{
  "id": 8957030,
  "name": "JEAN H. RICE (now JEAN MARIE), Plaintiff v. CHARLES E. RICE, III, Defendant",
  "name_abbreviation": "Rice v. Rice",
  "decision_date": "2003-08-05",
  "docket_number": "No. COA02-953",
  "first_page": "487",
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    "judges": [
      "Chief Judge EAGLES concurs.",
      "Judge LEVINSON concurs in part and dissents in part."
    ],
    "parties": [
      "JEAN H. RICE (now JEAN MARIE), Plaintiff v. CHARLES E. RICE, III, Defendant"
    ],
    "opinions": [
      {
        "text": "BRYANT, Judge.\nJean Marie (plaintiff), formerly Jean H. Rice, appeals from an order denying her request for a new evidentiary hearing and from amended equitable distribution and alimony judgments dated 19 October 2001.\nOn 5 July 1995, plaintiff brought an action against her husband Charles E. Rice, III (defendant) seeking a divorce and equitable distribution of the marital property. Plaintiff later amended her complaint to also request alimony. Plaintiff and defendant had married on 14 February 1982, separated on 16 April 1994, and were divorced on 27 October 1995. In an equitable distribution judgment filed 12 November 1998, the trial court concluded that the evidence and distributional factors found by the trial court supported an unequal division of the marital estate in defendant\u2019s favor. In a concurrent judgment, the trial court denied plaintiff\u2019s claim for alimony on the basis that she was not a dependent spouse. Plaintiff appealed from these judgments, and this Court reversed the November 12 equitable distribution and alimony judgments and remanded the case to the trial court for additional findings and conclusions on the valuation of defendant\u2019s law practice and the former marital residence, the issue of fault, and the parties\u2019 accustomed standard of living. See Rice v. Rice, 138 N.C. App. 710, 536 S.E.2d 662 (2000) (COA99-513) (unpublished) [hereinafter Rice i]. On remand, plaintiff requested a new evi-dentiary hearing, but the trial court denied the motion in its 19 October 2001 order. The trial court then entered an amended equitable distribution judgment, which included the following findings:\nDefendant\u2019s Law Practice\nA. . . . Defendant was a partner in a law practice known as Jackson & Rice from June 1992 through April 1993, and beginning in May 1993, . . . [defendant began practicing as a sole practitioner. As of the date of separation, . . . [defendant's solo law practice had been in existence less than one year.\nB. . . . Defendant was expected to receive a share of the fees from two cases . . . handled by the Jackson & Rice firm, but these fees had not been received by the Jackson & Rice firm before that firm dissolved. . . . Defendant ultimately received these \u201ccarryover\u201d fees in four installments, as follows:\n(1) The sum of $50,000.00 approximately five months prior to the date of separation ....\n(2) The sum of $100,000.00 on April 19, 1994, of which sum . . . [defendant transferred to . . . [p]laintiff the sum of $22,554.96 on May 2, 1994.\n(3) Two further payments totaling approximately $42,811.00 in June 1994, of which . . . [defendant transferred to . . . [p]laintiff the sum of $11,773.10 on June 24, 1994.\nC.The \u201ccarryover\u201d fees received after the date of separation, totaling $142,811.00, although arguably derived from \u201cmarital\u201d effort, were not acquired before the date of separation. Accordingly, these fees do not fall within the definition of marital property[] and are properly excluded from the marital estate. However, the [trial] [c]ourt will consider these post-separation funds as a \u201cdistributional factor,\u201d also to be included in . . . [defendant's separate estate.\nIn subsequently valuing defendant\u2019s law practice at $7,400.00, the trial court in essence adopted the valuation of plaintiff\u2019s expert but subtracted the $100,000.00 carryover fee received by defendant on 19 April 1994, which plaintiff\u2019s expert had included in his calculations, based on the trial court\u2019s conclusion that these funds were defendant\u2019s separate property.\nWith respect to the parties\u2019 Parmele Boulevard property, the trial court concluded it was a mixed asset, part marital and part separate, and found:\nB. The fair market value on [the] date of marriage was $90,000[.00].\nC. The property was encumbered by a mortgage at the date of marriage, with a principal balance due of $28,125[.00]. The [trial] [c]ourt accepts the parties\u2019 classification of this mortgage as a marital debt.\nD. The net value on the date of marriage was $61,875[.00].\nE. The fair market value on the date of separation was $185,000[.00].\nF. On the date of separation, the principal balance of the mortgage was $16,443[.00] . . . [and] was paid off shortly after the date of separation with \u201ccarryover\u201d fees from Jackson & Rice .... This use of... [defendant's separate funds to reduce marital debt should be treated as a distributional factor ....\nG. The net value on the date of separation was $168,557[.00],\nH. Between the date of marriage and the date of separation, the net value of this property increased by $106,682[.00 ]. . . .\nI. Between the date of marriage and the date of separation, the principal balance of the mortgage . . . was actively reduced by $11,682[.00] through the use of marital funds. This portion of the active increase in net value should be classified as marital property.\n(1) . . . Plaintiff has apparently contended that a portion of the funds used to reduce the principal balance of the mortgage during the marriage [] were her separate funds from an inheritance. However, mortgage payments during the marriage were paid from the parties\u2019 joint account, into which . . . [p]laintiff occasionally deposited and commingled her separate, inherited funds. . . . Plaintiff has failed to trace any such separate funds through the joint account as having been specifically \u201capplied\u201d to payment of the mortgage .... Accordingly, . . . [p]laintiff has failed to establish by a preponderance of the evidence the \u201csource of funds\u201d that she now claims to have been her separate property.\nJ. During the marriage, the parties spent approximately $30,000[.00] for improvements to the property, of which approximately $12,000[.00] (or 40%) was marital and $18,000.00 (or 60%) was the separate property of . . . [plaintiff. These improvements actively increased the net value of the property by $11,500[.00] as of the date of separation. Accordingly, $4,600[.00] of this portion of the active increase in net value should be classified as marital. . . and $6,900[.00] ... as [plaintiffs] separate property ....\nK. The remaining $83,500[.00] of the total increase in net value as of the date of separation appears to have been the result of passive appreciation .... Although there is no exact way to divide this passive appreciation between the marital estate and the separate estate of.. . [p]laintiff, the [trial] [c]ourt will attempt to provide a proportionate return on the \u201cinvestment\u201d of each estate.\nL. During the marriage, the \u201cprincipal\u201d (active) contribution of . . . [p]laintiff\u2019s estate to the net value of this property totaled $68,775[.00] (i.e., $61,875[.00] + $6,900[.00]), and the \u201cprincipal\u201d (active) contribution of the marital estate was $16,282[.00] (i.e., $11,682[.00] + $4,600[.00]). The combined \u201cprincipal\u201d (active) contribution of the marital and separate estates during the marriage totaled $85,057[.00]. The proportion of this combined total that was marital was 19.14% and the proportion . . . that was separate was 80.86%.\nM. Applying the percentages derived from the preceding sub-paragraph to the total passive appreciation during the marriage (i.e., $83,500[.00]), the marital share of the passive appreciation is therefore $15,982[.00], and . . . [p]laintiffs separate share . . . is . . . $67,518[.00].\nO. Adding the active and passive shares of the total increase in net value between date of marriage and date of separation results in a marital share of $32,264[.00] (i.e., $16,282[.00] + $15,982[.00]) and in a separate share for . . . [p]laintiff of $136,293[.00] (i.e., $68,775[.00] + $67,518[.00]).\nIn the amended alimony judgment dated 19 October 2001 and written from the perspective of the date of trial, the trial court considered the parties\u2019 respective incomes, expenses, earning capacities, and estates. With respect to plaintiffs earning capacity, the trial court also considered the potential rental income plaintiff could have earned from the Parmele Boulevard residence because plaintiff was living in Mobile, Alabama at the time of the hearing. Based on its findings, the trial court ultimately concluded that plaintiff was not a dependent spouse. On the issue of fault, the trial court found as follows:\nDefendant stipulated that he committed adultery under the statutory definition after the parties separated, and the [trial] [c]ourt finds that he committed adultery within the meaning of N.C. Gen. Stat. \u00a7 50-16.2(1). This \u201cfault\u201d on the part of . . . [defendant does not appear to have had any effect on the marital economy or the accustomed standard of living of the parties prior to the date of separation.\nAccordingly, the trial court denied plaintiffs request for alimony and attorney\u2019s fees.\nThe issues are whether the trial court: erred in (I) classifying the carryover fees received by defendant after the date of separation as his separate property; (II) valuing defendant\u2019s law practice; (III) calculating the marital estate\u2019s portion of the passive appreciation in the net value of the Parmele Boulevard property; and abused its discretion in (IV) finding certain distributional factors; (V) awarding defendant his entire pension even though it was part marital property; and (VI) denying plaintiff alimony.\nEquitable Distribution\nI\nIn her first assignment of error, plaintiff argues that the trial court erred in classifying the carryover fees, received by defendant after the date of separation, as his separate property because defendant had a vested property interest in the carryover fees prior to the date of separation.\nAs an initial matter, we note that due to the timing of this action, our analysis is based on the equitable distribution law as it existed prior to 1 October 1995. In determining the equitable distribution of the parties\u2019 property under the prior law, the trial court must first classify property as either marital or separate. Godley v. Godley, 110 N.C. App. 99, 108, 429 S.E.2d 382, 388 (1993); see also N.C.G.S. \u00a7 50-20(a) (2001) (the current version of the statute provides for divisible property as a third classification). \u201c[T]he party claiming the property to be marital must meet the burden of showing by a preponderance of the evidence that the property was acquired by either spouse or both spouses during the marriage, before the date of separation, and is presently owned.\u201d Godley, 110 N.C. App. at 108, 429 S.E.2d at 388; N.C.G.S. \u00a7 50-20(b)(1) (1995). The dispositive factor as to when property was acquired is whether the right to receive the property vested prior to the date of separation. Godley, 110 N.C. App. at 115, 429 S.E.2d at 392; N.C.G.S. \u00a7 50-20(b)(1)-(2) (1995) (\u201c[m]arital property includes all vested . . . deferred compensation rights\u201d whereas \u201c[t]he expectation of nonvested . . . deferred compensation rights shall be considered separate property\u201d); compare N.C.G.S. \u00a7 50-20(b)(1) (2001) (the current statutory scheme recognizes both vested and nonvested deferred compensation rights as marital property). Vesting occurs when \u201cthe right to the enjoyment of [an interest], either present or future, is not subject to the happening of a condition precedent.\u201d Black\u2019s Law Dictionary 816 (7th ed. 1999). Our case law has further defined a vested interest as \u201ca right which is otherwise secured, established, and immune from further legal metamorphosis,\u201d Gardner v. Gardner, 300 N.C. 715, 718-19, 268 S.E.2d 468, 471 (1980); in other words, it is a right that cannot be canceled, Fountain v. Fountain, 148 N.C. App. 329, 337 n.11, 559 S.E.2d 25, 32 n.11 (2002) (holding that \u201cthe stock options were vested . . . because the right to exercise the options could not be canceled\u201d).\nIn this case, the trial court concluded that although the $142,811.00 in carryover fees received by defendant were derived from marital efforts, they were received after the date of separation and therefore represent his separate property. The trial testimony pertinent to this issue, however, reveals that a settlement offer was conveyed to the Jackson & Rice law firm and subsequently accepted by the firm on behalf of its clients, and a settlement check was thereafter received by the firm and deposited into the firm\u2019s account prior to the date of separation. The firm being in receipt of the settlement check, the condition precedent for defendant\u2019s entitlement to a share of those fees had thus been met. See Black\u2019s Law Dictionary 816. This is notwithstanding the condition subsequent created by the dissolution of the law partnership and the settlement of the firm\u2019s affairs. Accordingly, defendant\u2019s right, as partner of the firm, to a share in the fees was secured and established prior to the date of separation and could not be canceled. See Gardner, 300 N.C. at 718-19, 268 S.E.2d at 471. This determination is consistent with our case law holding that \u201cfunds received after the date of separation may appropriately be classified as marital property under certain circumstances when the right to receive those funds is acquired during the marriage and before separation.\u201d Smith v. Smith, 111 N.C. App. 460, 483-84, 433 S.E.2d 196, 210 (1993) (finding time stock sold as opposed to post-date-of-separation time when check representing the proceeds of the stock sale was received determinative in concluding that proceeds were marital property), rev\u2019d in part on other grounds, 336 N.C. 575, 444 S.E.2d 420 (1994); see Johnson v. Johnson, 317 N.C. 437, 346 S.E.2d 430 (1986) (settlement received after the date of separation upon a spouse\u2019s claim for personal injuries sustained dining the marriage is marital property if it represents compensation for economic loss); Talent v. Talent, 76 N.C. App. 545, 554-55, 334 S.E.2d 256, 262 (1985) (funds collected by one spouse after the date of separation on a loan made during marriage with marital funds are marital property); see also Godley, 110 N.C. App. at 108, 115, 429 S.E.2d at 387-88, 391-92 (finding no vested interest where the defendant had a contractual right to receive commissions but no commissions had become due on the date of separation because several hundred acres of the land from the sale of which the defendant would be paid remained to be sold). Thus, under the statutory provisions in effect at the time this action was filed, the trial court erred in classifying the $142,811.00 as defendant\u2019s separate property.\nIn a related issue plaintiff contends that since the trial court erred in classifying the carryover fees received from the Jackson & Rice firm after the date of separation, it also erred in granting only defendant credit and assigning to him a distributional factor justifying an unequal division of the marital property for paying off marital debt with these funds. To the extent this was done by the trial court, it must be reversed, and the issue is remanded for treatment in accordance with this opinion.\nII\nPlaintiff further contends the trial court erred in valuing defendant\u2019s law practice at $7,400.00. In her brief to this Court, plaintiff states that because the $100,000.00 carryover fee received by defendant on 19 April 1994 and included by plaintiff\u2019s expert in the valuation of the practice was marital property, the trial court\u2019s assessed value would only be correct if it had included the fee \u201cas a personal marital asset outside the practice.\u201d But since the trial court failed to do so, plaintiff asserts that the amount, due to its marital nature, should have been included in the valuation of the law practice. As we determined that the trial court did indeed err by failing to classify the carryover fees as marital property, plaintiff\u2019s assertions are correct and must be addressed on remand.\nIII\nIn her next assignment of error, plaintiff appears to argue that the trial court erred in distributing to the marital estate a portion of the passive appreciation in the net value of the Parmele Boulevard property based on reductions in the mortgage principal and improvements to the property paid for with marital funds. Plaintiff asserts that the marital estate\u2019s share of the passive increase in the property\u2019s net value may only be based on reductions in the principal mortgage balance. Plaintiff, however, cites no authority supporting this proposition.\n\u201cIncreases in value to separate property attributable to the financial, managerial, and other contributions of the marital estate are \u2018acquired\u2019 by the marital estate.\u201d Ciobanu v. Ciobanu, 104 N.C. App. 461, 465, 409 S.E.2d 749, 751 (1991). Furthermore, under the source of funds theory:\n[W]hen both the marital and separate estates contribute assets towards the acquisition [or improvement] of property, each estate is entitled to an interest in the property in the ratio its contribution bears to the total investment in the property. Thus, both the separate and marital estates receive a proportionate and fair return on [their] investment.\nWade v. Wade, 72 N.C. App. 372, 382, 325 S.E.2d 260, 269 (1985); see Godley, 110 N.C. App. at 109, 429 S.E.2d at 389; see also supra (the trial court\u2019s extensive findings with respect to the classification and valuation of the marital and separate interests in the Parmele Boulevard property). Accordingly, there is no difference between financial contributions to reduce the mortgage principal and those to improve the property itself. Because both types of active contributions entitle the marital estate to a proportionate return on its investment, the trial court properly applied the source of funds rule as required by this Court in Rice I and plaintiff\u2019s assignment of error is overruled.\nIV\nPlaintiff also assigns error to the following distributional factors found by the trial court:\nA. . . . Plaintiff is 51 years of age and appears to be in good health, such that she is capable of earning a sufficient amount of income to support herself.\nN. After the Deed of Trust was paid off in June of 1994, [p]laintiff had no Deed of Trust expense. The Deed of Trust payments were $450.00 per month. She has enjoyed substantially free housing for the four years from the payoff of the Deed of Trust . . . until the hearing in June of 1998.\nO. Plaintiff currently does not live in the residence and could at least rent the property for several thousand dollars during the summer vacation season. . . .\nQ. . . . Defendant assisted with the upbringing of [p]laintiff\u2019s daughter by helping to pay for her private school tuition, college expenses, and trips.\nAs to the first distributional factor, plaintiff asserts that it ignores this Court\u2019s recognition in Rice I that plaintiff suffered from arthritis and hypertension. The trial court, however, only made a qualified statement about plaintiffs health, finding that the state of her health was such that she was capable of earning a sufficient amount of income to support herself. As plaintiff simply attacks an isolated phrase and makes no assertion in her brief that her arthritis and hypertension affected her work ability, we find no error with respect to this factor.\nPlaintiff next contends that factor Q was inappropriate because N.C. Gen. Stat. \u00a7 50-20(f) prohibits consideration during an equitable distribution proceeding of the \u201csupport of the children of both parties.\u201d N.C.G.S. \u00a7 50-20(f) (2001) (same as 1995 version). We disagree. Defendant was not the father of plaintiffs daughter and had no legal obligation to care for the daughter. As such, the distributional factor found by the trial court did not address defendant\u2019s child support obligations but instead recognized his voluntary assumption of responsibilities and was therefore properly considered under the catch-all provision of N.C. Gen. Stat. \u00a7 50-20(c)(12) (2001) (same as 1995 version).\nPlaintiff also argues that factors N and O were improper because the trial court considered her potential income and liabilities for the four-year period between the date of separation and the hearing. N.C. Gen. Stat. \u00a7 50-20(c)(1) requires the trial court to consider \u201c[t]he income, property, and liabilities of each party at the time the division of property is to become effective.\u201d N.C.G.S. \u00a7 50-20(c)(1) (2001) (consistent with 1995 version). This Court has held that \u201c[t]he factors listed under subsection (c) indicate that the legislature intended to grant the trial court the authority to consider the future prospects of the parties, as well as their status at the time of the hearing, in determining whether an equal division of marital assets would be equitable.\u201d Harris v. Harris, 84 N.C. App. 353, 359, 352 S.E.2d 869, 873 (1987); see also Dolan v. Dolan, 148 N.C. App. 256, 259, 558 S.E.2d 218, 220 (post-separation rental income can be a distributional factor), aff\u2019d, 355 N.C. 484, 562 S.E.2d 422 (2002) (per curiam); Chandler v. Chandler, 108 N.C. App. 66, 69, 422 S.E.2d 587, 590 (1992). Accordingly, consideration of these post-separation factors is proper; nevertheless, for the reasons stated below in our discussion of the alimony judgment, we conclude it was error for the trial court to consider plaintiffs potential rental income in this case.\nFinally, plaintiff asserts the trial court abused its discretion in failing to consider certain distributional factors for which the parties offered evidence. See Haywood v. Haywood, 106 N.C. App. 91, 100, 415 S.E.2d 565, 571 (1992) (\u201c[w]hen a party introduces evidence of a distributional factor under N.C.G.S. \u00a7 50-20(c), the trial court must consider the factor and make a finding of fact with regard to it\u201d), rev\u2019d in part on other grounds, 333 N.C. 342, 425 S.E.2d 696 (1993). Plaintiff, however, failed to include any page number references to the transcript or exhibits in her brief to this Court, thereby preventing meaningful review of the voluminous record on appeal. See N.C.R. App. P. 28(b)(5)-(6) (appellate briefs shall contain \u201call material facts . . . supported by references to pages in the transcript to the proceedings\u201d); Naddeo v. Allstate Ins. Co., 139 N.C. App. 311, 316, 533 S.E.2d 501, 504 (2000) (\u201csuch references [are] invaluable in directing the [C]ourt\u2019s attention to the pertinent portions of the record\u201d). Thus, this assignment of error is overruled.\nV\nIn addition, plaintiff assigns error to the trial court\u2019s distribution to defendant of his entire pension even though a portion of the pension was marital property. In support of her argument, plaintiff relies on statutory provisions that were yet to be enacted at the time this action was filed. The statute applicable to this case provides for a distributive award of a pension:\na. As a lump sum by agreement;\nb. Over a period of time in fixed amounts by agreement;\nc. As a prorated portion of the benefits made to the designated recipient at the time the party against whom the award is made actually begins to receive the benefits; or\nd. By awarding a larger portion of other assets to the party not receiving the benefits, and a smaller share of other assets to the party entitled to receive the benefits.\nN.C.G.S. \u00a7 50-20pb)(3) (1995). Accordingly, the trial court had various distributive choices that did not restrict it to a proportionally equal division of the pension itself as advocated by plaintiff. Thus, this assignment of error is without merit.\nAlimony\nVI\nIn Rice I, this Court determined that N.C. Gen. Stat. \u00a7 50-16.1, et seq., applicable to actions filed before 1 October 1995, applies to the parties\u2019 alimony action. Rice I, 138 N.C. App. 710, 536 S.E.2d 662. According to section 50-16.1(3), a dependent spouse \u201cmeans a spouse, whether husband or wife, who is actually substantially dependent upon the other spouse for his or her maintenance and support or is substantially in need of maintenance and support from the other spouse.\u201d N.C.G.S. \u00a7 50-16.1(3) (1995) (repealed). Conversely, a \u201c \u2018[supporting spouse\u2019 means a spouse . . . upon whom the other spouse is actually substantially dependent or from whom such other spouse is substantially in need of maintenance and support.\u201d N.C.G.S. \u00a7 50-16.1(4) (1995) (repealed).\nIf the court determines that one spouse is not actually dependent on the other for such support, the court must then determine if one spouse is \u201csubstantially in need of maintenance and support\u201d from the other, i.e., whether one spouse would be unable to maintain his or her accustomed standard of living, established prior to separation, without financial contribution from the other.\nTalent, 76 N.C. App. at 548, 334 S.E.2d at 258-59 (citations omitted). In doing so, the trial court must make findings as to the following:\n(1) the standard of living, socially and economically, to which the parties as a family unit became accustomed during the several years prior to their separation; (2) the present earnings, prospective earning capacity, and any other condition, such as health, of each spouse at the time of the hearing; (3) whether the spouse seeking alimony has a demonstrated need for financial contribution from the other spouse in order to maintain the parties\u2019 accustomed standard of living, taking into consideration the spouse\u2019s reasonable expenses in light of that standard of living; and (4) the financial worth or \u201cestate\u201d of both spouses. The court must also consider fault and other facts of the particular case such as the length of the marriage and the contribution made by each spouse to the financial status of the family over the years.\nId. (citation omitted). Once a determination of dependency has been made, N.C. Gen. Stat. \u00a7 50-16.2 provides that \u201c[a] dependent spouse is entitled to an order for alimony when ... [t]he supporting spouse has committed adultery.\u201d N.C.G.S. \u00a7 50-16.2(1) (1995) (repealed). This statute does not include any requirement that the adultery have an economic impact.\nIn Rice I, this Court reversed the alimony judgment and remanded for findings on the parties\u2019 accustomed standard of living, the issue of fault based on defendant\u2019s admitted adultery, and plaintiff\u2019s health. In reviewing the amended alimony judgment before us, we note that the trial court once again failed to make any findings with respect to the accustomed standard of living during the marriage. Instead, the trial court simply made findings regarding the separate \u201cestates\u201d of the parties during the marriage. As the point in evaluating the parties\u2019 accustomed standard of living is to consider the pooling of resources that marriage allows, the trial court\u2019s findings are insufficient. See Talent, 76 N.C. App. at 548, 334 S.E.2d at 259 (\u201cthe court must determine and consider . . . the standard of living, socially and economically, to which the parties as a family unit became accustomed during the several years prior to their separation\u201d) (emphasis added); see Williams v. Williams, 299 N.C. 174, 181, 261 S.E.2d 849, 855 (1980) (term \u201ccontemplates the economic standard established by the marital partnership for the family unit during the years the marital contract was intact\u201d).\nIn addition, it was improper for the trial court to consider plaintiff\u2019s potential rental income of the Parmele Boulevard residence. As this Court found in Rice T.\nIn March of 1998, three months before the trial, plaintiff accepted a job with Adams Mark Motel in Mobile, Alabama for a gross annual income of $42,000 [.00]. At the time of the trial, plaintiff was in the probationary period with Adams Mark Motel and was not certain whether she would remain in Mobile.\nRice I, 138 N.C. App. 710, 536 S.E.2d 662. In light of the uncertainty as to plaintiff\u2019s continued employment and residence, it was premature for the trial court to expect plaintiff to supplement her income with the rental of her North Carolina residence.\nFinally, plaintiff contends the trial court abused its discretion in its treatment of the issue of fault for purposes of alimony. In the amended alimony judgment, the trial court concluded that defendant\u2019s adultery, found as fact by the trial court, did \u201cnot appear to have had any effect on the marital economy or the accustomed standard of living of the parties prior to the date of separation\u201d and should therefore be disregarded. Pursuant to Rice I, the trial court was directed to consider defendant\u2019s adultery for purposes of analyzing (a) the fault element listed in Talent as one of the factors to consider in determining plaintiffs status as a dependent spouse and (b), if plaintiff was found to be dependent, whether alimony must be awarded pursuant to section 50-16.2(1). Economic impact of marital fault would have an effect on the determination of dependency; however, it bears no weight on the second prong of the analysis as provided by section 50-16.2(1). In this case, it is clear that the trial court only considered fault for purposes of dependency, and because it concluded that plaintiff was not a dependent spouse, the trial court did not need to reach the issue of fault under section 50-16.2(1) addressed in Rice' I. Accordingly, we find no abuse of discretion as to this issue.\nBecause of the errors found with respect to the amended alimony judgment, the alimony portion of this case is also remanded, with instructions to enter findings and conclusions consistent with this opinion. Furthermore, in light of the need to remand this case, we do not address plaintiffs remaining issues with respect to the alimony judgment.\nReversed and remanded.\nChief Judge EAGLES concurs.\nJudge LEVINSON concurs in part and dissents in part.",
        "type": "majority",
        "author": "BRYANT, Judge."
      },
      {
        "text": "LEVINSON, Judge,\nconcurring in part and dissenting in part.\nI concur with the majority opinion in all respects except the following.\nFirst, I disagree with the majority\u2019s conclusion that the trial court erred by considering \u201cplaintiff\u2019s potential rental income\u201d as a distributional factor. At issue is the trial court\u2019s distributional factor O, which provides in its entirety:\nPlaintiff currently does not live in the residence and could at least rent the property for several thousand dollars during the summer seasons. The Plaintiff failed to explain or justify to the satisfaction of the [c]ourt her failure to maximize the income from this property (which is especially puzzling in light of the Plaintiff\u2019s asserted \u201cneed\u201d for alimony from the Defendant).\nThe majority reasons that, because plaintiff accepted an out-of-state job three months before the trial, \u201cit was premature for the trial court to expect plaintiff to supplement her income with the rental of her North Carolina residence.\u201d I disagree.\nThe trial court is afforded wide discretion in entering equitable distribution orders, enabling the court to fashion its orders with regard to the specific facts and circumstances of a given case. Wall v. Wall, 140 N.C. App. 303, 307, 536 S.E.2d 647, 650 (2000). Further, the trial judge is in a better position than this Court to evaluate witnesses\u2019 credibility and the evidence. In the present case, the eviden-tiary facts underlying factor O are undisputed \u2014 that the plaintiff was in the probationary period of a new job, was living out of state, and had not rented her house for the summer.\nMoreover, the trial court is charged with the exercise of discretion to determine whether 0, standing alone or in combination with other factors, supports an unequal division of the marital estate. The majority acknowledges the trial court\u2019s obligation under G.S. \u00a7 50-20(c)(l) to consider \u201c[t]he income, property, and liabilities of each party at the time the division of property is to become effective[,]\u201d and quotes Harris v. Harris, 84 N.C. App. 353, 359, 352 S.E.2d 869, 873 (1987), for the proposition that \u201cthe legislature intended to grant the trial court the authority to consider the future prospects of the parties, as well as their status at the time of the hearing, in determining whether an equal division of marital assets would be equitable.\u201d That being so, the majority\u2019s conclusion that the trial court abused its discretion is puzzling. In conducting our review, this Court may disagree with a trial court\u2019s determination of whether the evidence should support an unequal division of the marital estate. However, this does not necessarily manifest error on the part of the trial judge who sits in the best position to make such a decision. \u201c[T]he 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.\u201d Lawing v. Lawing, 81 N.C. App. 159, 162, 344 S.E.2d 100, 104 (1986). In the present case, I conclude the trial court did not abuse its discretion by considering plaintiff\u2019s decision not to rent her property when she could have done so. Accordingly, I would hold that plaintiff failed to demonstrate error with respect to factor O.\nFor similar reasons, I disagree with the majority\u2019s conclusion that it was an abuse of discretion for the trial court to consider \u201cplaintiff\u2019s potential rental income of the Parmele Boulevard residence\u201d in its determination that plaintiff was not a dependent spouse. The majority concludes that because of the \u201cuncertainty as to plaintiff\u2019s continued employment and residence, it was premature ... to expect plaintiff to supplement her income with the rental of her North Carolina residence.\u201d However, our trial courts are necessarily vested with wide discretion in alimony determinations and frequently assign varying degrees of significance to evidence that does not necessarily lend itself to one interpretation over another. In the present case, the court\u2019s evaluation of the potential rental income, like its evaluation of many other facts and circumstances, is clearly permissible. Again, the relevant facts regarding plaintiff\u2019s failure to rent out her North Carolina home were not disputed. I would hold that the trial court properly considered plaintiff\u2019s potential rental income in making its determination of whether plaintiff was a dependent spouse.\nWith respect to the potential rental income issue for the equitable distribution and alimony determinations, the majority has erroneously replaced its own judgment for that of the trial court.",
        "type": "concurring-in-part-and-dissenting-in-part",
        "author": "LEVINSON, Judge,"
      }
    ],
    "attorneys": [
      "Wyrick Robbins Yates & Ponton LLP, by Charles W. Clanton and Heidi C. Bloom, for plaintiff-appellant.",
      "Cheshire, Parker, Schneider, Bryan & Vitale, by Jonathan McGirt, for defendant-appellee."
    ],
    "corrections": "",
    "head_matter": "JEAN H. RICE (now JEAN MARIE), Plaintiff v. CHARLES E. RICE, III, Defendant\nNo. COA02-953\n(Filed 5 August 2003)\n1. Divorce\u2014 equitable distribution \u2014 marital property \u2014 fees received by plaintiffs firm\nThe trial court erred (under then applicable law) in an equitable distribution action by classifying as separate property fees that were received by defendant\u2019s law firm before the separation but distributed to defendant after the separation. Defendant\u2019s right to share in the funds as a partner of the firm was secured and established prior to the date of separation and could not be canceled. Furthermore, the court\u2019s treatment of a marital debt paid with these funds was remanded.\n2. Divorce\u2014 equitable distribution \u2014 valuation of law practice \u2014 undistributed fees\nThe trial court erred in an equitable distribution action in its valuation of defendant\u2019s law practice by classifying fees received by the defendant\u2019s law firm before the separation and distributed to defendant after the separation as separate property and not including them in the value of the practice.\n3. Divorce\u2014 equitable distribution \u2014 value of real property\u2014 reduction of mortgage \u2014 improvements\nThe trial court properly applied the source of funds rule in an equitable distribution action when distributing to the marital estate a portion of passive appreciation in real property based on reductions in the mortgage principal and improvements paid for with marital funds. There is no difference between financial contributions to reduce the mortgage and those to improve the property.\n4. Divorce\u2014 equitable distribution \u2014 distributional factor\u2014 health\nThe trial court did not err in an equitable distribution action by finding the distributional factor that plaintiff was in good health. Plaintiff\u2019s assertion that the trial court ignored a previous judicial recognition that plaintiff suffered from arthritis and hypertension simply attacked an isolated phrase. Plaintiff made no assertion that her arthritis and hypertension affected her work ability.\n5. Divorce\u2014 equitable distribution \u2014 distributional factors\u2014 assistance in bringing up spouse\u2019s child\nThe trial court did not err in an equitable distribution action by finding the distributional factor that defendant assisted with bringing up plaintiff\u2019s daughter by helping to pay for trips, private school tuition, and college expenses. Although support of the parties\u2019 children may not be considered, defendant was not the father of plaintiff\u2019s daughter and had no legal obligation to care for her. The distributional factor found by the court recognized defendant\u2019s voluntary assumption of responsibilities and was properly considered.\n6. Divorce\u2014 equitable distribution \u2014 potential income and liabilities\nAlthough it is proper in an equitable distribution action to consider the potential income and liabilities of the parties, it was improper for the trial court to consider plaintiff\u2019s potential rental income in this case due to findings about alimony issues.\n7. Appeal and Error\u2014 failure to include record page references \u2014 issue not considered\nNo error was found in an equitable distribution action where plaintiff asserted that the court failed to consider certain distributional factors, but did not include page references to the transcript or exhibits.\n8. Divorce\u2014 equitable distribution \u2014 pension\u2014distribution to one party\nThe trial court did not err in an equitable distribution action by distributing to defendant his entire pension even though a portion of it was marital property. Under the statute applicable to the case, N.C.G.S. \u00a7 50-20(b)(3) (1995), the court had a variety of distributive choices that did not restrict it to a proportionally equal division of the pension.\n9. Divorce\u2014 alimony \u2014 findings\u2014standard of living \u2014 potential rental income\nThe trial court\u2019s findings on remand were insufficient in a divorce action with alimony issues where the action had been remanded for findings on the parties\u2019 accustomed standard of living (among other things) and the court made findings regarding the separate \u201cestates\u201d of the parties during the marriage. Additionally, it was improper for the court to consider plaintiff\u2019s potential rental income of her North Carolina residence because her new, out-of-state job involved a probationary period and uncertainty as to her continued employment and residence.\n10.Divorce\u2014 alimony \u2014 fault\u2014dependency\nThe trial court did not abuse its discretion in a divorce action in its treatment of fault from defendant\u2019s adultery for purposes of alimony. The court found that fault had no effect on the marital economy or the parties\u2019 standard of living and should be disregarded. It is clear that the court considered fault only for dependency, and, having concluding that plaintiff was not a dependent spouse, did not need to reach the issue of fault under N.C.G.S. \u00a7 50-16.2(1).\nJudge LEVINSON concuring in part and dissenting in part.\nAppeal by plaintiff from order dated 19 October 2001 and from two separate, amended judgments dated 19 October 2001 by Judge Joseph M. Buckner in New Hanover County District Court. Heard in the Court of Appeals 19 May 2003.\nWyrick Robbins Yates & Ponton LLP, by Charles W. Clanton and Heidi C. Bloom, for plaintiff-appellant.\nCheshire, Parker, Schneider, Bryan & Vitale, by Jonathan McGirt, for defendant-appellee."
  },
  "file_name": "0487-01",
  "first_page_order": 517,
  "last_page_order": 534
}