{ "id": 11201920, "name": "DORIS FRIEND-NOVORSKA, Plaintiff v. JAMES C. NOVORSKA, Defendant", "name_abbreviation": "Friend-Novorska v. Novorska", "decision_date": "1998-12-01", "docket_number": "No. COA98-84", "first_page": "508", "last_page": "514", "citations": [ { "type": "official", "cite": "131 N.C. App. 508" } ], "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": "493 S.E.2d 454", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "347 N.C. 266", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 551087, 551279, 551189, 551093, 551382 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/nc/347/0266-05", "/nc/347/0266-03", "/nc/347/0266-01", "/nc/347/0266-02", "/nc/347/0266-04" ] }, { "cite": "486 S.E.2d 432", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "439" } ], "opinion_index": 0 }, { "cite": "126 N.C. App. 561", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11712046 ], "year": 1997, "pin_cites": [ { "page": "572" } ], "opinion_index": 0, "case_paths": [ "/nc-app/126/0561-01" ] }, { "cite": "418 S.E.2d 665", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "331 N.C. 553", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2500131, 2498989, 2497008, 2499287, 2497209 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc/331/0553-05", "/nc/331/0553-01", "/nc/331/0553-02", "/nc/331/0553-03", "/nc/331/0553-04" ] }, { "cite": "415 S.E.2d 565", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1992, "pin_cites": [ { "page": "573" } ], "opinion_index": 0 }, { "cite": "106 N.C. App. 91", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 5313691 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc-app/106/0091-01" ] }, { "cite": "493 S.E.2d 455", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "347 N.C. 267", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 551330, 551365, 551193, 551164, 551070 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/nc/347/0267-02", "/nc/347/0267-04", "/nc/347/0267-01", "/nc/347/0267-05", "/nc/347/0267-03" ] }, { "cite": "488 S.E.2d 265", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1997, "opinion_index": 0 }, { "cite": "127 N.C. App. 109", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11792557 ], "weight": 2, "year": 1997, "opinion_index": 0, "case_paths": [ "/nc-app/127/0109-01" ] }, { "cite": "425 S.E.2d 696", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1993, "opinion_index": 0 }, { "cite": "333 N.C. 342", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2548512 ], "weight": 3, "year": 1993, "opinion_index": 0, "case_paths": [ "/nc/333/0342-01" ] }, { "cite": "324 S.E.2d 287", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1985, "pin_cites": [ { "page": "289", "parenthetical": "husband's actions in depositing funds in joint savings account not sufficient evidence of an express contrary intention in conveyance" } ], "opinion_index": 0 }, { "cite": "72 N.C. App. 332", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526689 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "336", "parenthetical": "husband's actions in depositing funds in joint savings account not sufficient evidence of an express contrary intention in conveyance" } ], "opinion_index": 0, "case_paths": [ "/nc-app/72/0332-01" ] }, { "cite": "338 S.E.2d 815", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "pin_cites": [ { "page": "817", "parenthetical": "although husband added wife's name to bank account and annuity, trial court held not an express contrary intention in conveyance; properly classified as separate property" } ], "opinion_index": 0 }, { "cite": "79 N.C. App. 170", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8519808 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "172", "parenthetical": "although husband added wife's name to bank account and annuity, trial court held not an express contrary intention in conveyance; properly classified as separate property" } ], "opinion_index": 0, "case_paths": [ "/nc-app/79/0170-01" ] }, { "cite": "346 S.E.2d 430", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "317 N.C. 437", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4772767 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/317/0437-01" ] }, { "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": "916" } ], "opinion_index": 0 }, { "cite": "74 N.C. App. 144", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523505 ], "year": 1985, "pin_cites": [ { "page": "154" } ], "opinion_index": 0, "case_paths": [ "/nc-app/74/0144-01" ] }, { "cite": "329 S.E.2d 393", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "313 N.C. 508", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4726657, 4719746, 4722222, 4725303, 4719804 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/313/0508-03", "/nc/313/0508-04", "/nc/313/0508-01", "/nc/313/0508-02", "/nc/313/0508-05" ] }, { "cite": "324 S.E.2d 33", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "72 N.C. App. 205", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526494 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc-app/72/0205-01" ] }, { "cite": "330 S.E.2d 616", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "313 N.C. 612", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4722697, 4725936, 4721340, 4722525, 4724158 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/313/0612-03", "/nc/313/0612-05", "/nc/313/0612-01", "/nc/313/0612-02", "/nc/313/0612-04" ] }, { "cite": "325 S.E.2d 260", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "269" } ], "opinion_index": 0 }, { "cite": "72 N.C. App. 372", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526819 ], "year": 1985, "pin_cites": [ { "page": "381" } ], "opinion_index": 0, "case_paths": [ "/nc-app/72/0372-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 5020", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "(b)(2)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 50-20", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 6, "year": 1997, "pin_cites": [ { "page": "(b)(l)" }, { "page": "(b)(2)" }, { "page": "(b)(2)" }, { "page": "(b)(2)" }, { "page": "(b)(2)" } ], "opinion_index": 0 }, { "cite": "324 S.E.2d 829", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1985, "pin_cites": [ { "page": "831-32" }, { "page": "832" } ], "opinion_index": 0 }, { "cite": "312 N.C. 770", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4755941 ], "year": 1985, "pin_cites": [ { "page": "774-75" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0770-01" ] } ], "analysis": { "cardinality": 645, "char_count": 14186, "ocr_confidence": 0.747, "pagerank": { "raw": 1.0085679694465111e-07, "percentile": 0.5414678616398099 }, "sha256": "4977c188acea8ebf8684e41e78d4aab3d43f539d67247469ea97865a5557706d", "simhash": "1:e04351bb763b345e", "word_count": 2343 }, "last_updated": "2023-07-14T20:31:28.584435+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges MARTIN, John C. and TIMMONS-GOODSON concur." ], "parties": [ "DORIS FRIEND-NOVORSKA, Plaintiff v. JAMES C. NOVORSKA, Defendant" ], "opinions": [ { "text": "HORTON, Judge.\nIn 1981, the North Carolina General Assembly \u201csought to alleviate the unfairness of the common law [title theory] rule by enacting our Equitable Distribution Act.... Equitable distribution reflects the idea that marriage is a partnership enterprise to which both spouses make vital contributions . . . .\u201d White v. White, 312 N.C. 770, 774-75, 324 S.E.2d 829, 831-32 (1985). \u201c[T]he statute is a legislative enactment of public policy so strongly favoring the equal division of marital property that an equal division is made mandatory \u2018unless the court determines that an equal division is not equitable.\u2019 N.C.G.S. 50-20(c).\u201d Id. at 776, 324 S.E.2d at 832.\nThe Equitable Distribution Act (the Act) expresses a legislative preference for marital property through a provision creating a presumption that \u201call property acquired after the date of marriage and before the date of separation is marital property except property which is separate property under subdivision (2) of this subsection.\u201d N.C. Gen. Stat. \u00a7 50-20(b)(l) (Cum. Supp. 1997). The Act then defines separate property in subsection (2) as \u201call real and personal property acquired by a spouse before marriage or acquired by a spouse by bequest, devise, descent, or gift during the course of the marriage.\u201d N.C. Gen. Stat. \u00a7 5020(b)(2).\nThe language of this subsection expresses \u201ca clear legislative intent that separate property brought into the marriage or acquired by a spouse during the marriage be returned to that spouse, if possible, upon dissolution of the marriage.\u201d Wade v. Wade, 72 N.C. App. 372, 381, 325 S.E.2d 260, 269, disc. review denied, 313 N.C. 612, 330 S.E.2d 616 (1985). It is clear that a gift received by a spouse from a third party is the separate property of the receiving spouse. See Loeb v. Loeb, 72 N.C. App. 205, 324 S.E.2d 33, cert. denied, 313 N.C. 508, 329 S.E.2d 393 (1985). Where, however, a spouse makes a gift of separate property to the other spouse during marriage, the property is considered the separate property of the receiving spouse only if \u201csuch an intention is stated in the conveyance.\u201d N.C. Gen. Stat. \u00a7 50-20(b)(2).\nFurther, where a spouse acquires property in exchange for his or her separate property, the acquired property remains separate \u201cregardless of whether the title is in the name of the husband or wife or both and shall not be considered to be marital property unless a contrary intention is expressly stated in the conveyance.\u201d Id. In this case, it is not disputed that defendant exchanged separate funds he inherited from his mother\u2019s estate for the investments in the IDS fund. However, plaintiff argues the IDS fund should be classified as marital property because the evidence demonstrates that defendant intended the IDS fund to be held as marital property.\nThe plain language of the statute requires that in order to classify a joint account created by the deposit of separate funds as marital property, the spouse claiming such a classification must demonstrate by a preponderance of the evidence that the exchange of separate property was accompanied by: (1) an intention that the account be marital property; and (2) that such intention was expressly stated in the conveyance. N.C. Gen. Stat. \u00a7 50-20(b)(2). We have found that in cases involving the exchange of separate property for real property held by the entireties, there is a presumption of gift, rebuttable only by clear, cogent and convincing evidence. McLeod v. McLeod, 74 N.C. App. 144, 154, 327 S.E.2d 910, 916, cert. denied, 314 N.C. 331, 333 S.E.2d 488 (1985), overruled in part on other grounds, Johnson v. Johnson, 317 N.C. 437, 346 S.E.2d 430 (1986).\nHowever, we have not found an \u201cexpress statement\u201d of an intent to create marital property in any of our reported cases involving personal property and the creation of joint accounts. Instead, we have, pursuant to the plain language of the \u201cexchange provision\u201d of N.C. Gen. Stat. \u00a7 50-20(b)(2), uniformly held that \u201c[t]he deposit of [separate] funds into a joint account, standing alone, is not sufficient evidence to show a gift or an intent to convert the funds from separate property to marital property.\u201d Manes v. Harrison-Manes, 79 N.C. App. 170, 172, 338 S.E.2d 815, 817 (1986) (although husband added wife\u2019s name to bank account and annuity, trial court held not an express contrary intention in conveyance; properly classified as separate property); Brown v. Brown, 72 N.C. App. 332, 336, 324 S.E.2d 287, 289 (1985) (husband\u2019s actions in depositing funds in joint savings account not sufficient evidence of an express contrary intention in conveyance).\nPlaintiff argues she met her burden in this case by producing evidence which demonstrated defendant intended the IDS account to be the property of the marital estate. Plaintiff contends that in addition to the establishment of the joint IDS account, defendant-husband stated even before he received the bequest from his mother that at least part of his inheritance would be used \u201cfor the marriage.\u201d She also argues that the parties met jointly with an investment advisor before setting up the joint account so the advisor could help them with long-range financial planning for their futures; that the parties spent about $100,000.00 of defendant\u2019s inherited funds for marital purposes; and that they met with a financial advisor to discuss investments for their futures. She stresses the inherited funds were first placed in a joint checking account and then in a joint savings account, both of which she had equal access with defendant. Finally, she argues that when defendant added $39,000.00 of separate funds to the account in question, he did so as part of a long-range financial planning for both their futures.\nHowever, plaintiff ignores the plain language of the statute which requires that a \u201ccontrary intention [be] expressly stated in the conveyance.\u201d N.C. Gen. Stat. \u00a7 50-20(b)(2). Although this \u201cexchange provision\u201d has been the subject of scholarly comment, no decisions of this Court answer such questions as whether the \u201cexpress statement\u201d can be oral, whether such statement must be made contemporaneously with the exchange of property, and whether the' \u201cconveyance\u201d must be in writing.\nAssuming, arguendo, that defendant\u2019s statement that he intended to use \u201cpart\u201d of his inheritance for marital purposes meets the requirement of an \u201cexpress statement\u201d of intention, it does not entitle plaintiff to a favorable decision on the issue for at least three reasons. First, defendant\u2019s statement is not an express statement of intention that the IDS funds were to be the property of the marital estate. At best, it amounts to a statement of intention that a portion of his inheritance was going to be used for marital purposes and, in fact, more than $100,000.00 was used in that fashion. Second, plaintiff was not able to offer evidence of any express statement by defendant that the IDS funds would be marital property. Third, the statement in question was made about a year prior to defendant\u2019s exchanging his separate funds for the IDS account. Due to the passage of time, we do not believe the statement was one made \u201cin the conveyance.\u201d Although the focus of the parties\u2019 arguments is on the IDS account, we believe the same reasoning would apply to the deposit of the inherited funds in the joint checking and savings accounts.\nFurther, defendant offered unequivocal testimony that he never intended the IDS funds to be a gift either to plaintiff or the marital estate, and the trial court found his testimony to be credible. After weighing the evidence, the trial court found as a fact that \u201cdefendant at no time expressly stated that he intended to make the assets in this account a gift to the marriage or a gift to the plaintiff.\u201d In its conclusions of law, the trial court stated the \u201cevidence shows that the defendant at no time during the marriage expressly stated that the funds deposited in the IDS fund were considered by him to be marital property or in any way intended by the defendant to be a gift to the marriage by depositing the funds into joint accounts.\u201d The trial court then adjudged the entire IDS account to be the separate property of defendant.\nFinally, plaintiff argues the decision of our Supreme Court in Haywood v. Haywood, 333 N.C. 342, 425 S.E.2d 696 (1993), and our recent decision in Holterman v. Holterman, 127 N.C. App. 109, 488 S.E.2d 265, disc. review denied, 347 N.C. 267, 493 S.E.2d 455 (1997) changed the holdings in Manes, 79 N.C. App. 170, 338 S.E.2d 815; Brown, 72 N.C. App. 332, 324 S.E.2d 287; and other similar decisions of this Court dealing with the deposit of separate funds into joint accounts. Plaintiff claims both Haywood and Holterman stand for the proposition that \u201cexpress donative intent could be inferred from depositing the separate funds into jointly held accounts and the parties\u2019 subsequent actions in purchasing marital assets.\u201d We disagree.\nOn the date of separation of the Haywood parties, 100 gold krug-gerands were held in a joint lockbox in Canada. See Haywood v. Haywood, 106 N.C. App. 91, 415 S.E.2d 565, disc. reviews denied, 331 N.C. 553, 418 S.E.2d 665-66 (1992), rev\u2019d in part, 333 N.C. 342, 425 S.E.2d 696 (1993). The trial court held the coins were marital property. The decision of the trial court was reversed by a majority of this Court, with Judge Wynn dissenting. In his dissent, Judge Wynn did recite that the coins were held in a joint lockbox to which the wife had a key, but the crucial statement in the dissent is that \u201cplaintiff [husband] was unable to sufficiently trace the source of the funds with which he contends that he purchased the precious metals.\u201d Id. at 104, 415 S.E.2d at 573. The decision of this Court was reversed by our Supreme Court \u201cfor the reasons stated in the dissent by Judge Wynn_\u201d See Haywood, 333 N.C. 342, 425 S.E.2d 696 (1993).\nIn Holterman, 127 N.C. App. 109, 488 S.E.2d 265, the wife\u2019s inherited funds had been commingled with marital funds in joint accounts and used for marital purposes for more than 40 years, so that it was not possible at trial to trace her separate funds. In both Haywood and Holterman there were serious evidentiary problems, so that the source of funds for the assets in question could neither be clearly identified nor traced. In the instant case, there is no tracing problem and thus neither Haywood nor Holterman supports plaintiffs position.\nWe hold the findings of the trial court are supported by competent evidence and the findings of fact, in turn, support its conclusions of law. In light of this disposition, we need not address appellee\u2019s cross-assignment of error. N.C.R. App. P. 10(d); Hanton v. Gilbert, 126 N.C. App. 561, 572, 486 S.E.2d 432, 439, disc. review denied, 347 N.C. 266, 493 S.E.2d 454 (1997). For the foregoing reasons, the decision of the trial court is\nAffirmed.\nJudges MARTIN, John C. and TIMMONS-GOODSON concur.", "type": "majority", "author": "HORTON, Judge." } ], "attorneys": [ "Hayes Hofler & Associates, P.A., by R. Hayes Hofler, for plaintiff appellant.", "Sharpe & Mackritis, P.L.L.C., by Jimmy D. Sharpe and Lisa M. Dukelow, for defendant appellee." ], "corrections": "", "head_matter": "DORIS FRIEND-NOVORSKA, Plaintiff v. JAMES C. NOVORSKA, Defendant\nNo. COA98-84\n(Filed 1 December 1998)\nDivorce\u2014 equitable distribution \u2014 creation of joint account from separate funds \u2014 expressed intent\nThe trial court did not err in an equitable distribution action by classifying a joint wealth management account as defendant-husband\u2019s separate property and distributing it to him where it was opened with funds inherited by defendant and subsequently added to with separate properties in the form of securities. The plain language of N.C.G.S. \u00a7 50-20(b)(2) requires that the spouse claiming a joint account as marital property where the account was created with separate funds demonstrate by a preponderance of the evidence that the exchange of separate property was accompanied by an intention that the account be marital property and that such intention was expressly stated in the conveyance.\nAppeal by plaintiff from equitable distribution judgment entered 24 July 1997 by Judge Charles T. L. Anderson in Orange County District Court. Heard in the Court of Appeals 21 October 1998.\nPlaintiff Doris Friend-Novorska and defendant James C. Novorska were married on 13 February 1982. In March 1989, defendant\u2019s mother died. Defendant testified that he knew he was the beneficiary under his mother\u2019s will prior to her death, and \u201chad there been any funds left over . . . what I wanted to do was to invest some, and for my own personal use, and to use the remainder for the marriage.\u201d On 12 February 1990, defendant deposited $230,000.00 of his inherited funds in a joint savings account with plaintiff. In March 1990 the parties transferred $130,780.00 from their joint savings account into a joint checking account.\nAfter several meetings attended by plaintiff, defendant, and a financial advisor, the following disposition was made of the inherited funds: (1) a $50,000.00 trust fund was established for defendant\u2019s son by a prior marriage; (2) a small IRA was established for plaintiff; (3) a small IRA was set up for defendant; (4) a small tax exempt bond fund was set up in the joint names of plaintiff and defendant; and (5) the IDS account which is the subject of this appeal was opened by transferring $79,000.00 from the joint checking account into the joint IDS account on 4 April 1990. The balance of the $230,000.00 inheritance was used by both plaintiff and defendant to buy marital property items. In November 1993, defendant deposited additional separate property in the form of securities valued at $39,000.00 into the IDS account.\nThe parties separated on 30 June 1995, at which time the IDS Wealth Management account had a net value of $157,496.96. The increase in value of the IDS account was entirely passive. At trial, defendant testified that he never intended to make a gift to plaintiff of any interest in the IDS account. The trial court classified the joint IDS account as defendant-husband\u2019s separate property and distributed it to him. Plaintiff appealed, contending the IDS account should have been classified as marital property and equitably distributed.\nHayes Hofler & Associates, P.A., by R. Hayes Hofler, for plaintiff appellant.\nSharpe & Mackritis, P.L.L.C., by Jimmy D. Sharpe and Lisa M. Dukelow, for defendant appellee." }, "file_name": "0508-01", "first_page_order": 542, "last_page_order": 548 }