{ "id": 11468907, "name": "WALTROUT ATKINSON, Plaintiff v. TONY R. CHANDLER, Defendant", "name_abbreviation": "Atkinson v. Chandler", "decision_date": "1998-08-18", "docket_number": "No. COA97-1215", "first_page": "561", "last_page": "569", "citations": [ { "type": "official", "cite": "130 N.C. App. 561" } ], "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": "115 NC App. 387", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12130255 ], "opinion_index": -1, "case_paths": [ "/nc-app/115/0387-01" ] }, { "cite": "377 S.E.2d 755", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "324 N.C. 247", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2483395, 2487363, 2483437, 2485934, 2485213 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/nc/324/0247-05", "/nc/324/0247-02", "/nc/324/0247-01", "/nc/324/0247-04", "/nc/324/0247-03" ] }, { "cite": "373 S.E.2d 459", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "92 N.C. App. 105", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526462 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc-app/92/0105-01" ] }, { "cite": "444 S.E.2d 449", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1994, "pin_cites": [ { "page": "450" }, { "page": "450" } ], "opinion_index": 0 }, { "cite": "368 S.E.2d 595", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1988, "pin_cites": [ { "page": "599" }, { "page": "599" }, { "page": "600" }, { "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "322 N.C. 396", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2515756 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "404" }, { "page": "404" } ], "opinion_index": 0, "case_paths": [ "/nc/322/0396-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 50-20", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "pin_cites": [ { "page": "(c)" }, { "page": "(c)" } ], "opinion_index": 0 }, { "cite": "115 NC App. 387", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12130255 ], "weight": 2, "pin_cites": [ { "page": "389" } ], "opinion_index": 0, "case_paths": [ "/nc-app/115/0387-01" ] } ], "analysis": { "cardinality": 642, "char_count": 18261, "ocr_confidence": 0.77, "pagerank": { "raw": 8.760177565484505e-08, "percentile": 0.4951448906866771 }, "sha256": "14ccc2e9ba556cd597d5af0782a059b7a15068de5629a8294da6033e7c34450b", "simhash": "1:8b7e74367647b54c", "word_count": 2949 }, "last_updated": "2023-07-14T19:24:27.441929+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges JOHN and McGEE concur." ], "parties": [ "WALTROUT ATKINSON, Plaintiff v. TONY R. CHANDLER, Defendant" ], "opinions": [ { "text": "WYNN, Judge.\nUnder N.C. Gen. Stat. \u00a7 50-20(c), an \u201cequal division of marital property is mandatory unless the trial court determines that an equal division would be inequitable.\u201d Armstrong v. Armstrong, 322 N.C. 396, 404, 368 S.E.2d 595, 599 (1988). In this case, the trial court, having considered evidence regarding the age, health, retirement status and income of the parties, determined that an unequal division of the parties\u2019 marital assets was appropriate. Because the trial court properly considered the distributive factors set forth in N.C.G.S. \u00a7 50-20(c), made sufficient findings of fact on those factors which were contested and properly found that those findings were supported by the evidence in the record, we affirm the trial court\u2019s order.\nThe evidence before the trial court tended to show that the parties to this action married on 22 January 1989, separated on 26 January 1995 and divorced on 17 October 1995. During their marriage, the husband, now fifty-one (51) years of age, served in the United States Navy. After their divorce, the husband retired from the U.S. Navy at the rank of E-5, having completed twenty years and one month of service. The husband now receives military pension payments in the amount of $614.00 a month \u2014 the total value of his military pension being valued at $153,236.00. He also receives military disability payments in the amount of $179.00 per month for a service-related injury.\nOther evidence at the equitable distribution hearing tended to show that the wife, then 57 years old, worked as a civilian at a military installation and retired from that job on 31 August 1995 with twenty-four (24) years of service. She receives pension payments in the amount of $777.17 a month. Because she retired during the parties\u2019 marriage, the trial court found her separate pension interest to be $33,187.00 and the marital interest portion of her pension to be $11,540.00.\nThe evidence also showed that during the parties\u2019 marriage, the parties resided at a house that had been awarded to the wife from a prior divorce and that at the time of the parties separation, the house, which had a tax value of $54,000, had been paid off. After the parties\u2019 divorce, the wife continued to reside in that house while the husband moved to live with his mother in Tennessee.\nOther evidence tended to show that both parties suffered from medical problems. The wife, for example, testified that she suffered from high blood pressure, allergies from cigarette smoking and foot problems. She further testified that as a consequence of these health problems, she was not able to earn a steady income other than the money she earned by working weekend and holiday jobs. The husband testified that he was not in good health, but that he was still able to work part-time for a security firm where he grossed approximately $504.00 per month.\nFinally, the wife testified that during the marriage, she purchased a 1993 Buick LaSabre valued at $11,725.00 and that she paid off the note on the car by June of 1995'.\nUpon presentation of all the evidence and oral arguments, the trial court concluded that under N.C.G.S. \u00a7 50-20(c), the wife was entitled to an unequal distribution of the marital assets. From that order, the husband brings this appeal.\nOn appeal, the husband contends that the trial court\u2019s order awarding an unequal division of the parties\u2019 marital property should be reversed because: (1) the trial court \u201cerroneously attempted] to avoid the effects of this Court\u2019s decision in George v. George, 115 N.C. App. 387, 444 S.E.2d 449 (1994)\u201d in ordering the unequal division; (2) the order fails to set forth adequate findings of fact as to contested distributive factors; and (3) there is insufficient evidence in the record to support a finding in favor of equitable distribution. We address each of the husband\u2019s arguments in turn.\nI.\nThe husband first argues that in ordering an unequal distribution of the parties\u2019 marital property, the trial court \u201cblatantly violated this Court\u2019s decision in George v. George.\u201d We disagree.\nThe issue in George was whether a defendant-husband\u2019s military pension \u201cvested\u201d as of the date of his separation from his wife. The trial court in George, relying on Milam v. Milam, 92 N.C. App. 105, 373 S.E.2d 459 (1988), disc. review denied, 324 N.C. 247, 377 S.E.2d 755 (1989), determined that the husband\u2019s military pension vested during the marriage and therefore classified it as marital property. However on appeal to this Court, we distinguished Milam, noting that because the husband in George could have lost his retirement benefits prior to completing twenty years of service in the military, he \u2014 -unlike the husband in Milam \u2014 was not guaranteed the right to receive his retirement benefits at the time of the parties\u2019 separation. George, 115 N.C. App. at 389, 444 S.E.2d at 450. Accordingly, we held that the trial court in George erred by classifying the military pension as marital property as it indeed had not \u201cvested\u201d as of the date of the parties\u2019 separation. Id. at 389-90, 444 S.E.2d at 450.\nThe husband in the subject case points out that in its equitable distribution determination, the trial court, under finding of fact #17, considered \u201ca portion of the pension that was earned during the marriage.\u201d Thus, the husband contends that the trial court disregarded George by classifying his non-vested pension as marital property. This argument is without merit.\nTo begin, contrary to the husband\u2019s assertion, the trial court in this case did not classify any of his military pension as marital property. Rather, as noted in finding of fact #8, the trial court specifically concluded that \u201cthe Parties had approximately 6 (six) years of marriage and overlapping military service, but [that] pursuant to George v. George, the Defendant\u2019s military pension was not vested until after the Parties separated . . . .\u201d Accordingly, the trial court found that the entirety of the husband\u2019s military pension was his \u201cseparate property.\u201d In addition, regarding the classification of the wife\u2019s pension, the trial court also found that $11,540.00 of her retirement benefits was a \u201cmarital interest\u201d as it had vested during the parties\u2019 marriage. Taking these findings in the context of finding of fact #17, we are not convinced that the trial court, in stating that it had considered \u201ca portion of the pension that was earned during the marriage,\u201d was referring to the husband\u2019s military pension; instead, we believe the court was referring to that portion of the wife\u2019s pension it had previously classified as vested marital property.\nMoreover, assuming arguendo that the trial court did intend to refer to that portion of the husband\u2019s military pension earned during the parties\u2019 marriage, nothing in our holding in George precludes the court from considering a non-vested interest when deciding whether to equitably divide the parties\u2019 marital assets. Our holding in George precludes a court from classifying a party\u2019s military pension as vested marital property where the party possessing the interest is not guaranteed receipt of his benefits at the time of the parties\u2019 separation; it does not prevent a court from considering a party\u2019s non-vested pension as a distributive factor in its equitable distribution determination after having already classified that interest as separate property. Indeed, to have held as such would have been in complete contravention of N.C. Gen. Stat. \u00a7 50-20(c), which specifically enumerates as an equitable distribution factor \u201c[t]he expectation of non-vested pension, retirement, or other deferred compensation rights, which is separate property . . .\nWe, therefore, hold that the trial court in this case did not violate our holding in George v. George, supra, when it ordered an unequal distribution of the parties\u2019 marital property. Accordingly, the husband\u2019s first argument for reversal of the trial court\u2019s order is rejected.\nII.\nIn his second argument, the husband contends that \u201cthe trial court failed to find sufficient facts on contested distributive factors . . . .\u201d Specifically, he argues that the trial court did not make ample findings as to the parties\u2019 respective incomes, liabilities and health. We disagree.\nWhen evidence is presented from which a reasonable finder of fact could determine that an unequal division would be inequitable, a trial court is required to consider the factors set forth in N.C.G.S. \u00a7 50-20(c). Armstrong, 322 N.C. at 404, 368 S.E.2d at 599. \u201cAlthough the trial court [is] not required to recite in detail the evidence considered in determining what division of the property would be equitable,\u201d ultimately, it is required to make findings sufficient to address the statutory factors and to support the division ordered. Id. at 405, 368 S.E.2d at 600. In general, the purpose for such a requirement is to permit the appellate court on review to determine from the record whether the judgment, and the .legal conclusions which underlie it, represent an accurate application of the law. Id. (citations omitted).\nIn this case, the trial court made the following findings of fact pertinent to the division of the parties\u2019 property:\n6. At the time the Parties were married, the Defendant was employed by the United States Navy and retired on December 1, 1995 with twenty (20) years and one month of service and retired at the rank of an E5.\n7. The Defendant receives military retirement and disability retirement of approximately $800.00 (eight hundred dollars) per month.\n8. The Parties had approximately six (6) years of marriage and overlapping military service but pursuant to George v George the Defendant\u2019s military, pension was not vested until after the parties separated, therefore, this is the Defendant\u2019s separate property.\n9. At the time the Parties were married, the Plaintiff was employed as a civilian at AAFES and was residing in a home located at 1314 Folger Avenue, Fayetteville, NC which had been awarded to her pursuant to a previous separation and divorce.\n10. During the course of the marriage, the mortgage was retired by payment of $5,028.53.\n11. The Plaintiff is retired from AAFES and the marital interest of her pension is $11,540.00 and this amount is vested because it was accumulated during the marriage.\n12. During the course of the marriage, the Parties acquired First Union Accounts, accounts at UCB, IRAs and the Plaintiff had a prior IRA of $1,570.00 prior to the marriage of the Parties and the Plaintiffs non-marital interest in her retirement is $33,000.00.\n13. Prior to the marriage the Defendant had acquired a Buick Century in October, 1988 and payments were made during the marriage; this automobile had been previously wrecked and had a reduced value and high mileage on the date of separation and has a value of $3,742.00.\n14. The Parties acquired a 1993 Buick during the marriage with a value of $11,725.00 including a debt of $2,383.\n15. The Plaintiff has separate property totaling $54,589.49 which includes a UCB IRA account, the house located at 1314 Folger Street, Fayetteville, North Carolina and her AAFES retirement of approximately $33,000.00.\n16. The Defendant has as his separate property his entire military retirement valued at $153,236.00.\n17. Pursuant to all the factors set forth in N.C.G.S. \u00a7 50-20(c) the Court has considered the age, the health of the Parties, the current retirement status, the part-time income of the Defendant, separate property and a portion of the pension that was earned during the marriage and has determined that an unequal division in favor of the Plaintiff is appropriate and there should be no distributive award in this matter.\nWe find that these findings of fact sufficiently set forth those statutory factors the court considered in its decision not to equally divide the parties\u2019 property. While finding of fact #17 does not detail the specific evidence the court considered regarding the parties\u2019 income, health and liabilities, we do not believe such a specific recitation was necessary in this case since the court\u2019s finding, when read in conjunction with the other findings in its order, adequately apprises us of the evidence ultimately considered by the court. Accordingly, we hold that the trial court made adequate findings of fact as to the evidence presented by both parties and that it did so in accordance with N.C.G.S. \u00a7 50-20(c).\nIII.\nHaving concluded that the trial court\u2019s findings of fact are on their face sufficient to support its equitable distribution order, we now turn to the husband\u2019s argument that the trial court\u2019s order should be reversed because there was insufficient evidence in the record to support the decision to unequally distribute the parties\u2019 marital assets.\nIn White v. White, supra, our Supreme Court held that because N.C.G.S. \u00a7 50-20 evidenced such a strong public policy in this State in favor of an equal distribution of marital assets, it was mandatory that a trial court equally divide such property unless, as we have already noted, the court determined that an equal division was not equitable. 312 N.C. at 776, 324 S.E.2d at 832-33. The Court went on to note that once the trial court determined that an equitable distribution was indeed warranted, it was incumbent upon it to then, in the exercise of its discretion, assign the weight any given statutory factor should receive. Id. at 777, 324 S.E.2d at 832-33. When assessing the statutory factors, however, the Court made it clear that the party desiring the unequal division of marital property bore the burden of showing, by a preponderance of evidence, that an equal division would not be equitable. Id. Finally, the court noted, a trial court was to always \u201cmake an equitable division of the martial property by balancing the evidence presented by the parties in light of the legislative policy which favors equal division.\u201d Id.\nApplying the principles delineated in White to the facts of this case, we are unable to say that the trial court abused its discretion in concluding that the balance of the evidence presented favored an unequal distribution of the parties\u2019 marital property. To the contrary, our review of the record reveals that the trial court justifiably decided to equitably divide the parties\u2019 property. The evidence showed that at the time of the parties\u2019 separation, the wife did not have the current ability to earn an income, but that the husband worked part-time and received $800.00 per month in military retirement and disability benefits; that after the parties\u2019 separation, the wife paid off the remainder of the $2,383.00 debt on the parties\u2019 1993 Buick, as well as the balance of the mortgage on the home the parties\u2019 resided in during their marriage; that the husband lived with his mother rent free and had limited expenses and outlays to pay each month; and that the wife left the marriage with separate property totaling $54,589.49, while defendant left having as his own separate property, a military pension valued at approximately $153,236.00.\nIn light of the above evidence, we hold that the wife in this case met her evidentiary burden under White and that there was a rational basis for the equitable distribution award ordered by the court. For this reason, as well as those previously discussed, the order below is therefore,\nAffirmed.\nJudges JOHN and McGEE concur.", "type": "majority", "author": "WYNN, Judge." } ], "attorneys": [ "Robin Weaver Hurmence, for 'plaintiff-appellee.", "Beaver, Holt, Richardson, Sternlicht, Burge & Glazier, P.A., by Harold Lee Boughman, Jr., for defendant-appellant." ], "corrections": "", "head_matter": "WALTROUT ATKINSON, Plaintiff v. TONY R. CHANDLER, Defendant\nNo. COA97-1215\n(Filed 18 August 1998)\n1. Divorce\u2014 equitable distribution \u2014 military pension\nThe trial court did not violate the holding in George v. George, 115 NC App. 387, when it ordered an unequal distribution of the parties\u2019 marital property; in stating that it had considered \u201ca portion of the pension that was earned during the marriage,\u201d the court was referring to that portion of the wife\u2019s pension it had previously classified as vested, marital property rather than to the husband\u2019s military pension. Even assuming that the reference was to the husband\u2019s military pension, George precludes a court from classifying a party\u2019s military pension as vested marital property where the party possessing the interest is not guaranteed receipt of his benefits at the time of the parties\u2019 separation; it does not prevent a court from considering a party\u2019s non-vested pension as a distributive factor in its equitable distribution determination after having already classified that interest as separate property.\n2. Divorce\u2014 equitable distribution \u2014 distributive factors\u2014 findings\nThe trial court\u2019s findings in an equitable distribution action sufficiently set forth the statutory factors the court considered in its decision not to equally divide the parties\u2019 property. While finding #17 did not detail the specific evidence the court considered regarding the parties\u2019 income, health and liabilities, a specific recitation was not necessary because the finding, read in conjunction with other findings, adequately apprised the Court of Appeals of the evidence ultimately considered by the court.\n3. Divorce\u2014 equitable distribution \u2014 unequal distribution\u2014 evidence sufficient\nThe trial court did not abuse its discretion in an equitable distribution action by concluding that the balance of evidence favored an unequal distribution of the parties\u2019 marital property where the evidence showed that, at the time of the parties\u2019 separation, the wife did not have the current ability to earn an income, but the husband worked part-time and received $800 per month in military retirement and disability benefits; the wife paid off the debt on the parties\u2019 Buick, as well as the balance of the mortgage on the home the parties\u2019 resided in during the marriage; the husband lived with his mother rent free and had limited expenses and outlays each month; and the wife left the marriage with separate property totaling $54,589.49, while defendant left with a military pension valued at $153,236 as his separate property.\nAppeal by defendant from order entered 16 July 1997 by Judge A. Elizabeth Keever in Cumberland County District Court. Heard in the Court of Appeals 21 May 1998.\nRobin Weaver Hurmence, for 'plaintiff-appellee.\nBeaver, Holt, Richardson, Sternlicht, Burge & Glazier, P.A., by Harold Lee Boughman, Jr., for defendant-appellant." }, "file_name": "0561-01", "first_page_order": 593, "last_page_order": 601 }