{ "id": 11648184, "name": "MICHELE N. MROZEK (GARDNER), Plaintiff v. EDWARD MROZEK, JR., Defendant", "name_abbreviation": "Mrozek v. Mrozek", "decision_date": "1998-03-17", "docket_number": "No. COA97-315", "first_page": "43", "last_page": "52", "citations": [ { "type": "official", "cite": "129 N.C. App. 43" } ], "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": "324 S.E.2d 829", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "833" } ], "opinion_index": 0 }, { "cite": "312 N.C. 770", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4755941 ], "year": 1985, "pin_cites": [ { "page": "777" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0770-01" ] }, { "cite": "363 S.E.2d 189", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "197", "parenthetical": "citing White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985)" } ], "opinion_index": 0 }, { "cite": "88 N.C. App. 297", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358162 ], "year": 1987, "pin_cites": [ { "page": "309", "parenthetical": "citing White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/88/0297-01" ] }, { "cite": "345 S.E.2d 385", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "316 N.C. 730", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4695168, 4704837, 4701513, 4704337, 4704895 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/316/0730-05", "/nc/316/0730-02", "/nc/316/0730-03", "/nc/316/0730-01", "/nc/316/0730-04" ] }, { "cite": "338 S.E.2d 809", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "79 N.C. App. 228", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520081 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc-app/79/0228-01" ] }, { "cite": "420 S.E.2d 212", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "215", "parenthetical": "citing Andrews v. Andrews, 79 N.C. App. 228, 338 S.E.2d 809, disc. review denied, 316 N.C. 730, 345 S.E.2d 385 (1986)" } ], "opinion_index": 0 }, { "cite": "107 N.C. App. 382", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527619 ], "year": 1992, "pin_cites": [ { "page": "387", "parenthetical": "citing Andrews v. Andrews, 79 N.C. App. 228, 338 S.E.2d 809, disc. review denied, 316 N.C. 730, 345 S.E.2d 385 (1986)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/107/0382-01" ] }, { "cite": "422 S.E.2d 587", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "591", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "108 N.C. App. 66", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522502 ], "year": 1992, "pin_cites": [ { "page": "71-72", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/108/0066-01" ] }, { "cite": "N.C. Gen. Stat. \u00a750-20", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "pin_cites": [ { "page": "(c)" }, { "page": "(c)" }, { "page": "(c)(l)" } ], "opinion_index": 0 }, { "cite": "366 S.E.2d 512", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "514" } ], "opinion_index": 0 }, { "cite": "89 N.C. App. 445", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522677 ], "year": 1988, "pin_cites": [ { "page": "448" } ], "opinion_index": 0, "case_paths": [ "/nc-app/89/0445-01" ] }, { "cite": "344 S.E.2d 100", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1986, "pin_cites": [ { "page": "162" }, { "page": "104", "parenthetical": "citations omitted" }, { "page": "113" } ], "opinion_index": 0 }, { "cite": "81 N.C. App. 159", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522057 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "179" } ], "opinion_index": 0, "case_paths": [ "/nc-app/81/0159-01" ] }, { "cite": "339 S.E.2d 872", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 2167922 ], "year": 1986, "pin_cites": [ { "page": "876" } ], "opinion_index": 0, "case_paths": [ "/sc/287/0501-01" ] }, { "cite": "287 N.C. 501", "category": "reporters:state", "reporter": "N.C.", "year": 1986, "pin_cites": [ { "page": "507" } ], "opinion_index": 0 }, { "cite": "353 S.E.2d 427", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "430", "parenthetical": "quoting Allen v. Allen, 287 N.C. 501, 507, 339 S.E.2d 872, 876 (1986" } ], "opinion_index": 0 }, { "cite": "84 N.C. App. 471", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12168734 ], "year": 1987, "pin_cites": [ { "page": "475", "parenthetical": "quoting Allen v. Allen, 287 N.C. 501, 507, 339 S.E.2d 872, 876 (1986" } ], "opinion_index": 0, "case_paths": [ "/nc-app/84/0471-01" ] }, { "cite": "435 S.E.2d 793", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "796" } ], "opinion_index": 0 }, { "cite": "112 N.C. App. 484", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522178 ], "year": 1993, "pin_cites": [ { "page": "487" } ], "opinion_index": 0, "case_paths": [ "/nc-app/112/0484-01" ] }, { "cite": "269 S.E.2d 622", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "300 N.C. 195", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560193, 8560231, 8560172, 8560211, 8560154 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/300/0195-03", "/nc/300/0195-05", "/nc/300/0195-02", "/nc/300/0195-04", "/nc/300/0195-01" ] }, { "cite": "262 S.E.2d 343", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "346" } ], "opinion_index": 0 }, { "cite": "45 N.C. App. 7", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8547077 ], "year": 1980, "pin_cites": [ { "page": "12" } ], "opinion_index": 0, "case_paths": [ "/nc-app/45/0007-01" ] }, { "cite": "286 S.E.2d 625", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "627", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "55 N.C. App. 562", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527652 ], "year": 1982, "pin_cites": [ { "page": "566", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/55/0562-01" ] }, { "cite": "358 S.E.2d 102", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "106" } ], "opinion_index": 0 }, { "cite": "86 N.C. App. 418", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12132703 ], "year": 1987, "pin_cites": [ { "page": "424" } ], "opinion_index": 0, "case_paths": [ "/nc-app/86/0418-01" ] }, { "cite": "387 S.E.2d 181", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "183", "parenthetical": "citing Byrd v. Owens, 86 N.C. App. 418, 424, 358 S.E.2d 102, 106 (1987)" } ], "opinion_index": 0 }, { "cite": "97 N.C. App. 77", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8519562 ], "year": 1990, "pin_cites": [ { "page": "79", "parenthetical": "citing Byrd v. Owens, 86 N.C. App. 418, 424, 358 S.E.2d 102, 106 (1987)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/97/0077-01" ] } ], "analysis": { "cardinality": 772, "char_count": 22574, "ocr_confidence": 0.748, "pagerank": { "raw": 1.3647314699520977e-07, "percentile": 0.6370118489533559 }, "sha256": "56d3184d65f50545d32c7b285abeca11e6a07e496a62a19fd9f144819d5e8c6a", "simhash": "1:a7eac32b370d9d74", "word_count": 3693 }, "last_updated": "2023-07-14T18:14:06.814789+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge SMITH concurs.", "Judge GREENE concurs with separate opinion." ], "parties": [ "MICHELE N. MROZEK (GARDNER), Plaintiff v. EDWARD MROZEK, JR., Defendant" ], "opinions": [ { "text": "EAGLES, Judge.\nWe first consider whether the trial court erred in finding that the marital debt owed to defendant\u2019s parents had no value as of the date of separation because it was not legally enforceable because of the running of the statute of limitations period with no payments and no acknowledgment of the debt. In an equitable distribution action \u201cthe trial court is required to classify, value and distribute, if marital, the debts of the parties to the marriage.\u201d Miller v. Miller, 97 N.C. App. 77, 79, 387 S.E.2d 181, 183 (1990) (citing Byrd v. Owens, 86 N.C. App. 418, 424, 358 S.E.2d 102, 106 (1987)). Plaintiff argues that in determining the value of a marital debt, consideration of its legal enforceability is essential. Defendant contends that the court was without jurisdiction to make a determination as to the enforceability of the promissory note. Defendant argues that the defense of statute of limitations is an affirmative defense available only by answer and can only be raised against the holder of the promissory note and could not be pled against the defendant. Accordingly, defendant contends that once the debt was found by the trial court to be a marital debt it should have been distributed in the judgment. After careful consideration of the record, briefs and contentions of both parties, we reverse.\nThe promissory note at issue here was not under seal and was subject to a three year statute of limitations. G.S. 1-52(1). The note does not state a fixed date or definite time of payment and is therefore payable on demand. G.S. 25-3-108. \u201cThe statute of limitations on an action on a promissory note payable on demand begins to run from the date of the execution of the note.\u201d Wells v. Barefoot, 55 N.C. App. 562, 566, 286 S.E.2d 625, 627 (1982) (citations omitted). No payment had been made on the note. Accordingly, the statute of limitations began to run when the note was executed on 28 October 1986.\nThe running of the statute of limitations, however, does not extinguish a debt, but instead provides a defense to its collection. See Citizens Ass\u2019n for Reasonable Growth of Washington, N. C. v. City of Washington, 45 N.C. App. 7, 12, 262 S.E.2d 343, 346, cert. denied, 300 N.C. 195, 269 S.E.2d 622 (1980). Indeed, a debtor\u2019s failure to assert the statute of limitations constitutes a waiver of that defense. Miller v. Talton, 112 N.C. App. 484, 487, 435 S.E.2d 793, 796 (1993).\nIn this case, the trial court found the note representing a loan from defendant\u2019s parents to be a marital debt. The trial court further found as fact that defendant \u201cacknowledged that he owed the money due under the terms of the promissory note and he was obligated to pay his mother under the terms of the promissory note,\u201d and defendant\u2019s mother \u201cexpected repayment.\u201d On this record, therefore, there is no evidence that defendant intends to assert a statute of limitations defense to the collection of the debt; the unequivocal inference is that he would not do so. Accordingly, the debt was enforceable and the trial court erred in ruling otherwise. Because there is no dispute as to the amount due on the debt at the time of separation, $45,961.48, on remand the debt must again be similarly valued.\nPlaintiff additionally argues that \u201c \u2018loans from close family members must be closely scrutinized for legitimacy.\u2019 \u201d Geer v. Geer, 84 N.C. App. 471, 475, 353 S.E.2d 427, 430 (1987) (quoting Allen v. Allen, 287 N.C. 501, 507, 339 S.E.2d 872, 876 (1986). However, any concerns the trial court may have with respect to the fact that this marital debt is owed to defendant\u2019s parents or that defendant is the sole signatory and may have an affirmative defense to repayment are more properly treated as distributional factors. See G.S. 50-20(c)(12) (requiring the trial court to consider \u201c[a]ny other factor which the court finds to be just and pfoper\u201d in making an equitable distribution). Accordingly, the order of the trial court is reversed and remanded for the valuing of this debt and the entry of a new distributional order.\nWe next consider whether the trial court erred in its finding concerning the fair market value of the marital residence. Defendant claims that the trial court abused its discretion in valuing the marital home as of the date of separation, 31 May 1994, at $199,700.00 because there was evidence that the value of the marital home at separation was $245,000.00 and $250,000.00 at the time of trial. Defendant argues that plaintiff secured a loan in May 1996 based on an appraisal value of $250,000.00, and that plaintiff would not have made application for a loan of $225,000.00 on 19 April 1996 unless plaintiff believed that the property had a value of $250,000.00. Defendant also argues that insurance coverage on the house was and had been $248,000.00 and that this coverage had been specified by the insurance company, not by the parties. Accordingly, defendant contends that with this evidence before the court it was an abuse of discretion for the trial court to find that the value of the residence at separation was $199,700.00. We note that the loan was obtained two years after separation, five months after the hearing and the month before judgment was signed. We also note that plaintiffs lender chose the appraiser and that defendant\u2019s witness at the hearing was the lender\u2019s choice. We are not persuaded that the trial court abused its discretion in valuing the marital residence as of the date of separation, two years earlier.\nIn Lawing v. Lawing, 81 N.C. App. 159, 344 S.E.2d 100 (1986) we stated that:\nThe General Assembly has committed the distribution of marital property to the discretion of the trial courts, and the exercise of that discretion will not be disturbed in the absence of clear abuse. Accordingly, the trial court\u2019s rulings in equitable distribution cases receive great deference and may be upset only if they are so arbitrary that they could not have been the result of a reasoned decision. The trial court\u2019s findings of fact, on which its exercise of discretion rests, are conclusive if supported by any competent evidence. The mere existence of conflicting evidence or discrepancies in evidence will not justify reversal.\nId. at 162, 344 S.E.2d at 104 (citations omitted). The trial court found that the plaintiff\u2019s witness, Jack Coleman, had \u201cextensive experience in real estate appraisals, including, but not limited to teaching ... and that he qualifies as a good expert with regard to the valuation of the real property and his testimony was helpful ... on the issue of the value of the subject real property.\u201d The court acted well within its discretion in choosing Mr. Coleman\u2019s separation date appraisal figure of $199,700.00. Accordingly, this assignment of error is overruled.\nWe next consider whether the trial court erred in failing to award interest on the distributive award. Defendant claims that the court committed error in failing to provide for interest on the distributive award. Plaintiff argues that an interest award is not required by statute and that the decision rests within the sound discretion of the trial court. Plaintiff further argues that considering the short duration before payment was due (within 90 days of the date of entry of the judgment) and that the defendant was not required to deliver an executed deed releasing his rights in the marital residence until he received payment, the trial court did not commit reversible error by failing to award interest on the distributive award.\nG.S. 50-20(e) provides that \u201c[t]he court may provide for a distributive award to facilitate, effectuate or supplement a distribution of marital property.\u201d The General Statutes do not explicitly mention interest on distributive awards. This Court has recognized that \u201cthe structure and timing\u201d of distributive awards lies \u201cwithin the discretion of the trial judge.\u201d Lawing, 81 N.C. App. at 179, 344 S.E.2d at 113. Similarly, we hold that the decision of whether to order the payment of interest on a distributive award is one that lies within the discretion of the trial judge. Accordingly, we hold that the trial court did not err and abuse its discretion by failing to award interest.\nWe next consider whether the trial court failed to consider post-separation appreciation in the value of the marital residence as a distributional factor. Defendant argues that although the judgment set out that the fair market value of the home on the date of judgment was $210,000.00, the judgment makes no reference that the court considered post-separation appreciation of the marital home as a distributional factor. Defendant points out that he presented evidence that the residence\u2019s value at the date of distribution was $250,000.00 and argues that it should have been used to determine the value of the residence at the date of distribution.\nPlaintiff argues that the trial court did consider post-separation appreciation in the marital residence. Plaintiff points out that the trial court made specific findings both as to the value on the date of separation and the value on the date of trial. In its findings the court stated that it had considered and weighed all of the evidence presented as it related to the factors set out in G.S. 50-20(c).\nThe post-separation appreciation of marital property must be treated as a distributional factor under G.S. 50-20(c)(11a) or (12). Truesdale v. Truesdale, 89 N.C. App. 445, 448, 366 S.E.2d 512, 514 (1988). The trial court stated in its findings of fact that it had\nconsidered and weighed all of the evidence presented by the Plaintiff with respect to her request for unequal distribution as that evidence relates to the [distributional] factors in N.C. Gen. Stat. \u00a750-20(c). The Court has also carefully considered and weighed all of the Defendant\u2019s evidence and his contentions in opposition to an unequal distribution and in favor of an equal distribution of the marital property.\n\u201c \u2018The purpose for the requirement of specific findings of fact that support the court\u2019s conclusions of law is to permit the appellate court on review \u2018to determine from the record whether the judgment \u2014 and the legal conclusions that underlie it \u2014 represent a correct application of the law.\u201d This only requires that the court make findings as to ultimate rather than evidentiary facts. The trial court is not required to recite in detail the evidence it considered in determining what division is equitable.\u201d Chandler v. Chandler, 108 N.C. App. 66, 71-72, 422 S.E.2d 587, 591 (1992) (citations omitted). While the trial court may have considered post-separation appreciation, its finding of fact that it had \u201cconsidered and weighed all of the evidence ... as that evidence relates to the [distributional] factors in N.C. Gen. Stat. \u00a750-20(c)\u201d is too general for effective appellate review. Accordingly, the order of the trial court is reversed and remanded for new findings of fact and entry of a new distributional order.\nWe next consider whether the trial court erred in denying defendant\u2019s motions for new trial and to amend the judgment. Defendant claims that the court committed reversible error in denying their motions for new trial and to amend the judgment because there was new evidence, the plaintiff had made material misrepresentations, and there was significant appreciation in the value of the marital home from the date of trial and the date of the entry of the judgment. Among the misrepresentations defendant contends plaintiff made was the cost of road maintenance and the value of the marital home. Defendant also claims that there was new evidence as an appraisal done after trial but before the entry of judgment showed the marital residence was worth $250,000.00. We are not persuaded.\nThe trial court did not abuse its discretion in denying defendant\u2019s motions for a new trial or to amend the judgment. The plaintiff withheld no evidence. The misrepresentation alleged by defendant was a loan application for $225,000.00 made by plaintiff to refinance the mortgage on the marital residence. The property was subsequently appraised in conjunction with the application at a value of $250,000.00. The application and subsequent appraisal were made five months after trial and were irrelevant to the court\u2019s determination. The appraiser was selected by the credit union processing the loan application, not plaintiff, and plaintiff did not know at trial that the appraiser would be appraising the property in the future. Furthermore, the evidence was not new as the loan appraiser testified as an expert witness for the defendant at trial. The assignment of error is overruled.\nWe consider last defendant\u2019s contention that the trial court erred in making an unequal distribution of the marital property. Defendant first argues that the trial court failed to take into consideration the efforts of defendant in the construction of the house. Second, defendant claims that the plaintiff is fully capable of full time employment and the court\u2019s finding otherwise is erroneous. Third, defendant argues that the court inappropriately considered custody of the minor children as a distributional factor. Finally, defendant argues that the trial court failed to consider as distributional factors changes that occurred after trial and prior to distribution.\nPlaintiff argues that the trial court\u2019s findings were each supported by competent evidence and any one of the factors found by the trial court was sufficient to support its ruling that an unequal distribution in plaintiff\u2019s favor is an equitable distribution. Therefore, plaintiff maintains that there was no abuse of discretion.\n\u201c[T]he finding of a single distributional factor by the trial court under N.C. Gen. Stat. \u00a7 50-20(c)(l) to (12) may support an unequal division.\u201d Cobb v. Cobb, 107 N.C. App. 382, 387, 420 S.E.2d 212, 215 (1992) (citing Andrews v. Andrews, 79 N.C. App. 228, 338 S.E.2d 809, disc. review denied, 316 N.C. 730, 345 S.E.2d 385 (1986)). \u201cThe trial court\u2019s ruling may be overturned by the appellate court only if there is a clear abuse of discretion indicating the ruling \u2018was so arbitrary that it could not have been the result of a reasoned decision.\u2019 \u201d Hall v. Hall, 88 N.C. App. 297, 309, 363 S.E.2d 189, 197 (1987) (citing White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985)).\nThe defendant has shown no abuse of discretion. The trial court determined that the plaintiff had established five grounds for an unequal equitable distribution, including the parties disparate income and future earning capacity, present and future pension benefits, the liquidity of the marital assets and tax consequences to each party, and plaintiff\u2019s mortgage payments. See G.S. 50-20(c)(l),(2),(5),(9),(ll) and (11a). The findings were supported by competent evidence. Additionally, the trial court\u2019s consideration of which party had custody of the parties\u2019 children related to the need of plaintiff to occupy the marital residence, a proper consideration under G.S. 50-20(c)(4). Accordingly, we hold that the trial court\u2019s findings were sufficient to support its ruling of an unequal division.\nIn sum, we reverse the order of the court and remand for valuation of the marital debt and the entry of new findings of fact and a new distributional order. The remainder of the trial court\u2019s order is affirmed.\nAffirmed in part, reversed and remanded in part.\nJudge SMITH concurs.\nJudge GREENE concurs with separate opinion.", "type": "majority", "author": "EAGLES, Judge." }, { "text": "Judge Greene\nconcurring.\nI write separately to emphasize that on remand the trial court is required to enter an entirely new distributional order, after full consideration of the holdings of this Court. Although we hold that the previous \u201cunequal distribution\u201d was supported by findings in the record, we have determined that other errors committed require a new distributional order.", "type": "concurrence", "author": "Judge Greene" } ], "attorneys": [ "Law Offices of Mark E. Sullivan, P.A., by Mark E. Sullivan and Nancy L. Grace, for the plaintiff-appellee.", "Robert T. Hedrick for defendant-appellant." ], "corrections": "", "head_matter": "MICHELE N. MROZEK (GARDNER), Plaintiff v. EDWARD MROZEK, JR., Defendant\nNo. COA97-315\n(Filed 17 March 1998)\n1. Divorce and Separation \u00a7 147 (NCI4th)\u2014 equitable distribution \u2014 marital debt \u2014 possible statute of limitations defense\nThe trial court erred in an equitable distribution action by finding that a marital debt owed to defendant\u2019s parents had no value as of the date of separation because it was not legally enforceable due to the running of the statute of limitations with no payments and no acknowledgment of the debt. There is no evidence that defendant intends to assert a statute of limitations defense to the collection of the debt and the unequivocal inference is that he would not do so. Any concerns the trial court may have with respect to the fact that this marital debt is owed to defendant\u2019s parents or that defendant is the sole signatory and may have an affirmative defense to repayment are more properly treated as distributional factors.\n2. Divorce and Separation \u00a7 137 (NCI4th)\u2014 equitable distribution \u2014 valuation of marital home \u2014 date of separation\nThe trial court did not abuse its discretion in an equitable distribution action by valuing the marital home as of the date of separation where defendant contended that there was evidence that the value was higher at the time of trial. Defendant\u2019s argument was that plaintiff had secured a loan based on a higher appraisal value and that insurance coverage had been specified by an insurance company at a higher value. However, the loan was obtained two years after the separation, five months after the hearing, and the month before the judgment was signed, and the lender chose the appraiser and the witness at the hearing. The trial court found that plaintiff\u2019s witness had extensive experience at appraisals and qualified as an expert and was well within its discretion in choosing this witness\u2019s separation date appraisal figure.\n3. Divorce and Alimony \u00a7 165 (NCI4th)\u2014 equitable distribution \u2014 distributive award \u2014 interest\nThe trial court did not err by failing to award interest on a distributive award in an equitable distribution proceeding. The decision of whether to order the payment of interest on a distributive award is within the discretion of the trial judge.\n4. Divorce and Alimony \u00a7 180 (NCI4th)\u2014 equitable distribution \u2014 distributive award \u2014 findings\u2014too general\nA distributive award in an equitable distribution proceeding was remanded where the finding of fact that the court had considered and weighed all of the evidence relating to the distributional factors was too general for effective appellate review.\n5. Trial \u00a7 540 (NCI4th)\u2014 equitable distribution \u2014 motion for new trial \u2014 material misrepresentations and new evidence\nThe trial court did not abuse its discretion by denying defendant\u2019s motions for a new trial or to amend the judgment in an equitable distribution action where defendant contended that there was new evidence and that plaintiff had made material misrepresentations. The alleged misrepresentation was a loan application and appraisal made five months after trial which was irrelevant to the court\u2019s determination, the appraiser was selected by the credit union, not plaintiff, plaintiff did not know that the appraiser would be appraising the property in the future, and the evidence was not new as the loan appraiser testified as an expert for defendant at trial.\n6. Divorce and Separation \u00a7 161 (NCI4th)\u2014 equitable distribution \u2014 unequal distribution \u2014 no abuse of discretion\nThe trial court did not abuse its discretion by making an unequal distribution of marital property in an equitable distribution action where the court determined that the plaintiff had established five grounds for an unequal distribution, the findings were supported by competent evidence, and the trial court\u2019s consideration of which party had custody of the parties\u2019 children related to the need of plaintiff to occupy the marital residence, a proper consideration.\nJudge Greene concurring.\nAppeal by defendant from orders entered 5 June 1996 and 12 July 1996 by Judge James R. Fullwood in Wake County District Court. Heard in the Court of Appeals 6 January 1998.\nThe plaintiff and defendant were married on 20 August 1977, separated on 31 May 1994, and divorced on 9 June 1995. An equitable distribution hearing was held on 11 December 1995 and the court entered judgment on 5 June 1996.\nThe parties\u2019 primary asset was the marital residence located in New Hill, North Carolina. At the time of the equitable distribution hearing, plaintiff resided there with the parties\u2019 two minor children. The parties presented conflicting evidence at trial as to the value of the residence. The court valued the home at $199,700.00 as of 31 May 1994, the date of separation, and at $210,000.00 as of 11 December 1995, the date of trial.\nDefendant introduced evidence at trial that the parties borrowed $25,000.00 from the defendant\u2019s parents and he signed an unsecured promissory note to his parents on 28 October 1986. The money was used to pay some of the cost of constructing the marital residence. Defendant testified that he did not discuss the loan with plaintiff or ask her to co-sign the note. The note was not signed by plaintiff. No payments have ever been made to the defendant\u2019s parents to satisfy the note. The amount due on the note at separation was $45,961.48 including interest. Defendant testified at trial that the loan was a valid debt and that he intended to repay it with interest under the terms of the note. The court found that the debt had been a marital debt, but of no value as of the date of separation. The court determined that the note was no longer enforceable because of the running of the statute of limitations.\nThe trial court concluded that an unequal division of the marital property in favor of plaintiff was equitable and awarded plaintiff $62,802.45 and the defendant $47,377.29 from the net marital estate. To facilitate the distribution, the court divided the assets and debts of the estate so that plaintiff received $79,708.19 and defendant $30,471.55 in assets, and ordered plaintiff to pay a distributive cash award of $16,905.74 to the defendant.\nThe defendant moved to amend the judgment and for new trial on 14 June 1996. Defendant asserted as grounds for the motions that there was newly discovered evidence which the defendant could not have discovered and produced at trial and that the plaintiff by her evidence at the hearing had misled the court and misrepresented the facts. The court denied the motions on 12 July 1996. Defendant appeals.\nLaw Offices of Mark E. Sullivan, P.A., by Mark E. Sullivan and Nancy L. Grace, for the plaintiff-appellee.\nRobert T. Hedrick for defendant-appellant." }, "file_name": "0043-01", "first_page_order": 83, "last_page_order": 92 }