{ "id": 8524447, "name": "SELINDA JUDKINS, Plaintiff-Appellee v. JAMES C. JUDKINS, JR., Defendant-Appellant", "name_abbreviation": "Judkins v. Judkins", "decision_date": "1994-03-01", "docket_number": "No. 9312DC302", "first_page": "734", "last_page": "743", "citations": [ { "type": "official", "cite": "113 N.C. App. 734" } ], "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": "41 ALR4th 481", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "opinion_index": -1 }, { "cite": "54 ALR2d 390", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "opinion_index": -1 }, { "cite": "356 S.E.2d 790", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "319 N.C. 678", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4744225, 4749332, 4742493 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc/319/0678-01", "/nc/319/0678-02", "/nc/319/0678-03" ] }, { "cite": "354 S.E.2d 506", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "319 N.C. 367", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4745005 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc/319/0367-01" ] }, { "cite": "420 S.E.2d 212", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "107 N.C. App. 382", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527619 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc-app/107/0382-01" ] }, { "cite": "378 S.E.2d 794", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "324 N.C. 336", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2485127, 2486274, 2483917, 2488159 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/nc/324/0336-02", "/nc/324/0336-04", "/nc/324/0336-03", "/nc/324/0336-01" ] }, { "cite": "374 S.E.2d 406", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "92 N.C. App. 299", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526829 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc-app/92/0299-01" ] }, { "cite": "240 S.E.2d 360", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "294 N.C. 146", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571110 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc/294/0146-01" ] }, { "cite": "234 S.E.2d 46", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "33 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8547611 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc-app/33/0001-01" ] }, { "cite": "414 S.E.2d 767", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "331 N.C. 117", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2498177, 2499816, 2501001, 2498421, 2499612 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc/331/0117-01", "/nc/331/0117-05", "/nc/331/0117-02", "/nc/331/0117-04", "/nc/331/0117-03" ] }, { "cite": "411 S.E.2d 167", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "104 N.C. App. 739", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524001 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc-app/104/0739-01" ] }, { "cite": "88 L.Ed. 489", "category": "reporters:federal", "reporter": "L. Ed.", "weight": 2, "year": 1943, "opinion_index": 0 }, { "cite": "320 U.S. 809", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6167552, 6167905, 6167811, 6167463, 6167721, 6167309, 6167988, 6167639, 6167387 ], "year": 1943, "opinion_index": 0, "case_paths": [ "/us/320/0809-04", "/us/320/0809-08", "/us/320/0809-07", "/us/320/0809-03", "/us/320/0809-06", "/us/320/0809-01", "/us/320/0809-09", "/us/320/0809-05", "/us/320/0809-02" ] }, { "cite": "319 U.S. 561", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 366821 ], "weight": 2, "year": 1943, "opinion_index": 0, "case_paths": [ "/us/319/0561-01" ] }, { "cite": "271 S.E.2d 58", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "301 N.C. 123", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564391 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/301/0123-01" ] }, { "cite": "327 S.E.2d 252", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "73 N.C. App. 639", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525290 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc-app/73/0639-01" ] }, { "cite": "367 S.E.2d 7", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "89 N.C. App. 689", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524604 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc-app/89/0689-01" ] }, { "cite": "315 S.E.2d 522", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "68 N.C. App. 738", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527925 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc-app/68/0738-01" ] }, { "cite": "64 S.E.2d 848", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1951, "opinion_index": 0 }, { "cite": "233 N.C. 493", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8611773 ], "year": 1951, "opinion_index": 0, "case_paths": [ "/nc/233/0493-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 1-75.7", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "10 U.S.C. \u00a7 1408", "category": "laws:leg_statute", "reporter": "U.S.C.", "year": 1992, "pin_cites": [ { "page": "(c)(4)" } ], "opinion_index": 0 }, { "cite": "50 U.S.C. \u00a7 521", "category": "laws:leg_statute", "reporter": "U.S.C.", "pin_cites": [ { "parenthetical": "emphasis added" } ], "opinion_index": 1 }, { "cite": "88 L.Ed. 489", "category": "reporters:federal", "reporter": "L. Ed.", "year": 1943, "opinion_index": 1 }, { "cite": "320 U.S. 809", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6167552, 6167905, 6167811, 6167463, 6167721, 6167309, 6167988, 6167639, 6167387 ], "year": 1943, "opinion_index": 1, "case_paths": [ "/us/320/0809-04", "/us/320/0809-08", "/us/320/0809-07", "/us/320/0809-03", "/us/320/0809-06", "/us/320/0809-01", "/us/320/0809-09", "/us/320/0809-05", "/us/320/0809-02" ] }, { "cite": "319 U.S. 561", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 366821 ], "weight": 2, "year": 1943, "opinion_index": 1, "case_paths": [ "/us/319/0561-01" ] } ], "analysis": { "cardinality": 725, "char_count": 18152, "ocr_confidence": 0.759, "pagerank": { "raw": 4.4187802680604515e-07, "percentile": 0.9204430451350638 }, "sha256": "df65372e989da26577de17363a0b255b590fa55864ca6d4bfbd988f0106c5400", "simhash": "1:e16d5a383567adf0", "word_count": 2951 }, "last_updated": "2023-07-14T17:21:41.323369+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge JOHN concurs in the result in a separate opinion.", "Judge McCRODDEN concurs." ], "parties": [ "SELINDA JUDKINS, Plaintiff-Appellee v. JAMES C. JUDKINS, JR., Defendant-Appellant" ], "opinions": [ { "text": "WELLS, Judge.\nWe must first consider defendant\u2019s argument that the trial court lacked jurisdiction to distribute defendant\u2019s disposable retired pay. Defendant contends that by the terms of the Uniformed Services Former Spouses\u2019 Protection Act, 10 U.S.C. \u00a7 1408(c)(4) (1992), the trial court lacked subject matter jurisdiction to distribute his military pension. We disagree.\nSection 1408(c)(4) provides:\nA court may not treat the disposable retired pay of a member in the manner described in paragraph (1) unless the court has jurisdiction over the member by reason of (A) his residence, other than because of military assignment, in the territorial jurisdiction of the court, (B) his domicile in the territorial jurisdiction of the court, or (C) his consent to the jurisdiction of the court.\n(Emphasis added.) Defendant contends that this provision establishes the requirements for a court\u2019s exercise of subject matter jurisdiction. We read this provision as establishing the requirements for personal jurisdiction and proceed to determine whether the trial court properly obtained in personam jurisdiction over defendant as required by \u00a7 1408(c)(4).\nA court may exercise personal jurisdiction in an action over a person who has made a general appearance in that action. N.C. Gen. Stat. \u00a7 1-75.7 (1) (1983). \u201cA general appearance is one whereby the defendant submits his person to the jurisdiction of the court by invoking the judgment of the court in any manner on any question other than that of the jurisdiction of the court over his person.\u201d In re Blalock, 233 N.C. 493, 64 S.E.2d 848 (1951). Other than a motion to dismiss for lack of jurisdiction virtually any action constitutes a general appearance. Jerson v. Jerson, 68 N.C. App. 738, 315 S.E.2d 522 (1984).\nPlaintiff filed this action seeking a divorce from bed and board, child custody, child support, alimony, and equitable distribution. Defendant filed an answer containing counterclaims for child custody and support and equitable distribution. Defendant made a general appearance thereby consenting to personal jurisdiction by seeking affirmative relief in his answer without contesting personal jurisdiction. Stern v. Stern, 89 N.C. App. 689, 367 S.E.2d 7 (1988); Hale v. Hale, 73 N.C. App. 639, 327 S.E.2d 252 (1985). Consequently, the trial court obtained personal jurisdiction over defendant as required by \u00a7 1408(c)(4).\nWe next consider defendant\u2019s argument that the trial court erred in denying his motion for a stay pursuant to the Soldiers\u2019 and Sailors\u2019 Civil Relief Act of 1940, 50 U.S.C. App. \u00a7 521 (1988). Defendant contends that the trial court\u2019s findings do not support its denial of his motion for a stay. We disagree.\nThe trial court made the following findings of fact in its order denying defendant\u2019s motion;\nI\nThat the Plaintiff was present in Court and represented by Attorney John Blackwell, Jr. and the Defendant was not present in Court but was represented by Attorney Ronnie M. Mitchell.\nII\nThat a Complaint was filed on August 3,1988 seeking a divorce from bed and board, alimony, custody and support of issue and equitable distribution of marital property. That the Defendant filed an answer and counterclaim, duly verified seeking custody and support of issue and equitable distribution of marital property. That an order was entered on April 27, 1989 providing for alimony pendente lite, and custody and support of issue; that Defendant has complied with said order since that time.\nIII\nThat prior to, and subsequent to, the aforesaid Order discovery was initiated by Counsel for Plaintiff by filing numerous motions for discovery, including interrogatories, request for documents and requests for depositions.\nIV\nThat discovery was interrupted in August of 1990 as a result of the action in the Persian Gulf at which time the Court continued the matter over because of Defendant\u2019s service with the United States military in that action.\nV\nThat, thereafter, the Court on numerous occasions entered orders continuing discovery and continuing the trial; that motions to compel discovery from the Defendant were filed in July 1991 and in December 1991. That on February 7, 1992, Judge Andrew Dempster entered an order to compel production of documents; that thereafter, the Court entered subsequent orders to compel production of documents.\nVI\nThat this matter was scheduled for trial on April 13, 1992 at which time the Defendant requested the matter be continued due to military duties; that this Court contacted Sergeant Major Joseph in Dunn Loring, Virginia, made inquiry about the Defendant\u2019s ability to appear in Court, and was informed that he was in fact on a mission at that time, and that he would be available in July of 1992; that the Court entered an order at that time finding that the Defendant had failed to comply with previous orders of the Court requiring the Defendant to file the requested discovery and indicated that at the trial of the Equitable Distribution matter, the Court would impose sanctions for the Defendant\u2019s failure to comply; the Court then scheduled this matter for hearing in July 1992.\nVII\nThat at the hearing scheduled in July 1992, the Defendant\u2019s attorney requested that the matter be continued once again because the Defendant would not be able to appear for trial at that time; That Defendant\u2019s attorney asserted that the Defendant would be available to complete discovery and the pretrial order in this case on or before August 3, 1992, and that the Defendant would be available for trial on August 31, 1992.\nVIII\nThat the Court, pursuant to the Defendant\u2019s request that the matter be continued and scheduled peremptorily for hearing on August 31, 1992, provided the Defendant the opportunity to complete discovery and file a pretrial order on or before August 3, 1992; that the Court set the case peremptorily for hearing on August 31, 1992; that at the request of the Defendant\u2019s attorney, the Court extended the time to file the pre trial [sic] order from August 3, 1992 until August 24, 1992; that as of the date of this hearing, the Defendant has failed to provide the requested discovery, or to file a pretrial order in this case.\nIX\nThat on the date of this hearing the Court received the Defendant\u2019s motion to continue and a motion for a stay pursuant to the Soldiers\u2019 and Sailors\u2019 Civil Relief Act of 1940, 50 App. U.S.C. 501 etseq.\nX\nThat based upon the foregoing facts the Court finds that the Defendant has failed to exercise good faith and prope[r] diligence in appearing and resolving his case, and the Court in its discretion enters this order:\nIt Is, THEREFORE, in the discretion of the Court ordered:\n1. That the Defendant\u2019s motion for a stay pursuant to the Soldiers\u2019 and Sailors\u2019 Civil Relief Act of 1940, 50 App. U.S.C. 501 et seq is denied.\n2. That the Defendant\u2019s motion to continue is denied.\n3. This cause is retained for further orders of this Court.\nSection 521 of the Soldiers\u2019 and Sailors\u2019 Civil Relief Act of 1940 provides:\nAt any stage thereof any action or proceeding in any court in which a person in military service is involved, either as plaintiff or defendant, during the period of such service or within sixty days thereafter may, in the discretion of the court in which it is pending, on its own motion, and shall, on application to it by such person or some person on his behalf, be stayed as provided by this Act, unless, in the opinion of the court, the ability of plaintiff to prosecute the action or the defendant to conduct his defense is not materially affected by reason of his military service.\nThe question for determination is whether the trial court abused its discretion by not granting defendant\u2019s motion for a stay. A decision which rests in the discretion of the trial court will not be reversed absent a showing that the decision lacked any basis in reason. Clark v. Clark, 301 N.C. 123, 271 S.E.2d 58 (1980). In Boone v. Lightner, 319 U.S. 561, 87 L. Ed. 1587, reh\u2019g denied, 320 U.S. 809, 88 L.Ed. 489 (1943), the United States Supreme Court stated that the Soldiers\u2019 and Sailors\u2019 Civil Relief Act of 1940 \u201cdoes not expressly require findings\u201d but \u201crequires only that the court be of opinion that ability to defend is not materially affected by military service.\u201d The Soldiers\u2019 and Sailors\u2019 Civil Relief Act of 1940 \u201ccannot be construed to require continuance on mere showing that the defendant was in ... military service.\u201d Id. For a serviceman to be entitled to a stay under \u00a7 521, \u201cthe man in service must himself exhibit some degree of good faith and his counsel some degree of diligence.\u201d In re Paper Writing of Vestal, 104 N.C. App. 739, 411 S.E.2d 167 (1991), review denied, 331 N.C. 117, 414 S.E.2d 767 (1992).\nThe only evidence of record of defendant\u2019s unavailability after the Persian Gulf War is a letter from the Department of the Army which states that defendant was scheduled to depart for Southeast Asia on 30 August 1992 for approximately 46 days. The record fails to disclose whether defendant at any time requested leave to defend this action or whether leave was likely to be granted upon request. In addition, defendant made no showing of the ways his defense would be prejudiced or his rights materially affected by his absence. Our examination of the record reveals that the trial court\u2019s findings of fact are substantially supported by the evidence, and the showing made by defendant of his unavailability does not provide us with sufficient information to conclude that the trial court erred in denying defendant\u2019s motion for a stay. Booker v. Everhart, 33 N.C. App. 1, 234 S.E.2d 46 (1977), rev\u2019d on other grounds, 294 N.C. 146, 240 S.E.2d 360 (1978); In re Paper Writing of Vestal, supra. We accept the trial court\u2019s finding that \u201cdefendant has failed to exercise good faith and prope[r] diligence in appearing and resolving his case\u201d as evidencing the opinion of the trial court that defendant\u2019s ability to defend was not materially affected by his military service.\nDefendant next contends that the following finding of fact does not support the trial court\u2019s conclusion to make an unequal distribution of marital property:\nThat the Court has considered all of the factors as set forth in G.S. 50-20(c) to include the following:\n1. The earning ability of each party;\n2. The need of the custodial parent for the use and possession of the marital residence and furniture located therein;\n3. The value of defendant\u2019s separate property;\n4. The defendant\u2019s expectation of additional pension.\nThat based on the foregoing, the Court is of the opinion and finds as a fact that an unequal division of the marital assets and liabilities is equitable ....\nAlthough there is a presumption that an equal division of marital property is equitable, so long as the trial court considers all the distributional factors in \u00a7 50-20(c) and makes sufficient findings as to each statutory factor on which evidence is offered, the finding of a single distributional factor by the trial court may support an unequal division. Locklear v. Locklear, 92 N.C. App. 299, 374 S.E.2d 406 (1988), review allowed, 324 N.C. 336, 378 S.E.2d 794 (1989); Cobb v. Cobb, 107 N.C. App. 382, 420 S.E.2d 212 (1992). The foregoing finding of the trial court comports with these requirements. The record reveals that the other findings made by the trial court are supported by the evidence and the conclusions of law are supported by the findings of fact.\nDefendant also asserts that the trial court erred by distributing more than 50 percent of defendant\u2019s military pension. We disagree. The trial court employed the fixed percentage method of evaluating defendant\u2019s pension. By using this method, the trial court calculated the time defendant participated in the pension plan during his marriage to plaintiff and the time defendant participated in the plan in toto and determined that 88.66 percent of defendant\u2019s pension was marital property. This calculation is in accordance with Seifert v. Seifert, 319 N.C. 367, 354 S.E.2d 506, reh\u2019g denied, 319 N.C. 678, 356 S.E.2d 790 (1987). Accordingly, we find that the trial court did not abuse its discretion by awarding plaintiff 50 percent of the marital portion of defendant\u2019s pension.\nDefendant makes no argument concerning the propriety of the trial court\u2019s classification, valuation, or distribution of the real and remaining personal property of the parties. The marital property consisted of real property, including a farm, valued at $140,000.00, the marital residence valued at $22,055.97, and personal property, which consisted primarily of defendant\u2019s military pension, valued at $237,880.00. The parties\u2019 net marital property totaled $458,260.49. The trial court distributed to plaintiff 50 percent of the marital portion of defendant\u2019s disposable retired pay, a distributive award of $25,000.00, and real and personal property valued at $67,504.89. The trial court distributed to defendant the farm valued at $140,000.00 and personal property valued at $37,875.60.\nThe trial court properly classified, valued and distributed the parties\u2019 marital property.\nThe orders and judgment appealed from are\nAffirmed.\nJudge JOHN concurs in the result in a separate opinion.\nJudge McCRODDEN concurs.", "type": "majority", "author": "WELLS, Judge." }, { "text": "Judge JOHN\nconcurring in the result.\nI concur in the result reached by the majority because I agree, under Boone v. Lightner, 319 U.S. 561, 87 L.Ed. 1587, reh\u2019g denied, 320 U.S. 809, 88 L.Ed. 489 (1943), that the extensive findings in this case sufficiently reflect the court\u2019s \u201copinion ... that defendant\u2019s ability to defend was not materially affected by his military service.\u201d\nHowever, absent the comprehensive findings found in Boone and the case sub judice from which a court\u2019s opinion may fairly be determined, I believe the prescriptive language of the statute (\u201caction or proceeding . . . shall ... on application ... be stayed . . . unless, in the opinion of the court, the ability of . . . the defendant to conduct his defense is not materially affected by reason of his military service\u201d) obliges a trial court in its ruling specifically to address the legislatively mandated opinion. 50 U.S.C. \u00a7 521 (emphasis added). I therefore write separately to emphasize that, at a minimum, the better practice would be for the record to contain the trial court\u2019s statutorily required opinion stated with particularity. It would not then be necessary on appeal to attempt to ascertain it in some other fashion.", "type": "concurrence", "author": "Judge JOHN" } ], "attorneys": [ "Blackwell, Luedeke, Hicks & Burns, P.A., by John V. Blackwell, Jr. and Kenneth D. Burns, for plaintiff-appellee.", "Harris, Mitchell & Hancox, by Ronnie M. Mitchell and G. Robert Hicks III, for defendant-appellant." ], "corrections": "", "head_matter": "SELINDA JUDKINS, Plaintiff-Appellee v. JAMES C. JUDKINS, JR., Defendant-Appellant\nNo. 9312DC302\n(Filed 1 March 1994)\n1. Appearance \u00a7 4 (NCI4th)\u2014 general appearance by defendant \u2014 personal jurisdiction in trial court\nThe trial court obtained personal jurisdiction over defendant where defendant made a general appearance by seeking affirmative relief in his answer without contesting personal jurisdiction. N.C.G.S. \u00a7 1-75.7.\nAm Jur 2d, Appearance \u00a7 6.\n2. Trial \u00a7 27 (NCI4th)\u2014 stay pursuant to Soldiers\u2019 and Sailors\u2019 Civil Relief Act \u2014denial proper\nThe trial court\u2019s findings of fact supported its denial of defendant\u2019s motion for a stay pursuant to the Soldiers\u2019 and Sailors\u2019 Civil Relief Act of 1940 since the only evidence of defendant\u2019s unavailability after the Persian . Gulf War was a letter from the Department of the Army stating that defendant was scheduled to depart for Southeast Asia on 30 August 1992 for approximately 46 days; the record failed to disclose whether defendant at any time requested leave to defend this action or whether leave was likely to be granted upon request; and defendant made no showing of the ways his defense would be prejudiced or his rights materially affected by his absence.\nAm Jur 2d, Military and Civil Defense \u00a7 308.\nSoldiers\u2019 and Sailors\u2019 Civil Relief Act of 1940, as amended, as affecting matrimonial actions. 54 ALR2d 390.\n3. Divorce and Separation \u00a7 161 (NCI4th)\u2014 equitable distribution \u2014 unequal distribution supported by findings of fact\nThe trial court\u2019s finding of fact that it had considered all the factors as set forth in N.C.G.S. \u00a7 50-20(c), including the earning ability of each party, the need of the custodial parent for the use and possession of the marital home and furniture therein, the value of defendant\u2019s separate property, and defendant\u2019s expectation of additional pension, was sufficient to support its unequal distribution of marital property.\nAm Jur 2d, Divorce and Separation \u00a7\u00a7 915 et seq.\nDivorce: equitable distribution doctrine. 41 ALR4th 481.\n4. Divorce and Separation \u00a7 129 (NCI4th)\u2014 equitable distribution \u2014 military pension\nThe trial court did not err by awarding plaintiff 50 percent of the marital portion of defendant\u2019s military pension where the court calculated the time defendant participated in the pension plan during his marriage to plaintiff and the total time defendant participated in the plan and determined that 88.66 percent of defendant\u2019s pension was marital property.\nAm Jur 2d, Divorce and Separation \u00a7 909.\nJudge JOHN concurring in the result.\nAppeal by defendant from orders and judgment signed 4 November 1992 in Cumberland County District Court by Judge A. Elizabeth Keever. Heard in the Court of Appeals 12 January 1994.\nPlaintiff and defendant were married on 19 July 1969 in Surry County, Virginia. Defendant is a lieutenant colonel in the United States Army and in 1983 was assigned to Fort Bragg in Fay-etteville, North Carolina. On 3 August 1988, plaintiff commenced this action seeking a divorce from bed and board, child custody, child support, alimony, and equitable distribution. The parties were divorced by judgment entered 26 September 1989 in Cumberland County District Court. On 4 November 1992, the trial court entered orders denying defendant\u2019s motion to dismiss for lack of subject matter jurisdiction and denying defendant\u2019s motion for a stay. On 4 November 1992, the trial court also entered an equitable distribution judgment. Defendant appeals from these orders and judgment.\nBlackwell, Luedeke, Hicks & Burns, P.A., by John V. Blackwell, Jr. and Kenneth D. Burns, for plaintiff-appellee.\nHarris, Mitchell & Hancox, by Ronnie M. Mitchell and G. Robert Hicks III, for defendant-appellant." }, "file_name": "0734-01", "first_page_order": 764, "last_page_order": 773 }