{ "id": 9126498, "name": "DAVID CHARLES GAGNON, Plaintiff v. CECELIA ROTHWELL GAGNON, Defendant", "name_abbreviation": "Gagnon v. Gagnon", "decision_date": "2002-03-05", "docket_number": "No. COA01-119", "first_page": "194", "last_page": "200", "citations": [ { "type": "official", "cite": "149 N.C. App. 194" } ], "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": "504 S.E.2d 94", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "95-97", "parenthetical": "approving the trial court's utilization of the fixed percentage method for equitable distribution of plaintiff-wife's military retirement benefits that vested during the marriage, although the majority of the benefits were earned prior to the parties' marriage" } ], "opinion_index": 0 }, { "cite": "130 N.C. App. 561", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11468907 ], "year": 1998, "pin_cites": [ { "page": "563-65", "parenthetical": "approving the trial court's utilization of the fixed percentage method for equitable distribution of plaintiff-wife's military retirement benefits that vested during the marriage, although the majority of the benefits were earned prior to the parties' marriage" } ], "opinion_index": 0, "case_paths": [ "/nc-app/130/0561-01" ] }, { "cite": "354 S.E.2d 506", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "319 N.C. 367", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4745005 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc/319/0367-01" ] }, { "cite": "346 S.E.2d 504", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "508", "parenthetical": "approving the fixed percentage method for distribution of military retirement benefits" } ], "opinion_index": 0 }, { "cite": "82 N.C. App. 329", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358898 ], "year": 1986, "pin_cites": [ { "page": "337", "parenthetical": "approving the fixed percentage method for distribution of military retirement benefits" } ], "opinion_index": 0, "case_paths": [ "/nc-app/82/0329-01" ] }, { "cite": "350 S.E.2d 587", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "589" } ], "opinion_index": 0 }, { "cite": "83 N.C. App. 438", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358755 ], "year": 1986, "pin_cites": [ { "page": "442-43" } ], "opinion_index": 0, "case_paths": [ "/nc-app/83/0438-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 50-20.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "pin_cites": [ { "parenthetical": "d" }, { "parenthetical": "h" } ], "opinion_index": 0 }, { "cite": "463 S.E.2d 236", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "342 N.C. 192", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 795956, 796120, 796121, 796058, 796094 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/nc/342/0192-03", "/nc/342/0192-01", "/nc/342/0192-04", "/nc/342/0192-05", "/nc/342/0192-02" ] }, { "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, "pin_cites": [ { "page": "460" } ], "opinion_index": 0 }, { "cite": "92 N.C. App. 105", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526462 ], "year": 1988, "pin_cites": [ { "page": "107" } ], "opinion_index": 0, "case_paths": [ "/nc-app/92/0105-01" ] }, { "cite": "444 S.E.2d 449", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "450", "parenthetical": "quoting Milam v. Milam, 92 N.C. App. 105, 107, 373 S.E.2d 459, 460 (1988), disc. review denied, 324 N.C. 247, 377 S.E.2d 755 (1989)" } ], "opinion_index": 0 }, { "cite": "115 N.C. App. 387", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12130255 ], "year": 1994, "pin_cites": [ { "page": "389", "parenthetical": "quoting Milam v. Milam, 92 N.C. App. 105, 107, 373 S.E.2d 459, 460 (1988), disc. review denied, 324 N.C. 247, 377 S.E.2d 755 (1989)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/115/0387-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 50-20", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1999, "pin_cites": [ { "page": "(b)(l)", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "344 S.E.2d 100", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "104" } ], "opinion_index": 0 }, { "cite": "81 N.C. App. 159", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522057 ], "year": 1986, "pin_cites": [ { "page": "162" } ], "opinion_index": 0, "case_paths": [ "/nc-app/81/0159-01" ] }, { "cite": "338 S.E.2d 567", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "569-70" } ], "opinion_index": 0 }, { "cite": "78 N.C. App. 787", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524276 ], "year": 1986, "pin_cites": [ { "page": "790" } ], "opinion_index": 0, "case_paths": [ "/nc-app/78/0787-01" ] }, { "cite": "315 S.E.2d 772", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "775-76" } ], "opinion_index": 1 }, { "cite": "68 N.C. App. 548", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527635 ], "year": 1984, "pin_cites": [ { "page": "552" } ], "opinion_index": 1, "case_paths": [ "/nc-app/68/0548-01" ] }, { "cite": "331 S.E.2d 682", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "opinion_index": 1 }, { "cite": "314 N.C. 80", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4687900 ], "year": 1995, "opinion_index": 1, "case_paths": [ "/nc/314/0080-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 20", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1995, "pin_cites": [ { "page": "(c)" } ], "opinion_index": 1 }, { "cite": "N.C. Gen. Stat. \u00a7 50-20.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "(d)", "parenthetical": "\"The award shall include gains and losses on the prorated portion of benefit vested at the date of separation\"" } ], "opinion_index": 1 } ], "analysis": { "cardinality": 574, "char_count": 12071, "ocr_confidence": 0.756, "pagerank": { "raw": 1.2240919645422112e-07, "percentile": 0.6020991957446168 }, "sha256": "3500eb5d998cda8386da83611152cab855950926f6cf94d0998bb56f8823518b", "simhash": "1:df2adf6e7f2e9ff4", "word_count": 1918 }, "last_updated": "2023-07-14T21:06:37.161258+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge HUDSON concurs.", "Judge TYSON concurs in part and dissents in part." ], "parties": [ "DAVID CHARLES GAGNON, Plaintiff v. CECELIA ROTHWELL GAGNON, Defendant" ], "opinions": [ { "text": "TIMMONS-GOODSON, Judge.\nDavid Charles Gagnon (\u201cplaintiff\u201d) appeals from the equitable distribution order by the trial court granting plaintiff\u2019s former wife, Cecelia Rothwell Gagnon (\u201cdefendant\u201d), a twenty-six percent share of plaintiff\u2019s military retirement benefits. For the reasons stated herein, we affirm the trial court.\nThe facts pertinent to the instant appeal are as follows: On 18 November 1997, plaintiff filed a complaint in Carteret County District Court seeking a divorce from bed and board and equitable distribution of the marital assets. On 9 May 2000, the trial court entered a consent order distributing a portion of the marital assets. The consent ^.order reserved for further consideration two contested issues between the parties, one of which was the division of plaintiff\u2019s military retirement benefits. These outstanding issues subsequently came before the trial court, which made the following relevant factual findings:\n11. The parties were married to each other on October 5, 1975.\n12. The parties separated from each other on February 1, 1997.\n15. The Plaintiff testified concerning the dates and activity of his military career. He first enlisted in the United States Army on December 27, 1965 and served nine (9) years, nine (9) months and four (4) days until September 30,1975 when he was discharged at a rank of Captain.\n17. On July 19, 1976, the Plaintiff reenlisted in the United States Army at a rank of E-5 (Sergeant) and he served ten (10) years, three (3) months and twelve (12) days until he was discharged on October 31, 1986 at a rank of Sergeant 1st Class.\n18. In November of 1986, the Plaintiff began receiving his military retirement money on a monthly basis. This retirement was based on a rank of Sergeant and not as Captain because his earlier enlistment was less than ten (10) years.\n19. On September 30, 1996, the Plaintiff received an increase in his retirement pay which was an increase based on the fact that he had twenty (20) years of service plus ten (10) years of retirement. This increased pay raised the Plaintiffs retirement benefit up to a sum equaling a Captain\u2019s retirement pay.\nBased on the above-stated dates, the trial court further found that \u201cthe Defendant was married to the Plaintiff 51.25 percent of the time in which he was in the military service accruing his military retirement pay.\u201d The trial court therefore concluded, inter alia, that \u201cthe Defendant is entitled to a Twenty-Six Percent (26%) share of the Plaintiffs military retirement.\u201d The trial court thereafter entered an order awarding defendant a twenty-six percent share of plaintiffs military retirement benefits, from which order plaintiff now appeals.\nThe sole issue on appeal is whether the trial court erred by awarding defendant a twenty-six percent share of plaintiffs military retirement benefits. For the reasons stated herein, we affirm the trial court.\nPlaintiff argues that the trial court improperly awarded defendant a portion of the benefits he earned prior to entering the marriage. Plaintiff asserts that benefits attributable to his first period of military service were not built upon a foundation of marital effort by defendant. Thus, plaintiff argues, the 30 September 1996 retirement pay increase to the rank of Captain was a statutory increase due to the passage of years based on a period of time during which plaintiff was not married. Plaintiff acknowledges that these benefits vested during the marriage, but contends that it is unjust to allow defendant to share in this portion of plaintiffs retirement benefits, and that her share should be confined to benefits earned by plaintiff during his second period of active service in which the marriage overlapped.\nThe division of marital property is a matter within the sound discretion of the trial court. See Johnson v. Johnson, 78 N.C. App. 787, 790, 338 S.E.2d 567, 569-70 (1986). Accordingly, atrial court\u2019s ruling in an equitable distribution award is entitled to great deference upon appellate review, and will be disturbed only if it is \u201cso arbitrary that [it] could not have been the result of a reasoned decision.\u201d Lawing v. Lawing, 81 N.C. App. 159, 162, 344 S.E.2d 100, 104 (1986).\nSection 50-20 of the General Statutes of North Carolina governs the distribution of marital and divisible property upon divorce. \u201cMarital property includes all vested and nonvested pension, retirement, and other deferred compensation rights, and vested and nonvested military pensions eligible under the federal Uniformed Services Former Spouses\u2019 Protection Act.\u201d N.C. Gen. Stat. \u00a7 50-20(b)(l) (1999) (emphasis added). A pension \u201cvests\u201d when \u201c \u2018an employee has completed the minimum terms of employment necessary to be entitled to receive retirement pay at some point in the future.\u2019 \u201d George v. George, 115 N.C. App. 387, 389, 444 S.E.2d 449, 450 (1994) (quoting Milam v. Milam, 92 N.C. App. 105, 107, 373 S.E.2d 459, 460 (1988), disc. review denied, 324 N.C. 247, 377 S.E.2d 755 (1989)), cert. denied, 342 N.C. 192, 463 S.E.2d 236 (1995). In the case at bar, there is no dispute that plaintiff\u2019s retirement benefits vested on 30 September 1996, approximately five months before the parties separated. Moreover, according to section 50-20.1 of the North Carolina General Statutes, an award of retirement benefits is\ndetermined using the proportion of time the marriage existed (up to the date of separation of the parties), simultaneously with the employment which earned the vested and nonvested pension, retirement, or deferred compensation benefit, to the total amount of time of employment. The award shall be based on the vested and nonvested accrued benefit, as provided by the plan or fund, calculated as of the date of separation, and shall not include contributions, years of service, or compensation which may accrue after the date of separation. The award shall include gains and losses on the prorated portion of the benefit vested at the date of separation.\nN.C. Gen. Stat. \u00a7 50-20.1 (d) (1999). Such retirement benefits include \u201cvested and nonvested military pensions.\u201d N.C. Gen. Stat. \u00a7 50-20.1 (h) (1999). The valuation method prescribed by section 50-20.1(d), known as the \u201cfixed percentage method,\u201d can be expressed as a fraction, the numerator of which \u201cis the total period of time the marriage existed (up to the date of separation) simultaneously with the employment which earned the vested pension or retirement rights [,]\u201d with the denominator being \u201cthe total amount of time the employee spouse is employed in the job which earned the vested pension or retirement rights.\u201d Lewis v. Lewis, 83 N.C. App. 438, 442-43, 350 S.E.2d 587, 589 (1986); see also Seifert v. Seifert, 82 N.C. App. 329, 337, 346 S.E.2d 504, 508 (1986) (approving the fixed percentage method for distribution of military retirement benefits), affirmed, 319 N.C. 367, 354 S.E.2d 506 (1987).\nFollowing the statutory provisions, the trial court in the instant case correctly determined that plaintiff served in the Army for approximately ten years while he was married. Comparing this length of time to plaintiff\u2019s total number of years in the military (twenty), the trial court valued the percentage of time during the marriage in which plaintiff was accruing military retirement benefits as 51.25 percent. As plaintiffs benefits vested before the date of separation, the trial court did not err in including such benefits in the above-stated calculations. See Atkinson v. Chandler, 130 N.C. App. 561, 563-65, 504 S.E.2d 94, 95-97 (1998) (approving the trial court\u2019s utilization of the fixed percentage method for equitable distribution of plaintiff-wife\u2019s military retirement benefits that vested during the marriage, although the majority of the benefits were earned prior to the parties\u2019 marriage). We therefore hold that the trial court properly awarded defendant a twenty-six percent share of plaintiff\u2019s retirement benefits.\nDefendant also argues the trial court erred in considering plaintiff\u2019s post-separation payment of defendant\u2019s college expenses as a factor in the equitable distribution calculations. Defendant filed no notice of appeal concerning this alleged error, however, and has therefore failed to comply with Rule 3(a) of the Rules of Appellate Procedure. See N.C.R. App. P. 3(a) (2001) (requiring a party to file a notice of appeal with the clerk of the superior court). We therefore do not address defendant\u2019s assignment of error.\nWe hold that the trial court did not err in its equitable distribution award. We therefore affirm the trial court\u2019s order awarding defendant twenty-six percent of plaintiff\u2019s military retirement benefits.\nAffirmed.\nJudge HUDSON concurs.\nJudge TYSON concurs in part and dissents in part.\n. We acknowledge that the precisely equal division of 51.25 is 25.625 percent, rather than 26 percent as found by the trial court, but we conclude that it was within the trial court\u2019s discretion to mathematically \u201cround up\u201d the uneven figure of 25.625 percent to an even 26 percent.", "type": "majority", "author": "TIMMONS-GOODSON, Judge." }, { "text": "TYSON, Judge,\nconcurring in part and dissenting in part.\nI concur with the majority\u2019s opinion that defendant is entitled to a percentage of plaintiff\u2019s entire military pension. The parties were married at the time the pension vested. N.C. Gen. Stat. \u00a7 50-20.1(d) (1997) (\u201cThe award shall include gains and losses on the prorated portion of benefit vested at the date of separation\u201d). I do not agree with the majority\u2019s holding \u201cthat the trial court properly awarded defendant a twenty-six percent share of plaintiffs retirement benefits,\u201d nor do I concur with footnote 1 in the opinion giving the trial court authority to \u201cround-up\u201d numbers.\nThe trial court found as fact that plaintiff and defendant were married for 51.25 percent of the time plaintiff served in the military. The trial court\u2019s conclusion of law awarding defendant 26% is not supported by its finding of fact that defendant was married to plaintiff for 51.25% of his military service. G.S. \u00a7 20(c) requires \u201can equal distribution . . . unless the court determines an equal distribution is not equitable.\u201d N.C. Gen. Stat. \u00a7 20(c) (1995); Smith v. Smith, 314 N.C. 80, 331 S.E.2d 682 (1995). The trial court must make findings of fact to support an unequal distribution. Alexander v. Alexander, 68 N.C. App. 548, 552, 315 S.E.2d 772, 775-76 (1984). The trial court made none.\nI would remand to the trial court to amend and conform its order and judgment to its findings of fact. The majority cites no authority under G.S. \u00a7 50-20 granting the trial court discretion to round up fractional numbers. Defendant was entitled to a 25.625% distribution, not 26%. I respectfully dissent.", "type": "concurring-in-part-and-dissenting-in-part", "author": "TYSON, Judge," } ], "attorneys": [ "Andrew A. Lassiter for plaintiff appellant.", "James Q. Wallace, III, for defendant appellee." ], "corrections": "", "head_matter": "DAVID CHARLES GAGNON, Plaintiff v. CECELIA ROTHWELL GAGNON, Defendant\nNo. COA01-119\n(Filed 5 March 2002)\n1. Divorce\u2014 equitable distribution \u2014 military retirement benefits\nThe trial court did not abuse its discretion in an equitable distribution case by awarding defendant wife twenty-six percent of plaintiff husband\u2019s military retirement benefits, because: (1) plaintiff\u2019s retirement benefits vested approximately five months before the parties separated; and (2) the trial court correctly determined that plaintiff served in the army for approximately ten years while he was married and compared this length of time to plaintiffs total number of years in the military.\n2. Appeal and Error\u2014 preservation of issues \u2014 failure to file notice of appeal\nAlthough defendant wife contends the trial court erred in an equitable distribution case by considering plaintiff husband\u2019s postseparation payment of defendant\u2019s college expenses as a factor in the equitable distribution calculations, defendant failed to file a notice of appeal concerning this alleged error as required by N.C. R. App. P. 3(a).\nJudge Tyson concurring in part and dissenting in part.\nAppeal by plaintiff from order entered 24 October 2000 by Judge Karen Alexander in Carteret County District Court. Heard in the Court of Appeals 28 November 2001.\nAndrew A. Lassiter for plaintiff appellant.\nJames Q. Wallace, III, for defendant appellee." }, "file_name": "0194-01", "first_page_order": 228, "last_page_order": 234 }