{ "id": 11236874, "name": "RAEFORD J. HEATH, Plaintiff v. BARBARA GAYLE HEATH, Defendant", "name_abbreviation": "Heath v. Heath", "decision_date": "1999-01-05", "docket_number": "No. COA98-78", "first_page": "36", "last_page": "40", "citations": [ { "type": "official", "cite": "132 N.C. App. 36" } ], "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": "358 S.E.2d 102", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "105-06", "parenthetical": "stipulation in record invalid where \"record does not affirmatively reflect that the parties understood the legal effect of their stipulation\"" } ], "opinion_index": 0 }, { "cite": "86 N.C. App. 418", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12132703 ], "year": 1987, "pin_cites": [ { "page": "423", "parenthetical": "stipulation in record invalid where \"record does not affirmatively reflect that the parties understood the legal effect of their stipulation\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/86/0418-01" ] }, { "cite": "441 S.E.2d 613", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1994, "pin_cites": [ { "page": "617", "parenthetical": "citations omitted" }, { "page": "617" } ], "opinion_index": 0 }, { "cite": "114 N.C. App. 125", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527235 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "132", "parenthetical": "citations omitted" }, { "page": "132" } ], "opinion_index": 0, "case_paths": [ "/nc-app/114/0125-01" ] }, { "cite": "438 S.E.2d 202", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "335 N.C. 177", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2529425, 2530259, 2532590, 2530871 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc/335/0177-01", "/nc/335/0177-02", "/nc/335/0177-04", "/nc/335/0177-03" ] }, { "cite": "433 S.E.2d 196", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "223" } ], "opinion_index": 0 }, { "cite": "111 N.C. App. 460", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522769 ], "year": 1993, "pin_cites": [ { "page": "505" } ], "opinion_index": 0, "case_paths": [ "/nc-app/111/0460-01" ] }, { "cite": "417 S.E.2d 255", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "parenthetical": "noting that G.S. \u00a7 50-20(e" } ], "opinion_index": 0 }, { "cite": "331 N.C. 287", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2501957, 2498451, 2497272, 2497849, 2501053 ], "year": 1992, "pin_cites": [ { "parenthetical": "noting that G.S. \u00a7 50-20(e" } ], "opinion_index": 0, "case_paths": [ "/nc/331/0287-01", "/nc/331/0287-02", "/nc/331/0287-03", "/nc/331/0287-05", "/nc/331/0287-04" ] }, { "cite": "412 S.E.2d 917", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "920", "parenthetical": "noting that G.S. \u00a7 50-20(e" } ], "opinion_index": 0 }, { "cite": "105 N.C. App. 247", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522461 ], "year": 1992, "pin_cites": [ { "page": "252", "parenthetical": "noting that G.S. \u00a7 50-20(e" } ], "opinion_index": 0, "case_paths": [ "/nc-app/105/0247-01" ] }, { "cite": "434 S.E.2d 873", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1993, "pin_cites": [ { "page": "877" } ], "opinion_index": 0 }, { "cite": "112 N.C. App. 15", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8519937 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc-app/112/0015-01" ] } ], "analysis": { "cardinality": 430, "char_count": 7274, "ocr_confidence": 0.75, "pagerank": { "raw": 3.223622949643397e-07, "percentile": 0.867268902549917 }, "sha256": "a34ceff4dedb565eac61be457cc3a2009dfaf65c0acd9d536aebe1e20402c97d", "simhash": "1:aeea70c875aee778", "word_count": 1126 }, "last_updated": "2023-07-14T21:08:15.604309+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges MARTIN, Mark D., and McGEE concur.", "Judge MARTIN, Mark D. concurred prior to 4 January 1999." ], "parties": [ "RAEFORD J. HEATH, Plaintiff v. BARBARA GAYLE HEATH, Defendant" ], "opinions": [ { "text": "JOHN, Judge.\nPlaintiff appeals the trial court\u2019s equitable distribution judgment. He contends the court erred by: 1) awarding defendant distributive awards from certain retirement accounts, 2) valuing and distributing a defined benefit pension plan, 3) considering child support payments in reaching its equitable distribution determination, and 4) awarding an unequal distribution of the parties\u2019 marital property. For the reasons stated herein, we vacate the judgment of the trial court and remand for entry of a new judgment.\nIn view of our disposition, a detailed recitation of the facts is unnecessary. The \u201cJudgment and Order of Equitable Distribution\u201d (the judgment) at issue was \u201centered nunc pro tunc as of February 14, 1997.\u201d Five of plaintiff\u2019s seven subsequent assignments of error to the judgment challenge the trial court\u2019s valuation and distribution of three retirement benefit plans (the pension plans).\nRegarding the pension plans, the judgment contained the \u201cspecific\u201d finding \u201cthat the parties [had] stipulated to the division of [the] employment-related benefits\u201d in the manner directed therein by the trial court. Notwithstanding, plaintiff challenges the court\u2019s distribution of the benefits in accordance with the purported stipulation.\nIn particular, plaintiff cites N.C.G.S. \u00a7 50-20(e) (1995) as establishing a presumption favoring an in kind distribution of marital property, and this Court\u2019s decision in Brown v. Brown, 112 N.C. App. 15, 434 S.E.2d 873 (1993), as requiring\na finding by the [trial] court that \u201can equitable distribution of all or portions of the marital property in kind would be impractical\u201d\nid. at 19, 434 S.E.2d at 877, in order to \u201covercome\u201d the in kind distribution presumption and permit a distributive award, id.\nWe believe plaintiff reads G.S. \u00a7 50-20(e) and the mandate of Brown correctly. The judgment sub judice contains no finding of fact, supported by evidence in the record, that an in kind distribution would be impractical, nor, save for the purported stipulation (as discussed below), does the judgment reflect any basis for the distributive awards entered therein. See Sonek v. Sonek, 105 N.C. App. 247, 252, 412 S.E.2d 917, 920, disc. review allowed, 331 N.C. 287, 417 S.E.2d 255 (1992) (noting that G.S. \u00a7 50-20(e) also \u201cpermits a distributive award in order \u2018to facilitate, effectuate or supplement a distribution of marital property,\u2019 \u201d this Court observed that \u201c[n]o North Carolina court has held that distributive awards are authorized only when a distribution in kind is impractical\u201d).\nAccordingly, we must order the judgment containing distributive awards unsupported by findings of fact vacated and this matter remanded for entry of judgment not inconsistent with our opinion herein. On remand, the trial court shall rely upon the existing record, but may in its sole discretion receive such further evidence and further argument from the parties as it deems necessary and appropriate to comply with the instant opinion. See Smith v. Smith, 111 N.C. App. 460, 505, 433 S.E.2d 196, 223, disc. review denied, 335 N.C. 177, 438 S.E.2d 202 (1993).\nPrior to concluding, we observe that the stipulation found as fact in the instant judgment would ordinarily obviate the necessity for the further findings of fact by the trial court ordered herein. See 2 Kenneth S. Broun, Brandis & Broun on North Carolina Evidence \u00a7 198, at 22-24 (5th ed. 1998) (stipulation is not itself evidence, but rather \u201cremoves the admitted fact from the field of evidence by formally conceding its existence\u201d). However,\n[i]n equitable distribution actions, our courts favor written stipulations which are duly executed and acknowledged by the parties. Oral stipulations, however, are binding if the record affirmatively demonstrates: (1) the trial court read the stipulation terms to the parties, and (2) the parties understood the effects of their agreement.\nFox v. Fox, 114 N.C. App. 125, 132, 441 S.E.2d 613, 617 (1994) (citations omitted) (emphasis in original).\nThe sole written stipulation which appears in the record regarding the pension plans is found at Schedule C of the Pre-Trial Order. The pension plans are identified and valued thereon \u2014 under the heading \u201cAgree on Value; Disagree on Ownership\u201d \u2014 as follows:\nUPS Teamsters Pension Plan (Present value calculation)\n$167,503.00\nUPS 401(k)\n$ 9,908.00\nUPS Thrift Plan\n$ 72,000.00.\nNothing is contained on the Schedule or any other document in the record purporting to set forth the parties\u2019 stipulation as to distribution of the pension plans.\nIn addition, close review of the transcript of proceedings reflects no mention of an oral stipulation corresponding to the trial court\u2019s finding of fact, and certainly no examination of the parties by the trial court as directed by Fox. Finally, we consider it significant that, in responding to plaintiff\u2019s arguments, defendant asserts no reliance upon the stipulation referenced in the judgment.\nIn short, the stipulation to distributive awards set out in the judgment is unsupported in the record, fails to conform with the safeguards enunciated by this Court regarding stipulations in equitable distribution cases, see Fox, 114 N.C. App. at 132, 441 S.E.2d at 617, and is no way relied upon, indeed is ignored, by the party in the position of defending the judgment. We must therefore conclude that no stipulation authorized the trial court\u2019s distributive awards of the pension plans. See Byrd v. Owens, 86 N.C. App. 418, 423, 358 S.E.2d 102, 105-06 (1987) (stipulation in record invalid where \u201crecord does not affirmatively reflect that the parties understood the legal effect of their stipulation\u201d).\nAs any remaining assignments of error appear unlikely to recur on remand, we decline to discuss them.\nVacated and remanded.\nJudges MARTIN, Mark D., and McGEE concur.\nJudge MARTIN, Mark D. concurred prior to 4 January 1999.", "type": "majority", "author": "JOHN, Judge." } ], "attorneys": [ "Dotson and Kirkman, by Marshall F. Dotson, III and Tracey G. Tankersley, for plaintiff-appellant.", "Winfree and Winfree, by Charles H. Winfree, for defendant-appellee." ], "corrections": "", "head_matter": "RAEFORD J. HEATH, Plaintiff v. BARBARA GAYLE HEATH, Defendant\nNo. COA98-78\n(Filed 5 January 1999)\n1. Divorce\u2014 equitable distribution \u2014 findings\nAn equitable distribution judgment containing distributive awards regarding pension plans was remanded where the judgment contained no finding of fact supported by evidence in the record that an in-kind distribution would be impractical and did not reflect any basis for the distributive awards other than a stipulation discussed below. N.C.G.S. \u00a7 50-20(e).\n2. Divorce\u2014 equitable distribution \u2014 distributive award\u2014 stipulation \u2014 invalid\nIn an equitable distribution judgment involving distributive awards of pension plans, the stipulation to distributive awards set out in the judgment was unsupported in the record, failed to conform with the safeguards enunciated by the Court of Appeals in equitable distribution cases, and was ignored by the party in the position of defending the judgment; therefore, no stipulation authorized the trial court\u2019s distributive awards of the pension plans.\nAppeal by plaintiff from equitable distribution judgment and order filed 13 June 1997 by Judge William L. Daisy in Guilford County District Court. Heard in the Court of Appeals 24 September 1998.\nDotson and Kirkman, by Marshall F. Dotson, III and Tracey G. Tankersley, for plaintiff-appellant.\nWinfree and Winfree, by Charles H. Winfree, for defendant-appellee." }, "file_name": "0036-01", "first_page_order": 70, "last_page_order": 74 }