{ "id": 11919371, "name": "BETTINA COLEY LOVING v. LARRY DALE LOVING", "name_abbreviation": "Loving v. Loving", "decision_date": "1995-04-18", "docket_number": "No. COA94-731", "first_page": "501", "last_page": "508", "citations": [ { "type": "official", "cite": "118 N.C. App. 501" } ], "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": "333 S.E.2d 488", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "314 N.C. 331", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4686660, 4695653, 4695471, 4689718, 4689592 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/314/0331-03", "/nc/314/0331-01", "/nc/314/0331-05", "/nc/314/0331-02", "/nc/314/0331-04" ] }, { "cite": "327 S.E.2d 910", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "919" } ], "opinion_index": 0 }, { "cite": "74 N.C. App. 144", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523505 ], "year": 1985, "pin_cites": [ { "page": "157" } ], "opinion_index": 0, "case_paths": [ "/nc-app/74/0144-01" ] }, { "cite": "363 S.E.2d 95", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "98-99" } ], "opinion_index": 0 }, { "cite": "88 N.C. App. 285", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358145 ], "year": 1987, "pin_cites": [ { "page": "290" } ], "opinion_index": 0, "case_paths": [ "/nc-app/88/0285-01" ] }, { "cite": "374 S.E.2d 376", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1988, "pin_cites": [ { "page": "383" } ], "opinion_index": 0 }, { "cite": "323 N.C. 543", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2563389 ], "year": 1988, "pin_cites": [ { "page": "555" } ], "opinion_index": 0, "case_paths": [ "/nc/323/0543-01" ] }, { "cite": "341 S.E.2d 116", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "118" } ], "opinion_index": 0 }, { "cite": "80 N.C. App. 110", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522067 ], "year": 1986, "pin_cites": [ { "page": "112-13" } ], "opinion_index": 0, "case_paths": [ "/nc-app/80/0110-01" ] }, { "cite": "401 S.E.2d 784", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "102 N.C. App. 199", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522997 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc-app/102/0199-01" ] }, { "cite": "429 S.E.2d 382", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "388", "parenthetical": "citing N.C.G.S. \u00a7 50-20(b)(l), (2) and Atkins v. Atkins, 102 N.C. App. 199, 401 S.E.2d 784 (1991)" } ], "opinion_index": 0 }, { "cite": "110 N.C. App. 99", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524995 ], "year": 1993, "pin_cites": [ { "page": "108", "parenthetical": "citing N.C.G.S. \u00a7 50-20(b)(l), (2) and Atkins v. Atkins, 102 N.C. App. 199, 401 S.E.2d 784 (1991)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/110/0099-01" ] }, { "cite": "425 S.E.2d 696", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "333 N.C. 342", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2548512 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc/333/0342-01" ] }, { "cite": "415 S.E.2d 565", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "568" } ], "opinion_index": 0 }, { "cite": "106 N.C. App. 91", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 5313691 ], "year": 1992, "pin_cites": [ { "page": "96" } ], "opinion_index": 0, "case_paths": [ "/nc-app/106/0091-01" ] }, { "cite": "447 S.E.2d 392", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "336 N.C. 605", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2536777, 2538986, 2536623, 2536600, 2536444 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/nc/336/0605-01", "/nc/336/0605-02", "/nc/336/0605-03", "/nc/336/0605-04", "/nc/336/0605-05" ] }, { "cite": "439 S.E.2d 208", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "210" } ], "opinion_index": 0 }, { "cite": "113 N.C. App. 533", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523419 ], "pin_cites": [ { "page": "536" } ], "opinion_index": 0, "case_paths": [ "/nc-app/113/0533-01" ] }, { "cite": "334 S.E.2d 256", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "261-62", "parenthetical": "savings account must be valued as of the date of separation without regard to amount in account at time of the trial" } ], "opinion_index": 0 }, { "cite": "76 N.C. App. 545", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527658 ], "year": 1985, "pin_cites": [ { "page": "553", "parenthetical": "savings account must be valued as of the date of separation without regard to amount in account at time of the trial" } ], "opinion_index": 0, "case_paths": [ "/nc-app/76/0545-01" ] }, { "cite": "444 S.E.2d 420", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "336 N.C. 575", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2536486 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/nc/336/0575-01" ] }, { "cite": "433 S.E.2d 196", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1993, "pin_cites": [ { "page": "226", "parenthetical": "marital debt must be valued and distributed" }, { "page": "226" }, { "page": "227", "parenthetical": "spouse's post-separation discharge of a second mortgage increased value of home and must be considered as a distributional factor" } ], "opinion_index": 0 }, { "cite": "111 N.C. App. 460", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522769 ], "weight": 3, "year": 1993, "pin_cites": [ { "page": "509-10", "parenthetical": "marital debt must be valued and distributed" }, { "page": "510" }, { "page": "511-12" } ], "opinion_index": 0, "case_paths": [ "/nc-app/111/0460-01" ] }, { "cite": "358 S.E.2d 102", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1987, "pin_cites": [ { "page": "106" }, { "page": "106" } ], "opinion_index": 0 }, { "cite": "86 N.C. App. 418", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12132703 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "423" }, { "page": "424" } ], "opinion_index": 0, "case_paths": [ "/nc-app/86/0418-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 50-20", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "pin_cites": [ { "page": "(c)" }, { "page": "(b)(l)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 656, "char_count": 15913, "ocr_confidence": 0.741, "pagerank": { "raw": 1.0818232293664424e-07, "percentile": 0.5626916858859339 }, "sha256": "d807930275dabae4f97b7ff1763a3ad78745fc1588de737b957a52f3357b5535", "simhash": "1:4938d478365b2716", "word_count": 2698 }, "last_updated": "2023-07-14T20:04:31.897721+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges LEWIS and MARTIN, MARK D., concur." ], "parties": [ "BETTINA COLEY LOVING v. LARRY DALE LOVING" ], "opinions": [ { "text": "GREENE, Judge.\nLarry Dale Loving (defendant) appeals from a judgment of equitable distribution entered in Cabarrus County District Court on 10 January 1994.\nDefendant and Bettina Coley Loving (plaintiff) were married 9 December 1966, separated on 23 June 1989, and divorced on 4 September 1990. On 30 June 1989, plaintiff filed an action against defendant for equitable distribution of marital property in Cabarrus County District Court. An equitable distribution trial was held on 10 October 1993 and 11 November 1993.\nThe parties stipulated to the classification, valuation and distribution of much of the property. There did exist disagreement with regard to a tract of land known as the Alleghany property and a tract of land containing the marital residence known as the Midland property. With regard to the Alleghany property, the parties stipulated that it was marital property.\nThe evidence is that the Alleghany property had a value as of the date of separation of $28,250 and that there existed, on the date of separation, a debt on the property of $9,000. There is no dispute among the parties that that debt is a marital debt and was fully paid by the defendant after the date of separation and before the trial.\nThe Midland property was acquired by the parties as tenants by the entireties, during the marriage, by deed from the defendant\u2019s parents. There is no dispute as to the value of the Midland property, as the disagreement relates to whether the property is marital or separate.\nDefendant testified that his parents transferred title to the Midland property to plaintiff and defendant by deed dated 6 May 1968. The parties paid $40,000 for the property with no money down and financed by a deed of trust signed by both plaintiff and defendant back to defendant\u2019s parents. Defendant testified that he \u201cwas to pay [his] parents $150 a month interest free until the forty thousand was paid off.\u201d The parties paid the full $40,000 out of their incomes over a twenty-two year period.\nDefendant testified to the following concerning the Midland property:\nMy parents told me they would like for me to have the [Midland property]. This is probably prior to the marriage that we discussed it and I said, \u201cI don\u2019t \u2014 I don\u2019t have a family. . . . But then after I got married and had a child... I started looking for a place to live. And daddy said, \u201cI want you to have the [Midland property].\u201d ... \u201cI want to give you the house and forty acres.\u201d And I said, \u201cNo.\u201d I said, \u201cI don\u2019t want to do that.\u201d And he said, \u201cWell, I\u2019ll give it all to you, then.\u201d And I said ... \u201cI want to pay you something so you can retire and enjoy the rest of your life.\u201d So then we talked about, you know, this, that and the other and I said, \u201c$40,000.\u201d And he said \u2014 well, I don\u2019t remember what else he said, but then he did check with my brothers and sister because it was to be part of my inheritance.\nDefendant also testified his mother told him the Midland property was part of his inheritance and he did not remember any discussions about his parents making a gift of any of the Midland property to plaintiff. He stated that the plaintiff\u2019s name is on the deed because \u201cI was a trusting husband and I thought it would be best if her name would be put on there too.\u201d During his testimony, defendant identified a letter written in his mother\u2019s handwriting and signed by her on 9 September 1989 to William Rogers, the lawyer who then represented defendant. In the letter, defendant\u2019s mother wrote that her husband \u201cwanted [defendant] to have a house so we agreed to let him have not only the house and two acres, but all of it for $40,000. This was agreed interest free for his inheritance. He and [plaintiff] paid $150.00 per mo. then $200.00 per month until paid in full.\u201d\nLucy Jarvis, defendant\u2019s sister, testified that \u201cDaddy wanted to give [the Midland property] to [defendant]. Mother said that it wouldn\u2019t be quite right just to give it to him.\u201d Paul Finnen, a residential real estate appraisal expert, testified that the present value in 1968 of a $40,000 interest-free loan payable over twenty-two years was $21,000, and this price was $45,000 less than the actual worth of the Midland property.\nThe trial court determined that both the Alleghany and Midland properties were marital. As to the Midland property, the court found as a fact that \u201c[i]f any portion of this transaction be held to be a gift only to the defendant, he clearly intended to share that gift with his wife, the plaintiff. The defendant has failed to rebut the presumption, by clear and convincing evidence . . . that the conveyance . . . constituted a gift of the property to the marital estate.\u201d The trial court valued the Alleghany property at $19,250 and the Midland property at $238,021. The trial court distributed the marital properties, with the Alleghany property going to the plaintiff and the Midland property going to the defendant. The court finally determined, after making extensive findings on evidence offered with regard to the distributional factors set out in N.C. Gen. Stat. \u00a7 50-20(c), that \u201can unequal division of the marital assets in favor of the defendant would be equitable,\u201d with the \u201cplaintiff receiving 43% of the marital property and the defendant receiving 57% of the marital property.\u201d One of the distributional fhctor findings was that the defendant had paid, after the date of separation, the $9,000 debt secured by the Alleghany property.\nThe issues presented are whether the trial court erred in (I)(A) failing to distribute the $9,000 marital debt, (B) treating the defendant\u2019s post-separation payment of the $9,000 debt as a distributional factor, and (C) failing to treat the post-separation decrease in value of the $9,000 debt as a distributional factor; and (II) determining that the Midland property constituted marital property.\nI\nThis Court has consistently held that there can be \u201cno complete and equitable distribution . . . without also . . . distributing [the marital] debt.\u201d Byrd v. Owens, 86 N.C. App. 418, 423, 358 S.E.2d 102, 106 (1987); Smith v. Smith, 111 N.C. App. 460, 509-10, 433 S.E.2d 196, 226 (1993) (marital debt must be valued and distributed), rev\u2019d in part, 336 N.C. 575, 444 S.E.2d 420 (1994). \u201cDebt, as well as assets, must be classified as marital or separate property . . . [and if marital], the court must value the debt and distribute it.\u201d Byrd, 86 N.C. App. at 424, 358 S.E.2d at 106. The valuation must occur \u201cas of the date of the separation of the parties.\u201d N.C.G.S. \u00a7 50-21(b) (1994). The classification, valuation and distribution of the marital debt is required without regard to whether the debt may be liquidated after the date of separation and before the trial. Just as with assets, the question is whether the debt was acquired during the marriage and before the date of separation and in existence on the date of the separation. See Talent v. Talent, 76 N.C. App. 545, 553, 334 S.E.2d 256, 261-62 (1985) (savings account must be valued as of the date of separation without regard to amount in account at time of the trial); Huguelet v. Huguelet, 113 N.C. App. 533, 536, 439 S.E.2d 208, 210 (debt is marital if \u201cincurred during the marriage and before the date of separation by either spouse or both spouses for the joint benefit of the parties\u201d), disc. rev. denied, 336 N.C. 605, 447 S.E.2d 392 (1994). The spouse not receiving the distribution of the marital debt who makes some payment on the marital debt after the date of separation and before the equitable distribution trial is entitled to either (1) a reimbursement from the other spouse for the amount of the payment, (2) a credit to his share of the equitable distribution award in an amount equal to the payment, or (3) an upward adjustment in his percentage of the distribution of the marital properties. Smith, 111 N.C. App. at 510, 433 S.E.2d at 226. The trial court retains the discretion to choose the appropriate method of compensating the spouse for his post-separation payment of marital debt. Id.\nA\nIn this case, the defendant argues that the trial court \u201cdid not distribute the [$9,000] marital debt to anyone.\u201d It is true that the judgment does not specifically indicate that the trial court distributed the $9,000 debt to anyone. It can be implied, however, that in placing a value on the Alleghany property of $19,250, when it in fact had avalu\u00e9 of $28,250, and distributing that property to the plaintiff, the trial court also distributed the $9,000 debt to her.\nB\nThe defendant further argues that the trial court erred in treating the defendant\u2019s post-separation payment of the $9,000 as a distributional factor. We disagree. As we have stated, the trial court is given the discretion to treat the post-separation payment of a martial debt, by a spouse not receiving distribution of the debt, as a distributional factor. In so doing, the trial court did not abuse its discretion.\nC\nThe defendant finally argues on this issue that because the debt was paid in full after the date of separation and before the date of the trial, the debt distributed to the plaintiff decreased in value and that decrease must be considered by the trial court as a distributional factor. We agree. It is fundamental that the trial court must consider the \u201cvalue of the marital property [and debts] at the date of distribution because the post-separation appreciation [and depreciation] ... is a distributional factor.\u201d Haywood v. Haywood, 106 N.C. App. 91, 96, 415 S.E.2d 565, 568 (1992), rev\u2019d in part, 333 N.C. 342, 425 S.E.2d 696 (1993); Smith, 111 N.C. App. at 511-12, 433 S.E.2d at 227 (spouse\u2019s post-separation discharge of a second mortgage increased value of home and must be considered as a distributional factor). In this case, the marital debt which was distributed to plaintiff and valued at $9,000 on the date of separation had a value of zero on the date of distribution. The trial court was required to consider this fact as a distributional factor in making its distribution, and there are no findings suggesting that it did. This error requires that the award be reversed and remanded for entry of a new judgment giving proper consideration to this evidence.\nII\nDefendant also contends that the Midland property is, at least in part, defendant\u2019s own separate property. We disagree.\nUnder N.C. Gen. Stat. \u00a7 50-20(b)(l), (2),\n[T]he party claiming the property to be marital must meet the burden of showing by a preponderance of the evidence that the property was acquired by either spouse or both spouses during the marriage, before the date of separation, and is presently owned.... Once that burden is met, the burden shifts to the party claiming the property to be separate property. The party must prove by a preponderance of the evidence that the property was acquired by bequest, descent or gift during the course of the marriage.\nGodley v. Godley, 110 N.C. App. 99, 108, 429 S.E.2d 382, 388 (1993) (citing N.C.G.S. \u00a7 50-20(b)(l), (2) and Atkins v. Atkins, 102 N.C. App. 199, 401 S.E.2d 784 (1991)). As to whether property is marital or separate, the findings of the trial court will not be disturbed on appeal if there is competent evidence to support the findings. Nix v. Nix, 80 N.C. App. 110, 112-13, 341 S.E.2d 116, 118 (1986).\nWhile conceding that plaintiff met her burden of showing the Midland property is marital property pursuant to Section 50-20(b)(l), defendant argues that at a minimum, the Midland property \u201cwas Defendant\u2019s separate property to the extent of the difference between the value of the property ($65,000) at the time of the gift and the value of the interest free loan ($21,000) or a $44,000 separate component in this land.\u201d Even assuming that any or all of the Midland property was acquired as a gift only to defendant from his parents and was therefore defendant\u2019s separate property, when the defendant directed that the title be placed in the entireties, a gift by the defendant to the marital estate is presumed. McLean v. McLean, 323 N.C. 543, 555, 374 S.E.2d 376, 383 (1988). \u201cThis presumption is rebuttable only by clear, cogent and convincing evidence that a gift was not intended.\u201d Id. \u201c \u2018[W]hether defendant succeeded in rebutting the presumption of gift to the marital estate by clear, cogent, and convincing evidence is a matter left to the trial court\u2019s discretion.\u2019 \u201d Id. (quoting McLean v. McLean, 88 N.C. App. 285, 290, 363 S.E.2d 95, 98-99 (1987)). In so holding, we reject the defendant\u2019s argument that the McLean presumption applies only when a spouse uses separate property to acquire other property which is titled in the entireties. The McLean presumption also applies when a spouse directs that title of his separate property be placed in the entireties, as was done in this case. As this Court has stated, \u201c[w]hen one party titles property jointly it is reasonable that the other party expects it to be an addition to marital property.\u201d McLeod v. McLeod, 74 N.C. App. 144, 157, 327 S.E.2d 910, 919, cert. denied, 314 N.C. 331, 333 S.E.2d 488 (1985).\nIn this case, the defendant did not produce any evidence to rebut the presumption of a gift to the marital estate. Thus, the trial court did not err in finding defendant made a gift of his separate Midland property to the marital estate and in concluding the entire Midland property is marital property. For these reasons, the decision of the trial court is\nAffirmed in part, reversed in part and remanded.\nJudges LEWIS and MARTIN, MARK D., concur.", "type": "majority", "author": "GREENE, Judge." } ], "attorneys": [ "Johnson, Roberts & Hastings, by Randell F. Hastings, for plaintiff-appellee.", "James, McElroy & Diehl, P.A., by William K. Diehl, Jr. and Kath\u00e9rine Line Thompson Kelly, for defendant-appellant." ], "corrections": "", "head_matter": "BETTINA COLEY LOVING v. LARRY DALE LOVING\nNo. COA94-731\n(Filed 18 April 1995)\n1. Divorce and Separation \u00a7 147 (NCI4th)\u2014 distribution of marital debt\nThe trial court distributed a $9,000 marital debt (an amount owed on marital property) to plaintiff wife where the property had a value of $28,250 but the court placed a value of only $19,250 on the property, and this property was distributed to plaintiff.\nAm Jur 2d, Divorce and Separation \u00a7\u00a7 915 et seq.\n2. Divorce and Separation \u00a7 148 (NCI4th)\u2014 equitable distribution \u2014 payment of marital debt \u2014 distributional factor\nThe trial court had the discretion to treat the post-separation payment of a marital debt by the spouse not receiving distribution of the debt as a distributional factor.\nAm Jur 2d, Divorce and Separation \u00a7\u00a7 915 et seq.\n3. Divorce and Separation \u00a7 148 (NCI4th)\u2014 equitable distribution \u2014 payment of marital debt \u2014 decrease in debt value\u2014 distributional factor\nWhere a marital debt distributed to plaintiff wife was valued at $9,000 on the date of separation but was paid in full by defendant husband after the date of separation and thus had a value of zero on the date of distribution, the trial court was required to consider this decrease in value as a distributional factor in making its distribution of marital property.\nAm Jur 2d, Divorce and Separation \u00a7\u00a7 915 et seq.\n4. Divorce and Separation \u00a7 122 (NCI4th)\u2014 conveyance from husband\u2019s parents \u2014 tenancy by entirety \u2014 presumption of gift to marital estate\nAssuming that any or all of the property acquired by deed from defendant husband\u2019s parents was a gift only to defendant from his parents and was therefore defendant\u2019s separate property, a gift by defendant to the marital estate is presumed from defendant\u2019s direction that the title be placed in the names of both parties as tenants by the entirety, and where defendant did not produce any evidence to rebut the presumption of a gift to the marital estate, the trial court did not err in concluding that the entire property is marital property.\nAm Jur 2d, Divorce and Separation \u00a7\u00a7 884-886.\nAppeal by defendant from order entered 10 January 1994 in Cabarrus County District Court by Judge Clarence E. Horton, Jr. Heard in the Court of Appeals 23 March 1995.\nJohnson, Roberts & Hastings, by Randell F. Hastings, for plaintiff-appellee.\nJames, McElroy & Diehl, P.A., by William K. Diehl, Jr. and Kath\u00e9rine Line Thompson Kelly, for defendant-appellant." }, "file_name": "0501-01", "first_page_order": 533, "last_page_order": 540 }