{ "id": 4165266, "name": "BEVERLY McNEELY, Plaintiff v. BOYD R. McNEELY, Defendant", "name_abbreviation": "McNeely v. McNeely", "decision_date": "2009-03-17", "docket_number": "No. COA08-917", "first_page": "705", "last_page": "713", "citations": [ { "type": "official", "cite": "195 N.C. App. 705" } ], "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": "623 S.E.2d 800", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634748 ], "year": 2006, "pin_cites": [ { "page": "805" } ], "opinion_index": 0, "case_paths": [ "/se2d/623/0800-01" ] }, { "cite": "487 S.E.2d 542", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "346 N.C. 277", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 139630, 139665, 139379, 139323, 139518 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/nc/346/0277-05", "/nc/346/0277-01", "/nc/346/0277-02", "/nc/346/0277-03", "/nc/346/0277-04" ] }, { "cite": "479 S.E.2d 240", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "242" } ], "opinion_index": 0 }, { "cite": "125 N.C. 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Stat. \u00a7 50-20", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 12, "pin_cites": [ { "page": "(a)" }, { "page": "(b)(l)" }, { "page": "(b)" }, { "page": "(b)" }, { "page": "(b)" }, { "page": "(b)(4)" }, { "page": "(b)(4)(d)" }, { "page": "(c)" }, { "page": "(c)" }, { "page": "(c)(12)" } ], "opinion_index": 0 }, { "cite": "324 S.E.2d 829", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "833" } ], "opinion_index": 0 }, { "cite": "312 N.C. 770", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4755941 ], "year": 1985, "pin_cites": [ { "page": "777" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0770-01" ] }, { "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": "2008 WL 304922", "category": "reporters:specialty_west", "reporter": "WL", "weight": 6, "year": 2008, "pin_cites": [ { "parenthetical": "No. COA07-483" }, { "parenthetical": "citations omitted" }, { "parenthetical": "citations omitted" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 688, "char_count": 18292, "ocr_confidence": 0.726, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.13604171517335567 }, "sha256": "58aaa5f603586a7a6b0d1e35168cb3a6d34da62f5cd8268ed1c348cd0bff1d3e", "simhash": "1:89eb501a7e8f65f4", "word_count": 2965 }, "last_updated": "2023-07-14T21:32:21.117771+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges McGEE and JACKSON concur." ], "parties": [ "BEVERLY McNEELY, Plaintiff v. BOYD R. McNEELY, Defendant" ], "opinions": [ { "text": "HUNTER, JR., Robert N., Judge.\nDefendant Boyd R. McNeely appeals a modified judgment of equitable distribution entered 28 March 2008. For reasons discussed herein, we affirm.\nI. Background\nPlaintiff Beverly McNeely (\u201cwife\u201d) and defendant Boyd R. McNeely (\u201chusband\u201d) were married 20 October 2001, separated 7 June 2003, and have since divorced. This appeal primarily involves characterization of a post-separation mortgage payment made by husband on an 8.627-acre tract of jointly owned land located on Country Club Road in Brevard, North Carolina (\u201cthe Country Club property\u201d). Both parties purchased the Country Club property as tenants by entireties for $76,900.00 in April 2003, approximately two months prior to their separation. Simultaneously with the purchase, the parties obtained a mortgage securing the joint obligation on the Country Club property. In August of 2005, more than two years after the parties\u2019 separation, husband sold his separately owned trailer park property for $203,000.00 and used $75,644.00 of the proceeds to pay off the mortgage on the Country Club property.\nA. Initial Hearing\nThis matter was initially heard in Transylvania County District Court on 27-28 April 2006. The trial court entered its original judgment of equitable distribution (\u201coriginal judgment\u201d) on 25 August 2006. The original judgment found that husband had made a payment on the mortgage after the parties\u2019 separation. However, the original judgment did not contain any sufficiently specific findings regarding the amount husband had paid or the mortgage\u2019s impact on the date of separation valuation. Despite this marital indebtedness, the trial court found the Country Club property\u2019s net value on the date of separation to be $76,900.00. The trial court found that a distribution in the proportion of 60.43% of the marital estate to wife and 39.57% to husband was equitable, and divided the assets accordingly.\nB. First Appeal\nHusband\u2019s previous appeal contended that the trial court erred in finding that the net value of the Country Club property on the date of separation was $76,900.00. On this issue, we remanded the matter to the trial court to determine what credit, if any, the husband should receive for reduction of debt on marital property. McNeely v. McNeely, 2008 N.C. App. LEXIS 217, 2008 WL 304922 (N.C. App. Feb. 5, 2008) (No. COA07-483) (\"McNeely I\u201d). We explained that\nhusband made loan payments on the mortgage after the date of separation, although \u201chow much he paid, and how much was interest, [wa]s not in evidence.\u201d . . . \u201c[I]t would appear that [husband] should be credited with at least the amount by which he decreased the principal owed on the marital [Country Club property].\u201d\nId. (citations omitted).\nC. Hearing After Remand\nOn remand, husband proved that, post-separation, he extinguished the $75,644.00 mortgage on the Country Club property, from his separate funds. On 28 March 2008, the trial court entered a modified judgment of equitable distribution (\u201cmodified judgment\u201d). Consistent with our mandate, the court properly awarded $11,084.48 in escrow funds to husband as his separate property. The court also awarded husband credit for the post-separation payment on the Country Club property. The subsequent judgment of the trial court explains its methodology in the following findings:\n5. There exists a tract of land on Country Club Road.... The parties concede it is marital. It had a gross fair market value on the date of separation of $76,900 which was its purchase price in April, 2003.... Husband sold his separate properties on August 2, 2005, and paid off the loan, thus freeing this parcel of encumbrance. Husband made the loan payments after the date of separation, and the effect of those payments was to eliminate a marital debt to the extent of $75,644. ... The court finds that the net value of the 8.627 acres on the date of separation was $76,900.\n14. In addition to having various items of personalty at the time of this marriage, Wife had a quantity of money. Out of that premarital money, over the course of the marriage, Wife deposited a total of $178,710 into the McNeely Landscaping account, such deposits being each duly noted as \u201cLoan from Beverly.\u201d No check is ever shown as explicitly repaying any such loan .... Because [it] is not possible to point to any specific asset and call it the proceeds of the loans, the court considers the fact of the money deposited as \u201cLoan from Beverly\u201d as a distributional factor.\n15. [B]ecause marital estate [is] so heavily concentrated in large, non-liquid assets, and because a distribution in kind is practical, the court\u2019s distribution will not necessarily follow what the parties recommended.\n16. Because of the weight that the court has given the distributional factor discussed in finding 14, an equal distribution of the net marital estate is not equitable. . . . [T]he distributional factor discussed in finding 14 persuades the court that Wife\u2019s portion should be about $178,700 higher than Husband\u2019s. In fact (as an examination of the distribution set forth below will confirm), the difference is not quite that much, because of other distributional factors. . . . [This is] how the court has dealt with Husband\u2019s payment of the deed of trust[:] The court subtracted the debt from the marital estate, which has the effect of spreading the debt equally. The court then assigned Husband\u2019s payments on that debt (as divisible property) entirely to Husband, at their negative value, thus giving him sole credit for their payment, and in effect debiting Wife\u2019s portion by the part of the marital debt that she theoretically should have been responsible for.\n(Emphasis added.) Husband appeals the modified judgment.\nII.Standard of Review\nThe trial court has discretion in distributing marital property and \u201cthe exercise of that discretion will not be disturbed in the absence of clear abuse.\u201d Lawing v. Lawing, 81 N.C. App. 159, 162, 344 S.E.2d 100, 104 (1986). \u201cA ruling committed to a trial court\u2019s discretion is to be accorded great deference and will be upset only upon a showing that it was so arbitrary that it could not have been the result of a reasoned decision.\u201d White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985).\nIII.Issues\nIn this appeal, husband contends that the trial court erred in its modified judgment by failing to properly credit him with the sum of $75,644.00 after receiving evidence of his post-separation mortgage payment on the Country Club property. Husband argues that the trial court should have either distributed additional marital assets to him valued at $75,644.00 or returned his separate funds of $75,644.00.\nHusband specifically assigns error to the findings of fact and conclusions of law in the modified judgment which provide that: (1) the net value of the Country Club property on the date of separation was $76,900.00; (2) the mortgage on the Country Club property was a marital debt; and (3) husband\u2019s post-separation payment on the mortgage constituted divisible property with a negative value of $75,644.00. Husband also asserts that, in light of his post-separation mortgage payment, from his separate funds, the trial court abused its discretion when it awarded wife three of the four marital real properties. We disagree.\nIV.Modified Judgment of Equitable Distribution\nN.C. Gen. Stat. \u00a7 50-20 provides that, in an equitable distribution proceeding, the trial court \u201cshall determine what is the marital property and divisible property and shall provide for an equitable distribution of the marital property and divisible property between the parties[.]\u201d N.C. Gen. Stat. \u00a7 50-20(a) (2007). Marital property is restricted to property acquired before the date of separation. N.C. Gen. Stat. \u00a7 50-20(b)(l). In an effort to equitably account for post-separation events, N.C. Gen. Stat. \u00a7 50-20(b) was amended in 1997 to include the category of \u201cdivisible\u201d property. See 1997 N.C. Sess. Laws ch. 302, \u00a7 1; N.C. Gen. Stat. \u00a7 50-20(b). The definition of divisible property, pursuant to N.C. Gen. Stat. \u00a7 50-20(b), was amended in 2002 to include increases and decreases in marital debt. See 2002 N.C. Sess. Laws ch. 159, \u00a7 33.5; N.C. Gen. Stat. \u00a7 50-20(b)(4).\nA. Net Value\nHusband assigns error to the trial court\u2019s finding that the net value of the Country Club property on the date of separation was $76,900.00. He argues that the net value should be zero because the property was encumbered by a mortgage. \u201cPrior to ordering an equitable distribution of marital property, the trial judge is required to calculate the net fair market value of the property.\u201d Carlson v. Carlson, 127 N.C. App. 87, 91, 487 S.E.2d 784, 786, disc. reviews denied, 347 N.C. 396, 494 S.E.2d 407 (1997). The trial court calculates the net fair market value of a property, by reducing its fair market value by the value of any debts that are attached to the property. Id.\n\u201cIn appellate review of a bench equitable distribution trial, the findings of fact regarding value are conclusive if there is evidence to support them, even if there is also evidence supporting a finding otherwise.\u201d Crutchfield v. Crutchfield, 132 N.C. App. 193, 197, 511 S.E.2d 31, 34 (1999). \u201cThis Court is not here to second-guess values of marital and separate property where there is evidence to support the trial court\u2019s figures.\u201d Mishler v. Mishler, 90 N.C. App. 72, 74, 367 S.E.2d 385, 386, disc. review denied, 323 N.C. 174, 373 S.E.2d 111 (1988).\nIn McNeely I, we had already decided that there was sufficient, evidence to support the net value of $76,900.00. 2008 N.C. App. LEXIS 217, 2008 WL 304922. In our determination, we explained that:\nWithout copies of the mortgage documents in the record on appeal from April 2003 (when the mortgage was taken out by the parties) or August 2005 (when the mortgage was satisfied by husband), this Court cannot contradict the trial court\u2019s finding with respect to the value of the Country Club property, rather than reduce [] in net value to zero on the date of separation, as husband contends. In the absence of clear abuse of discretion, we must find as conclusiv\u00e9 the trial court\u2019s findings of fact regarding the value of the marital Country Club property, \u201ceven if there is also evidence supporting a finding otherwise.\u201d\nId. (citations omitted). After affirming the net value of $76,900.00, this Court remanded the case so that the trial court could determine the amount to be credited to husband for reducing the debt on the Country Club property. Id. On remand, it found that husband paid $75,644.00 from his separate funds toward the mortgage and classified the payment as divisible property. Given that the trial court adhered to our instructions, this assignment of error is overruled.\nB. Classification of Debt\nHusband also assigns error to the trial court\u2019s conclusion that the mortgage on the Country Club property was a marital debt. \u201c[A] marital debt is defined as a debt incurred during the marriage for the joint benefit of the parties.\u201d Geer v. Geer, 84 N.C. App. 471, 475, 353 S.E.2d 427, 429 (1987). Here, the debt was a joint obligation incurred on entireties\u2019 property, two months prior to the date of separation. We overrule this assignment of error.\nC. Classification as Divisible Property\nHusband also contends that the trial court erred in classifying his post-separation mortgage payment as divisible property. The definition of divisible property, pursuant to N.C. Gen. Stat. \u00a7 50-20(b)(4)(d), was amended in 2002, to include \u201cdecreases in marital debt and financing charges and interest related to marital debt.\u201d See N.C. Sess. Laws ch. 159, \u00a7 33.5; N.C. \u00a7 50-20(b)(4)(d) (2007) (emphasis added). As a result of this amendment, the trial courts were directed to classify all post-separation payments of a marital debt, made by either spouse after 11 October 2006, as divisible property. See Warren v. Warren, 175 N.C. App. 509, 517, 623 S.E.2d 800, 805 (2006).\nIn the present case, husband decreased the marital debt by $75,644.00 in August 2005 by paying the mortgage on the Country Club property. The trial court properly classified this payment as divisible property, and therefore, we overrule this assignment of error.\nD. Credit for Post-Separation Payments\nHusband argues that the trial court erred by failing to properly grant him credit for the payment he made to decrease the mortgage debt. He argues that, in light of his post-separation payment, he should have either been credited with $75,644.00 in additional marital assets, such as the Country Club property, or have been returned his $75,644.00. After careful review, we do not find an abuse of discretion.\nThe equitable distribution statute provides that the trial court should divide the marital property equally \u201cby using net value of marital property and net value of divisible property[.]\u201d N.C. Gen. Stat. \u00a7 50-20(c). However, \u201c [i]f the court determines that an equal division is not equitable, the court shall divide the marital property and divisible property equitably.\u201d Id. When making an unequal distribution, the trial court must make findings to indicate that it has considered the distributional factors listed in N.C. Gen. Stat. \u00a7 50-20(c), which includes \u201c[a]ny other factor which the court finds to be just and proper.\u201d N.C. Gen. Stat. \u00a7 50-20(c)(12); see Collins v. Collins, 125 N.C. App. 113, 117, 479 S.E.2d 240, 242, disc. review denied, 346 N.C. 277, 487 S.E.2d 542 (1997).\nIn its original judgment, the parties\u2019 marital estate was valued at approximately $458,375.00. The trial court awarded wife approximately 60.43% of the estate, valued at $276,984.00, and husband received the remaining 39.57% of the estate, valued at approximately $181,391.00. At the time, the trial court did not have evidence of the amount which husband paid toward the Country Club property mortgage and therefore, assigned the Country Club property a net value of $76,900.00 and awarded it to wife.\nIn McNeely I, we determined that $11,084.48 of funds previously awarded to wife as marital property was the separate property of husband. 2008 N.C. App. LEXIS 217, 2008 WL 304922. This reduced the value of the marital estate to $447,291.00 and wife\u2019s award to $265,900.00.\nIn its modified judgment, in accordance with our instructions in McNeely I, the trial court made a finding of fact that husband had contributed $75,644.00 of his separate funds to pay off the Country Club mortgage. Furthermore, it explained in detail how it granted husband credit for his payment. Next, the trial court subtracted the amount of $75,644.00 from the value of the marital estate, so that the mortgage debt could be spread equally between both parties, which resulted in a marital estate having a value of $371,647.00.\nThe trial court credited husband for his contribution toward the Country Club property mortgage by subtracting $75,644.00 from his award in order to give him sole credit for satisfying the marital debt. As a result, .the value of husband\u2019s award was reduced to $105,747.00, which was $160,153.00 less than wife\u2019s award, valued at $265,900.00.\nTo support its division, the trial court found that over the course of the marriage, wife had lent $178,710.00 of her separate funds to the marital business, McNeely Landscaping, and that there was no evidence that she had been repaid. The trial court considered this loan as a distributional factor because it \u201cis not possible to point to any specific asset and call it the proceeds of the loans[.]\u201d Due to the non-liquid nature of the parties\u2019 assets and the amount of wife\u2019s loan, the trial court determined that wife should be awarded $178,700.00 more than husband. Therefore, it would not have been equitable for the trial court to award husband any additional assets or funds. Because the trial court made sufficient findings of fact to consider wife\u2019s loan as a distributional factor, we find no abuse of discretion. Having concluded that the trial court correctly classified husband\u2019s post-separation payment as divisible property, granted husband credit for the payment, and made sufficient findings of fact reflecting its distribution decision, we overrule the assignments of error.\nV. Conclusion\nThere being no abuse of discretion in the division of the parties\u2019 marital estate and debt, the modified judgment of equitable distribution is affirmed.\nAffirmed.\nJudges McGEE and JACKSON concur.\n. All figures are rounded.", "type": "majority", "author": "HUNTER, JR., Robert N., Judge." } ], "attorneys": [ "Adams Hendon Carson Crow & Saenger, P.A., by Joy Mclver and Matthew S. Roberson, for plaintiff-appellee.", "Donald H. Barton, P.C., by Donald H. Barton, for defendant-appellant." ], "corrections": "", "head_matter": "BEVERLY McNEELY, Plaintiff v. BOYD R. McNEELY, Defendant\nNo. COA08-917\n(Filed 17 March 2009)\n1. Divorce\u2014 equitable distribution\u2014value of property\u2014 mortgage payment\u2014divisible property\nThe trial court did not err in finding the net value of a property in dispute in an equitable distribution action where a prior appeal had determined that there was sufficient evidence to support the net value found by the court, and the trial court adhered to the remand instructions when it found the amount paid by the husband from his funds toward the mortgage and classified the payment as divisible property.\n2. Divorce\u2014 equitable distribution\u2014mortgage\u2014marital debt\nThe trial court did not err in an equitable distribution action by concluding that a mortgage was a marital debt where the debt was a joint obligation incurred on entireties property two months before separation.\n3. Divorce\u2014 equitable distribution\u2014post-separation mortgage payment\u2014divisible property\nThe trial court did not err in an equitable distribution action by classifying a post-separation mortgage payment as divisible property. N.C.G.S. \u00a7 50-20(b)(4)(d) (2007).\n4. Divorce\u2014 equitable distribution\u2014post-separation payment of debt\u2014separate funds lent to business\nThe trial court did not abuse its discretion in an equitable distribution action in the way the husband was given credit for a post-separation payment to reduce a marital mortgage debt where the wife had lent her separate funds to the marital business and the parties\u2019s assets were not liquid.\nAppeal by defendant from judgment entered 28 March 2008 by Judge Robert S. Cilley in Transylvania County District Court. Heard in the Court of Appeals 28 January 2008.\nAdams Hendon Carson Crow & Saenger, P.A., by Joy Mclver and Matthew S. Roberson, for plaintiff-appellee.\nDonald H. Barton, P.C., by Donald H. Barton, for defendant-appellant." }, "file_name": "0705-01", "first_page_order": 737, "last_page_order": 745 }