse in control of marital assets to transfer the use and possession of some or all of those assets to the other spouse provided that any and all assets so transferred shall be subject to a full accounting when the property is ultimately allocated in an equitable distribution judgment. Any property transfer made pursuant to this subsection shall be made without prejudice to the rights of either spouse to claim a contrary classification, value, or distribution in the final equitable distribution trial.\nWe must determine whether the language in this section providing for the transfer of \u201cthe use and possession\u201d of a marital asset grants the trial court the authority to order the spouse in control of the marital assets to pay to the other spouse a lump sum cash award where such cash is not an existing marital asset. We hold that it does not.\nIn determining the meaning of a statute, it is useful to look to its \u201cpurpose and spirit . . . and what it sought to accomplish,\u201d as well as to the \u201chistory and circumstances surrounding the legislation and the reason for its enactment.\u201d Black v. Littlejohn, 312 N.C. 626, 630, 325 S.E.2d 469, 473 (1985).\nPrior to the enactment of \u00a7 50-20(il), the trial court had no authority to make an interim award of marital assets. Consequently, pending a final outcome of the equitable distribution proceeding, one spouse could retain control of all the cash and income-generating assets belonging to the marital estate, receiving the benefit of those assets, while the other retained nothing and derived no benefit from the marital estate. This resulted in hardship to the spouse who did not control the assets. It also gave the controlling spouse an incentive to delay the equitable distribution proceedings. Under \u00a7 50-20(il), the trial court is permitted to make an interim transfer of assets, so that the necessary delay pending the equitable distribution proceeding will not prejudice the party who is not in control of cash or income-producing assets.\nWe hold that the scope of \u00a7 50-20(il) is plainly limited to in kind asset transfers. It does not allow the court to order a cash payment, when cash is not an identifiable marital asset, nor to order the spouse who has control over a marital asset of substantial value to pay a lump sum cash amount to the other spouse as compensation for not having control of the asset.\nIn the case at bar, the trial court exceeded the scope of \u00a7 50-20(il). Although there was no evidence that $400,000 cash exists as a marital asset, the court ordered a $400,000 payment. To comply with this order, the defendant would either have to tap non-marital assets or liquidate his share of Brown Brothers Construction, both of which exceed the scope of relief under \u00a7 50-20(il). Section 50-20(il) was not intended to make the transferring spouse transfer something he or she does not possess.\nIt is plain on the face of the statute that the provision for transfer of \u201cthe use and possession\u201d of a marital asset contemplates the transfer of an asset in kind. Transferring the \u201cuse and possession\u201d means that the spouse receiving the transfer is entitled to hold the asset pending a final equitable distribution award and use it as it was meant to be used. As such, a spouse might be required to transfer the use and possession of the marital home so that the other spouse can live there; a spouse in control of rental property belonging to the marital estate may be required to transfer it so the other spouse can benefit from the rental income generated by the property; or a spouse may be required to transfer a marital bank account so the other spouse has access to cash.\nBecause it authorizes only an interim transfer of assets pending the equitable distribution, the statute is designed not to prejudice either party\u2019s position at the final equitable distribution. The statute provides that \u201cany and all assets so transferred shall be subject to a full accounting when the property is ultimately allocated in an equitable distribution judgment,\u201d and \u201c[a]ny property transfer made pursuant to this subsection shall be made without prejudice to the rights of either spouse to claim a contrary classification, value, or distribution in the final equitable distribution trial.\u201d N.C.G.S. \u00a7 50-20\u00dc1).\nAn order requiring a transferor spouse to break up assets so that cash can be transferred would cause just the prejudice this subsection seeks to avoid. Here, defendant faces the sale of the family business to generate the lump sum cash payment. Since the business is the parties\u2019 primary source of income, such sale would certainly result in long-term financial prejudice to both parties.\nDefining asset transfers as in kind transfers is the only understanding that makes sense in the context of the rest of the statute. North Carolina\u2019s law on the distribution of marital property upon divorce is strictly governed by statute. All equitable distributions and distributive awards are to be made in close accord with \u00a7 50-20. Accordingly, in discerning the meaning of this new provision, we must take the statute as a whole into account.\nAn important feature of the statute is its presumption that equitable distributions are to be in kind. Under \u00a7 50-20, the trial court is to classify property as either marital or separate, value it, and distribute it between the parties. Cable v. Cable, 76 N.C. App. 134, 331 S.E.2d 765, disc. rev. denied, 315 N.C. 182, 337 S.E.2d 856 (1985); Beightol v. Beightol, 90 N.C. App. 58, 367 S.E.2d 347, disc. rev. denied, 323 N.C. 171, 373 S.E.2d 104 (1988). Only upon a finding by the court that \u201can equitable distribution of all or portions of the marital property in kind would be impractical,\u201d can the presumption of an in kind distribution be overcome and a distributive award permitted. N.C.G.S. \u00a7 50-20(e). The distributive award is designed as a secondary remedy to the equitable distribution, to \u201cfacilitate, effectuate or supplement a distribution of marital property.\u201d N.C.G.S. \u00a7 50-20(e).\nThere is a very good reason why distributive awards under \u00a7 50-20(e) are not contemplated under \u00a7 50-20(il). The interim award is precisely that: an award designed to give a party interim relief in anticipation of a final resolution of the estate. The interim award is useful to the party without assets precisely because it can be awarded quickly. It is not slowed by the extensive findings and hearings required for the final distribution. But by the same token, because such findings have not yet been made, it is impossible for the court making the interim award to meet the \u00a7 50-20(e) requirement that it determine the impracticability of an equitable distribution before ordering a distributive award.\nNot allowing a cash distributive award prior to a final classification and valuing of the marital estate is also consistent with the statute\u2019s goal of keeping the marital estate as intact as possible until the final equitable distribution order is entered. See N.C.G.S. \u00a7 50-20(i) (providing that the trial court may enter injunctive relief or require a bond or other assurance to avoid the disappearance, waste, or conversion of marital property); see also N.C.G.S. \u00a7 50-20(c)(lla) (party\u2019s waste of marital property is a distributional factor as is the effort to maintain or preserve such property).\nOur interpretation is further aided by basic principles of statutory construction.\nIt is a well-established principle of statutory construction that when a statute is amended, the existing law is not presumed to be changed further than that expressly declared in the amendment. 82 C.J.S. Statutes \u00a7 384 (1953). Section 50-20(il) only provided for asset transfers. It did not mention lump sum cash payments or distributive awards. Therefore, such remedies are not options under \u00a7 50-20(il). A statute directing performance in a particular manner by implication forbids performance in any other manner. 82 C.J.S. Statutes \u00a7 327 (1953).\nThe fact that the drafters of \u00a7 50-20(il) used conspicuously different language from that used in \u00a7 50-20(e) further shows that \u201casset transfers\u201d were not intended to include distributive awards. While \u00a7 50-20(e) provides for \u201cdistribution of marital property\u201d and \u201cdistributive awards,\u201d \u00a7 50-20(il) provides that the court may order a spouse to \u201ctransfer the use and possession of some or all of (the marital) assets.\u201d (Emphasis added). It is a tenet of statutory construction that \u201ca change in phraseology when dealing with a subject raises a presumption of a change in meaning.\u201d Latham v. Latham, 178 N.C. 12, 100 S.E. 131 (1919). If the legislature had wanted to allow the trial court to make interim lump sum cash awards pending the final outcome of an equitable distribution action, it could have expressly written \u00a7 50-20\u00dc1) to include \u201cdistribution of marital property\u201d or \u201ca distributive award\u201d as well as or instead of \u201ctransfer the use and possession of . . . assets\u201d language. The fact that the legislature had the option to include this language, but chose not to, is presumptive evidence that it intended that the provision not encompass such options.\nAnother well-established principle of statutory construction is that a provision will not be read in a way that renders another provision of the same statute meaningless. Porsh Builders, Inc. v. City of Winston-Salem, 302 N.C. 550, 276 S.E.2d 443 (1981), (statute must be construed so that none of its provisions shall be rendered useless or redundant); State v. Tew, 326 N.C. 732, 392 S.E.2d 603 (1990); Sutton v. Aetna Cas. & Sur. Co., 325 N.C. 259, 382 S.E.2d 759, reh\u2019g denied, 325 N.C. 437, 384 S.E.2d 546 (1989). However, that is just what would occur if courts were allowed to order equitable and lump sum distributions through \u00a7 50-20(il). There would be no need to use the final equitable distribution proceedings to divide and allocate spouses\u2019 assets, because division and distribution would have occurred at the interim stage. Thus, \u00a7\u00a7 50-20(a) and (d), under which courts presently classify, value, and distribute property, would be unnecessary. Clearly, the legislature did not intend such a result.\nWe stress that adequate relief for this plaintiff is available within the scope of the statute. If the trial court wants JoAnn Brown to benefit from the principal marital asset, Brown Brothers Construction, it can order the transfer to her of some or all of defendant\u2019s one-half interest in the company. As possessor of that interest, she can then use it to realize a share of the company\u2019s profits, as defendant would otherwise do, until a final equitable distribution award can be entered. Such a transfer would preserve the marital estate and not involve a potential sale of the family business, a sale which as previously indicated would certainly result in long-term financial prejudice for all parties involved, which prejudice \u00a7 50-20(il) specifically seeks to avoid.\nBy their second and third assignments of error, the defendants contend that the trial court erred in not considering all of the provisions of \u00a7 50-20 in making the award and that the trial court erred in making the award prior to ruling on the objections and exceptions filed by the parties with respect to the referee\u2019s report. Because we hold that the trial court erred in awarding the lump sum cash award, it is unnecessary for us to decide the merits of these and the other remaining assignment of error. However, because the second and third assignments relate to the application of \u00a7 50-20(il), we find it necessary to comment briefly. Section 50-20(il) provides for an interim transfer to be ordered prior to a final decision in the equitable distribution award. If the trial court considers all provisions of \u00a7 50-20 and rules on all the objections and exceptions to the referee\u2019s report, the end result would constitute a final order of equitable distribution. Requiring such considerations, then, would render the interim transfer provision inconsequential, which we do not find to be the intention of the legislature.\nFor the foregoing reasons, the decision of the trial court is\nVacated.\nJudge JOHNSON concurs.\nJudge GREENE dissents in a separate opinion.", "type": "majority", "author": "WYNN, Judge." }, { "text": "Judge Greene\ndissenting.\nI disagree, for the reasons given below in Section I, with the majority that the interim cash award of $400,000 to plaintiff is \u201cin contravention\u201d of N.C. Gen. Stat. \u00a7 50-20(il). I agree, for the reasons given below in Section II, that it was not necessary for the trial court to consider \u201call of the provisions of [s]ection 50-20 in making the award\u201d and to rule \u201con the objections and exceptions filed by the parties with respect to the referee\u2019s report.\u201d I do note, however, that because the award is not a final adjudication of the merits of the case and because any interim award is subject to a full accounting upon entry of the final equitable distribution judgment, the appeal is interlocutory, does not affect a substantial right, and would ordinarily be dismissed. See Baker v. Rushing, 104 N.C. App. 240, 245, 409 S.E.2d 108, 111 (1991). Because, however, of the important issues presented relating to the proper application of N.C. Gen. Stat. \u00a7 50-20(il), I would treat this appeal as a petition for writ of certiorari and grant the writ. N.C.G.S. \u00a7 7A-32(c) (1989); see Jerson v. Jerson, 68 N.C. App. 738, 740, 315 S.E.2d 522, 523 (1984).\nI\nThe basic issue presented is whether N.C. Gen. Stat. \u00a7 50-20(il) permits a trial judge to make an interim distributive award.\nAlthough Section 50-20(il) is silent on the issue of distributive awards, the intent of the legislature must be determined from an examination of the entire statute of which Section 50-20(il) is a part. See Utilities Commission v. Duke Power Co., 305 N.C. 1, 13, 287 S.E.2d 786, 793 (1982) (\u201cAll parts of the [same] act should be considered, and construed together.\u201d). Section 50-20(e), a portion of the statute of which Section 50-20(il) is a part, permits distributive awards when \u201cequitable distribution of all or portions of the marital property in kind would be impractical.\u201d N.C.G.S. \u00a7 50-20(e) (Supp. 1992). Although Section 50~20(e) has generally been used in the context of final awards, there is no language in the section that would prohibit its use in the context of interim awards. Furthermore, because distributive awards in the context of Section 50-20(il) can assist the trial court in achieving \u201cequity between the parties\u201d and \u201cfacilitate, effectuate or supplement\u201d an interim transfer of marital assets, they are sanctioned by Section 50-20(e). See N.C.G.S. \u00a7 50-20(e).\nAs with all equitable distribution judgments, an interim distributive award must include written findings of fact adequate to support the conclusions of law. N.C.G.S. \u00a7 50-20(j) (Supp. 1992); Armstrong v. Armstrong, 322 N.C. 396, 403, 368 S.E.2d 595, 599 (1988). Accordingly, upon a finding that there exists \u201cjust cause\u201d for an interim order to transfer \u201cthe use and possession\u201d of marital assets and upon the additional finding that an interim transfer of marital assets in kind is impractical, the trial court may enter an interim distributive award.\nIn this case, the trial court found as a fact that there was \u201cjust cause\u201d for the interim award and there is evidence in this record to support that finding. Although not defined by the statute, the ordinary meaning of the term includes causes that are \u201cfair and honest,\u201d \u201cbased on reasonable grounds,\u201d Black\u2019s Law Dictionary 1001 (4th ed. 1968), \u201cproperly due or merited,\u201d and \u201cbased on fact or sound reason.\u201d American Heritage Dictionary 694 (2d ed. 1985). See Reed v. Byrd, 41 N.C. App. 625, 628, 255 S.E.2d 606, 608 (1979) (words not defined by statute must be given ordinary meaning). This record reveals that the plaintiff has not had the money to fund this lawsuit which has extended over a decade; plaintiff has worked minimum-wage jobs; she has been deprived of a car for the last five years; she has gone from time to time without heat in the house; she has had access only to a minuscule part of the marital estate; and defendant D.T. Brown, Jr. has had access to and control of virtually all of the income-producing marital assets since their separation in 1981.\nThe trial court was also required, as a prerequisite to an interim distributive award, to include in its order a finding of fact that an in kind transfer of marital assets was impractical. Although there is no such finding in this order, this omission by the trial court cannot serve as a basis for reversing the award because defendants\u2019 assignment of error is inadequate to preserve this error for review. The relevant assignment of error, \u201c[t]he Trial Court\u2019s award . . . without evidence to support the facts, facts to support the conclusions, and conclusions to support its Order,\u201d fails to direct this Court to the findings challenged as inadequate and is no more than a broadside attack on the order of the court and thus ineffective. N.C.R. App. P. 10(c)(1) (1992); see also Jones v. Shoji, 110 N.C. App. 48, 51, 428 S.E.2d 865, 866-67 (1993). In any event, all the evidence in this record would support a finding that it would have been impractical to order the defendants to transfer a portion of the paving and construction company to the plaintiff. Such a transfer in kind would only have disrupted the operation of the construction company, which was a partnership owned by the plaintiff\u2019s former husband and his father and brother. Furthermore, converting the interest in the partnership to usable cash would have been most difficult.\nII\nThe issue presented is whether an interim award under Section 50-20(il) must be determined, as defendants argue, consistent with every other \u201cprovision of Section 50-20 and the considerable body of equitable distribution caselaw.\u201d\nAn interim allocation of marital assets is in the nature of a preliminary injunction. As such, the matter can be decided on verified pleadings and affidavits, N.C.G.S. \u00a7 1-485 (1983); State of North Carolina ex rel. Morgan v. Dare To Be Great, Inc., 15 N.C. App. 275, 276, 189 S.E.2d 802, 803 (1972), \u201cbut the court may direct that the matter be heard wholly or partly on oral testimony or depositions[,]\u201d N.C.G.S. \u00a7 1A-1, Rule 43(e) (1990); and the moving party is required to make only a prima facie showing, that is that her ultimate success in the equitable distribution proceeding is a likelihood, at least to the extent of the interim award requested. See Ridge Community Investors, Inc. v. Berry, 293 N.C. 688, 701, 239 S.E.2d 566, 574 (1977). Accordingly, the procedure utilized and the evidence considered by the trial court differs substantially from that required for the entering of a final equitable distribution judgment. For example, it is not necessary for the trial court to accept evidence on the distributional factors of Section 50-20(c). To hold otherwise would convert the interim award proceeding into a full trial on the merits and thus preclude any relief until the parties are fully prepared to proceed to a full scale trial and the case can be scheduled for trial. This summary proceeding is further justified by the language of the statute which requires \u201ca full accounting when the property is ultimately allocated in an equitable distribution judgment.\u201d N.C.G.S. \u00a7 50-20(il) (Supp. 1992).\nIn this case, the trial court considered, in addition to oral and written arguments, a referee\u2019s report which valued the marital property at $2,400,000. Thus, based on the value of the marital estate and the fact that there was no evidence of any marital debt, there was a likelihood that the plaintiff would ultimately prevail on the merits at least to the extent of $400,000.\nFurthermore, because of the preliminary nature of the interim award proceeding, it was unnecessary for the trial court to rule on defendants\u2019 objections and exceptions to the referee\u2019s report prior to ordering an interim allocation of marital assets.\nN.C. Gen. Stat. \u00a7 1A-1, Rule 53(g)(2) requires the trial judge, upon exception duly noted by a party, to consider the evidence and \u201cgive his own opinion and conclusion, both upon the facts and the law.\u201d N.C.G.S. \u00a7 1A-1, Rule 53(g)(2) (1990); Quate v. Caudle, 95 N.C. App. 80, 83, 381 S.E.2d 842, 844 (1989). This duty, however, applies only as a prerequisite to the entry of a final judgment based on the report. In the case presented, the award was interim in nature and any findings and conclusions entered by the trial court are \u201cnot res adjudicata on the final hearing.\u201d Schloss v. Jamison, 258 N.C. 271, 276, 128 S.E.2d 590, 594 (1962). Thus, the defendants will have ample opportunity to have their objections and exceptions ruled on by the trial court prior to the entry of the final judgment of equitable distribution.\nBased on the above analysis, I would affirm the order of the trial judge granting plaintiff\u2019s motion for an interim cash award under Section 50-20(il).\n. Because the determination of \u201cjust cause\u201d is reached by natural reasoning, not by application of fixed rules of law, it is an ultimate finding of fact, not a conclusion of law. See Quick v. Quick, 305 N.C. 446, 452, 290 S.E.2d 653, 658 (1982).", "type": "dissent", "author": "Judge Greene" } ], "attorneys": [ "Petree Stockton, by Kevin L. Miller and W. Mark Conger, and McElwee, McElwee & Ward, by William H. McElwee, III, for the plaintiff-appellee.", "Norris & Peterson, P.A., by Allen J. Peterson, and Hemphill & Gavenus, by Kathryn Hemphill, for defendants-appellants." ], "corrections": "", "head_matter": "JOANN BROWN v. D. T. BROWN, JR., Original Defendant v. PAUL G. BROWN, Additional Defendant\nNo. 9224DC669\n(Filed 21 September 1993)\nDivorce and Separation \u00a7 112 (NCI4th)\u2014 interim distribution of marital property \u2014lump sum cash award \u2014no authority of court to order\nIn N.C.G.S. \u00a7 50-20(11), which allows for an interim distribution of marital property, language providing for the transfer of \u201cthe use and possession\u201d of a marital asset does not grant the trial court the authority to order the spouse in control of the marital assets to pay to the other spouse a lump sum cash award where such cash is not an existing marital asset.\nAm Jur 2d, Divorce and Separation \u00a7\u00a7 950 et seq.\nJudge Greene dissenting.\nAppeal by defendants from Order entered 2 March 1992 by Judge Alexander Lyerly in Watauga County District Court. Heard in the Court of Appeals 25 May 1993.\nPetree Stockton, by Kevin L. Miller and W. Mark Conger, and McElwee, McElwee & Ward, by William H. McElwee, III, for the plaintiff-appellee.\nNorris & Peterson, P.A., by Allen J. Peterson, and Hemphill & Gavenus, by Kathryn Hemphill, for defendants-appellants." }, "file_name": "0015-01", "first_page_order": 45, "last_page_order": 55 }