{
  "id": 8526494,
  "name": "BEN F. LOEB, JR. v. ANNE N. LOEB",
  "name_abbreviation": "Loeb v. Loeb",
  "decision_date": "1985-01-02",
  "docket_number": "No. 8315DC1177",
  "first_page": "205",
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    "judges": [
      "Judges Hill and Braswell concur."
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    "parties": [
      "BEN F. LOEB, JR. v. ANNE N. LOEB"
    ],
    "opinions": [
      {
        "text": "BECTON, Judge.\nThis case deals with the inclusion of property acquired by gift from a third party in an equitable distribution of marital property.\nThe parties were married in 1961 and lived together until their separation in March 1981. During the course of their marriage, the plaintiff husband, Ben F. Loeb, Jr., worked as an attorney, first with a private law firm in Tennessee, then with the State of North Carolina. From 1964 until 1981, the defendant wife, Anne N. Loeb, generally did not work outside the home. The parties have two children.\nThe husband contributed his entire income to the support of the family and the accumulation of the parties\u2019 savings and assets. The parties handled their finances exclusively through joint savings and joint checking accounts. Over the years the wife\u2019s mother, Mrs. Nelson, gave the parties joint title to several tracts of real property in Tennessee as tenants by the entirety, and cash gifts individually that were deposited in their joint savings and joint checking accounts.\nDuring their marriage, the parties acquired the following: (1) joint title to a 196-acre farm in Tennessee (by deed from Mrs. Nelson); (2) joint title to a 36-acre farm in Tennessee (by deed from Mrs. Nelson); (3) joint title to an interest in a lot and building in Paris, Tennessee (by deed from Mrs. Nelson); (4) joint title to a residential lot in Chapel Hill (purchased with funds from their joint checking and savings accounts); (5) title in the wife\u2019s name alone to a condominium in Chapel Hill (purchased for cash, consisting of the proceeds from (a) a signature note in the wife\u2019s name, (b) a money market certificate in the wife\u2019s name, which was purchased with funds from a joint account, (c) stocks and bonds in the wife\u2019s name (purchased with the proceeds from stock originally held jointly or in the husband\u2019s name); (6) AT&T stock held in the wife\u2019s name (purchased with funds from the parties\u2019 joint checking account); (7) Commercial Bank Stock held in the wife\u2019s name (purchased with funds from the parties\u2019 joint checking account); (8) certificates of deposit at Orange Savings and Loan in both parties\u2019 names (purchased with funds from the parties\u2019 joint savings and checking accounts); (9) a certificate of deposit at Home Federal Savings and Loan in both parties\u2019 names (purchased with funds from the parties\u2019 joint savings and checking accounts); (10) a money market certificate at NCNB in the husband\u2019s name (purchased with funds from the parties\u2019 joint savings and checking accounts); (11) a house and lot in Chapel Hill (purchased with proceeds from the sale of the parties\u2019 first marital home in Chapel Hill, which, in turn, had been purchased with funds from joint savings and checking accounts); (12) a voluntary retirement account in the husband\u2019s name alone; (13) title in the wife\u2019s name alone to a 96-acre farm in Tennessee (by deed from her parents); (14) the husband\u2019s North Carolina State Employees\u2019 Retirement Account. The trial court made specific findings on the monetary value of each item listed above; these are included in the record on appeal.\nOn 30 September 1982 the husband instituted an action for absolute divorce from the wife and asked for an equitable distribution of the marital property. The Equitable Distribution Act (the Act), as codified at N.C. Gen. Stat. Sec. 50-20, applies to all actions for absolute divorce instituted on or after 1 October 1981. G.S. Sec. 50-20 (Supp. 1983). The absolute divorce was granted on 13 December 1982. The equitable distribution issue was tried in April 1983; the Order dividing the parties\u2019 marital property was entered on 3 June 1983. The trial court found that (1) items 1-12 were marital property; (2) item 13 was the wife\u2019s separate property; and (3) item 14 was the husband\u2019s separate property. It then distributed the marital property equally between the parties according to value, awarding the wife items 1-3 and 5-7, and awarding the husband items 4 and 8-12. Because of a slight discrepancy in the value of their respective property, the trial court ordered the husband to make a distributive award to the wife in the amount of $4,577 \u201cto render an equal and equitable distribution.\u201d\nAfter the trial, but before the entry of the Order, the wife filed a motion for a new trial or for leave to reopen the evidence. The motion was denied on 14 July 1983. The wife appeals from the 3 June 1983 Order and the 14 July 1983 denial of her motion.\nI\nUnder the Act, the trial judge, before equitably dividing the parties\u2019 property, must distinguish between \u201cmarital property,\u201d as defined in G.S. Sec. 50-20(b)(1) and \u201cseparate property,\u201d as defined in G.S. Sec. 50-20(b)(2). See Alexander v. Alexander, 68 N.C. App. 548, 315 S.E. 2d 772 (1984). \u201cSeparate property\u201d is not subject to equitable distribution. G.S. Sec. 50-20(c); S. Sharp, Equitable Distribution of Property in North Carolina: A Preliminary Analysis, 61 N.C.L. Rev. 247, 249 (1983). The wife assigns error to the trial court\u2019s classification of the Tennessee tracts of land given to the parties jointly by the wife\u2019s mother during the course of the marriage as \u201cmarital property.\u201d We find no error.\nUnder the original version of G.S. Sec. 50-20(b)(1), which was in effect at the time the husband filed for absolute divorce, \u201cmarital property\u201d was defined as \u201call real and personal property acquired by either spouse during the course of the marriage and presently owned, except property determined to be separate property in accordance with subdivision (2) of this section.\u201d G.S. Sec. 50-20(b)(1) (Supp. 1981). \u201cSeparate property,\u201d in pertinent part, included \u201call real and personal property acquired by a spouse ... by bequest, devise, descent, or gift during the course of the marriage.\u201d G.S. Sec. 50-20(b)(2) (Supp. 1981).\nIn construing the provisions of a statute, we find the legislative intent controlling. Jolly v. Wright, 300 N.C. 83, 265 S.E. 2d 135 (1980). The language of the statute itself and the purpose behind the legislation supply the strongest indicia of the legislative intent. State ex rel. Utilities Comm\u2019n v. Public Staff, 309 N.C. 195, 306 S.E. 2d 435 (1983); In re Kirkman, 302 N.C. 164, 273 S.E. 2d 712 (1981). The introductory provision of the Act reveals its equitable purpose: \u201cUpon application of a party, the court shall determine what is the marital property and shall provide for an equitable distribution of the marital property between the parties . . . .\u201d G.S. Sec. 50-20(a) (Supp. 1981). The Act reflects a trend nationwide towards recognizing marriage as \u201ca partnership, a shared enterprise to which both spouses make valuable contributions, albeit often in different ways.\u201d Sharp, supra, at 247.\nGuided by the legislative intent, we hold that the language of the Act, both in the original version and as amended, see G.S. Sec. 50-20 (Supp. 1983), creates a presumption that all property acquired by the parties during the course of the marriage is \u201cmarital property.\u201d Accord Painter v. Painter, 65 N.J. 196, 320 A. 2d 484 (1974) (similar statutory language); see Sharp, supra, at 250 & n. 16-17. Absent a statutorily-mandated standard of proof, we adopt the standard of proof required to rebut a presumption of gift between spouses in cases involving title to real property arising prior to the effective date of the Act. See Mims v. Mims, 305 N.C. 41, 286 S.E. 2d 779 (1982). The \u201cmarital property\u201d presumption may, therefore, be rebutted by clear, cogent, and convincing evidence that the property comes within the \u201cseparate property\u201d definition. See id. The burden of proof necessarily falls on the party claiming the \u201cseparate property.\u201d\nIn the case before us, the wife contends that the jointly held Tennessee tracts are her \u201cseparate property.\u201d The first question is whether jointly held property qualifies as \u201cmarital property.\u201d The 1981 version of the \u201cmarital property\u201d definition reads, in pertinent part, \u201call real and personal property acquired by either spouse. . . .\u201d G.S. 50-20(b)(1). We find that jointly held property should be read into the 1981 \u201cmarital property\u201d definition, especially in light of G.S. Sec. 50-20(b)(2) (Supp. 1981), which specifies that \u201cseparate property\u201d remains separate \u201cregardless of whether the title is in the name of the husband or wife or both.\u201d (Emphasis added.) Accord Grant v. Grant, 424 A. 2d 139 (Me. 1981) (interpreting similarly worded \u201cmarital property\u201d definition); see Sharp, supra, at 252 & n. 30 (majority rule among common-law states). The General Assembly has subsequently clarified its legislative intent by amending the \u201cmarital property\u201d definition to include \u201call real and personal property acquired by either spouse or both spouses. . . .\u201d G.S. Sec. 50-20(b)(1) (Supp. 1983). (Emphasis added.) Thus, the parties\u2019 jointly held Tennessee tracts were presumed to be \u201cmarital property.\u201d\nTo rebut the presumption, the wife had the burden of proving by clear, cogent, and convincing evidence that the tracts came within the \u201cseparate property\u201d definition. \u201cSeparate property\u201d is defined, in significant part, as \u201call real and personal property . . . acquired by a spouse by . . . gift during the course of the marriage.\u201d G.S. Sec. 50-20(b)(2) (Supp. 1981). (Emphasis added.) The General Assembly\u2019s choice of the singular term, \u201ca,\u201d is crucial. We discern that the legislature intended to exclude from the definition of \u201cseparate property\u201d a gift of property to both parties from a third party during the course of the marriage. Accord Ackley v. Ackley, 100 A.D. 2d 153, 472 N.Y.S. 2d 804 (N.Y. App. Div. 1984) (same outcome \u2014 \u201cgift from a party other than the spouse\u201d); In re Marriage of Wendt, 339 N.W. 2d 615 (Iowa Ct. App. 1983) (same outcome \u2014 \u201cgifts received by either party\u201d). Our holding reflects the partnership concept of marriage inherent in the equitable distribution statute, as discussed by the Ackley Court:\nIn construing the language of the equitable distribution statute, we must consider its basic premise that marriage is an economic partnership (see Forcucci v. Forcucci, 83 A.D. 2d 169, 171, 443 N.Y.S. 2d 1013). \u2018[T]he partnership concept of marriage is enhanced by a recognition that property acquired jointly by the spouses during marriage by gift, bequest, devise or descent is a part of the marital estate\u2019 (Grant v. Grant, [Me.], 424 A. 2d 139, 144). A gift of property to both spouses comes to them by reason of the marital relation (Forsythe v. Forsythe, [Mo. App.], 558 S.W. 2d 675, 678) and should be considered as property belonging to the marital partnership. Thus, wedding gifts as well as other gifts made to both spouses have been held to be marital property. [Citations omitted.]\n100 A.D. 2d at 155-6, 472 N.Y.S. 2d at 806.\nUnder common-law, a deed conveying real estate to a husband and wife creates an estate by the entireties. Freeze v. Congleton, 276 N.C. 178, 171 S.E. 2d 424 (1970). However, title is not absolutely controlling under the Act, as is clear from the \u201cseparate property\u201d definition, G.S. Sec. 50-20(b)(2) (1981). Joint title merely creates the rebuttable presumption of \u201cmarital property,\u201d which may be overcome by clear, cogent, and convincing evidence of the third party donor\u2019s contrary intent. Forsythe v. Forsythe, 558 S.W. 2d 675 (Mo. Ct. App. 1977); Ackley v. Ackley; Grant v. Grant (concurring opinion); see Sharp, supra, at 263 & n. 100. Thus, evidence that the gift of property was intended for only one spouse could conceivably rebut the presumption. Admittedly, the likelihood of overcoming the presumption is small. See Sharp, supra.\nHowever, in this case, the wife has totally failed to meet her burden of proof. Only the wife testified; and her testimony tends to buttress her mother\u2019s intent to make a gift to the marital estate. While discussing one tract of land the wife stated: \u201cMother had given us her share of the lot at that time.\u201d There is no evidence in the record of her mother\u2019s intent to make a gift to her daughter alone. The wife\u2019s mother conveyed the Tennessee tracts to the parties as tenants by the entirety. Without evidence of the donor\u2019s differing intent to rebut the \u201cmarital property\u201d presumption, we conclude that the trial court did not err in classifying the jointly held land as \u201cmarital property.\u201d\nII\nThe wife argues that the trial court\u2019s finding that \u201cgifts from the wife\u2019s mother were placed in joint [savings and checking] accounts and combined, with other income of the family including the [husband\u2019s] salary ... is not supported by competent, material and relevant evidence.\u201d (Emphasis added.) We disagree. The trial court\u2019s finding reflects the wife\u2019s failure to meet her burden of proof.\nThe wife relies on G.S. Sec. 50-20(b)(2) (Supp. 1981), which reads, in pertinent part, as follows: \u201cProperty acquired in exchange for separate property shall be considered separate property regardless of whether the title is in the name of the husband or wife or both.\u201d There is no doubt that the wife\u2019s cash gifts from her mother might have qualified initially as \u201cseparate property\u201d under G.S. Sec. 50-20(b)(2) (Supp. 1981), given sufficient evidence. Moreover, it is true that the wife\u2019s mere act of depositing her cash gifts from her mother in the parties\u2019 joint bank account would not have deprived them of their \u201cseparate property\u201d status under G.S. Sec. 50-20(b)(2) (Supp. 1981), if she had been able to trace the proceeds. The General Assembly clearly intended \u201cseparate property\u201d to remain \u00abo, no matter the title. See id. However, the wife had the burden of proving not only the act of giving, but also the monetary value of the gift. Absent proof of the value, a cash gift from a third party can not initially qualify as \u201cseparate property\u201d and be traced into a joint bank account.\nHere the wife was unable to state the value of her alleged \u201cseparate property\u201d: \u201cAs to approximately how much money my mother gave me and Mr. Loeb during the marriage, that was something I didn\u2019t total up in any specific manner .... I just don\u2019t have that figure.\u201d There is no evidence of the amount of the wife\u2019s cash gifts deposited in the parties\u2019 joint bank accounts. The wife has, therefore, failed to rebut the \u201cmarital property\u201d presumption. In essence, the wife\u2019s cash gifts were combined with the family\u2019s other income in the joint accounts.\nIn terms of the proof required the Act is consistent with prior North Carolina law. In Smith v. Smith, 255 N.C. 152, 120 S.E. 2d 575 (1961), the Court established a rebuttable presumption that the funds in a joint bank account to the credit of a husband and wife were held jointly, with each party entitled to one-half of the proceeds. The husband rebutted the simple presumption of a joint tenancy with proof that he was the sole source of all the funds in the joint account. Under those circumstances, the wife was held to be the husband\u2019s agent rather than the co-owner of the funds. Here the wife has not provided the necessary proof to rebut the \u201cmarital property\u201d presumption.\nWe find no error in the trial court\u2019s finding.\nIII\nThe trial court found that (1) the condominium in Chapel Hill, (2) the certificates of deposit at Orange Savings & Loan, (3) the certificate of deposit at Home Federal Savings & Loan, and (4) the money market certificate at North Carolina National Bank were purchased with funds from the parties\u2019 joint bank accounts. The wife contends that there is no competent evidence to support the trial court\u2019s finding. After reviewing the record, we summarily affirm. The wife also contends that the trial court \u201cimpermissibly failed to find the source and nature of the funds.\u201d The trial court found that items 1-4 listed above were \u201cmarital property,\u201d to the extent they were purchased with funds from the parties\u2019 joint bank accounts. Since the funds in the joint bank account were \u201cmarital property,\u201d for the reasons discussed in II, supra, the trial court\u2019s findings were adequate.\nIV\nThe trial court classified the Chapel Hill condominium as \u201cmarital property,\u201d after finding that it had been\npurchased by the [wife] in her name with funds of the joint savings of the parties . . .; stocks and bonds purchased by the parties from funds of savings and checking accounts held by the parties jointly . . . and $2,000 from a gift to the [wife] from her mother after separation of the parties.\nThe wife argues that there is \u201cno competent, relevant and material evidence that it was purchased with marital property.\u201d We disagree.\nIn addition to restating the argument addressed in II, supra, the wife emphasizes that the stocks and bonds liquidated were in her name alone. She concedes that \u201cto some extent, they were in her name because the husband insisted that they be.\u201d The wife does not contest the fact that the stocks and bonds were purchased with funds from the joint accounts.\nHaving concluded in II, supra, that funds from the joint accounts were \u201cmarital property,\u201d we must determine whether the subsequent issuance of the stocks and bonds in the wife\u2019s name alone changes the character of the asset. Considering that the funds in the accounts were marital property, a purchase of stock in a single spouse\u2019s name with funds from the account could be classified as a gift from the other spouse. However, G.S. Sec. 50-20(b)(2) (Supp. 1981) specifies that \u201cproperty acquired by gift from the other spouse during the course of the marriage shall be considered separate property only if such an intention is stated in the conveyance.\u201d There is no evidence in the record of such an intention.\nAt this point, we reiterate that there is a rebuttable presumption that all property acquired by either spouse during the course of the marriage is marital property. G.S. Sec. 50-20(b)(1) (Supp. 1981). The party claiming the separate property exception carries the burden of rebutting the presumption. See Sharp, supra, at 250. The wife has failed to carry her burden. We conclude that the trial court did not err in classifying the condominium as \u201cmarital property.\u201d\nV\nIn distributing the parties\u2019 marital property, the trial court awarded the husband the family residence and the residential lot in Chapel Hill, his voluntary retirement account, the certificates of deposit at Orange Savings & Loan and Home Federal Savings and the money market certificate at NCNB. The wife was awarded the condominium in Chapel Hill, the three jointly-held tracts of Tennessee land, and various stocks. The husband was also ordered to pay the wife a $4,577 distributive award. The wife argues that the trial court erred in making the award, since \u201cthe husband, the party with real earning power and substantial retirement assets, has been decreed the owner of virtually everything worthwhile which was acquired by the joint efforts of the parties during the nineteen years they lived together, and the owner of a large part of the wife\u2019s family\u2019s gifts.\u201d The trial court found that an equitable division of the marital properties was equitable and fair. Each party was awarded marital property with approximately the same monetary value. We are persuaded that the trial court did not err.\nG.S. Sec. 50-20(c) (Supp. 1981) provides, in pertinent part: \u201cThere shall be an equal division by using net value of marital property unless the [trial] court determines that an equal division is not equitable.\u201d Recently, this Court stated that the above language \u201csets forth a presumption of equal division which requires that the marital property be equally divided between the parties in the usual case and in the absence of some reason(s) compelling a contrary result.\u201d Alexander v. Alexander, 68 N.C. App. at 552, 315 S.E. 2d at 775. In this case, the trial court decided that the wife\u2019s parents\u2019 gifts to the parties constituted marital property. Once that determination had been made, it was not inequitable for the trial court to divide the marital property equally according to value absent \u201csome reason(s) compelling a contrary result.\u201d Id. There is no requirement that the trial judge consider the geographical location of the property as well as its monetary value, in making the distribution.\nThe wife contends that \u201csome reason(s) compelling a contrary result\u201d exist. Id. She asserts that a consideration of the statutory factors and the non-statutory factor listed in G.S. Sec. 50-20(c) (Supp. 1981) dictates a distribution weighted in her favor instead of an equal division. We disagree. The wife emphasizes: (1) the extremely disparate incomes of the parties, G.S. Sec. 50-20(c)(1); (2) her custody of the two children and need for shelter, G.S. Sec. 50-20(c)(4); (3) the husband\u2019s \u201csubstantial\u201d pension and retirement rights, G.S. Sec. 50-20(c)(5); (4) the \u201caward of virtually all the liquid marital assets to the husband,\u201d G.S. Sec. 50-20(c)(9); and (5) the fact that \u201c[m]ore than half of the combined net worth of the parties has been made possible by the generosity of the wife\u2019s family,\u201d G.S. Sec. 50-20(c)(12).\nWe summarily dispose of (2), (4) and (5). There is no evidence that the wife has a \u201cneed ... to occupy or own the marital residence. . . .\u201d G.S. Sec. 50-20(c)(4). According to her testimony, the condominium had been purchased as a new home for the children. The trial court did not award the husband \u201cvirtually all the liquid marital assets\u201d; the division was approximately equal. We need not address (5) in light of our discussions in I and II, supra.\nTurning to (1), under G.S. Sec. 50-20(c)(1), the trial court may consider \u201c[t]he income, property, and liabilities of each party . . .\u201d in deciding whether to make an equitable distribution. Clearly, \u201cproperty\u201d in this instance refers to the parties\u2019 \u201cseparate property.\u201d Although the parties\u2019 \u201cseparate property\u201d is not itself subject to equitable distribution under G.S. Sec. 50-20, its value may be considered as a balancing factor in the trial court\u2019s distribution of the marital property. 1 Valuation & Distribution of Marital Property Sec. 19.09 [1] (J. McCahey ed. 1984). It is true that the parties\u2019 earned income is significantly disproportionate. The husband earns approximately $50,000; the wife earns $7,000 part-time, while looking for full-time employment as a CPA. However, the trial court found that the wife had \u201cseparate property\u201d in the form of stocks, real estate and a vested remainder interest in the corpus of a large family trust fund, which is to be distributed upon her mother\u2019s death. The dividend-paying stocks and real estate were valued at approximately $37,000. We emphasize that the non-speculative quality of the wife\u2019s rights to the trust fund distinguishes this from the vast majority of cases. The principal is to remain untouched until its distribution at the wife\u2019s mother\u2019s death. Moreover, the wife\u2019s interest is vested. Compare Krause v. Krause, 174 Conn. 361, 387 A. 2d 548 (1978) (evidence of the \u201cpotential inheritance\u201d of a spouse is inadmissible, when the expectancy is, at most, speculative). Therefore, the trial court could properly consider the trust fund as \u201cseparate property.\u201d\nThe husband\u2019s retirement benefits were his only separate property. Under G.S. Sec. 50-20(c)(5) (Supp. 1981) the trial court may consider \u201c[vjested pension or retirement rights and the expectation of nonvested pension or retirement rights, which are separate property.\u201d The husband alone had such \u201cretirement rights,\u201d presently valued at $32,000.\nAfter reviewing the evidence in the context of the factors listed above, we are persuaded that the trial court correctly ordered an equal division of the marital property.\n<1\nAs stated in I, supra, the trial court, in an equitable distribution case, must first decide and make findings of fact on what \u201cproperty acquired by either spouse during the course of their marriage and presently owned . . constitutes \u201cmarital property.\u201d G.S. Sec. 50-20(b)(1) (Supp. 1981); Alexander v. Alexander. The wife assigns error to the trial court\u2019s failure to find the marital property of the parties. This assignment of error is without merit.\nIn Finding of Fact No. 11 the trial court stated: \u201cThe following properties were acquired by the parties and are presently owned by them. . . .\u201d It then listed twelve assets acquired by the parties during their marriage. Finding of Fact No. 12 begins: \u201cThe following is a list of separate property owned by the parties at the present time. . . .\u201d Although Finding of Fact No. 11 does not include the words \u201cmarital property,\u201d it tracks the language of G.S. Sec. 50-20(b)(1) (Supp. 1981), the definition of \u201cmarital property.\u201d We conclude that the trial court\u2019s finding on the parties\u2019 marital property is adequate.\nVII\nThe trial court simply found: \u201cAn equal distribution of marital property will be equitable and fair,\u201d before distributing the parties\u2019 marital property. The wife contends that the trial court erred \u201cin failing to make appropriate findings and conclusions as to the statutory factors for determining the division of marital property.\u201d We hold that the trial court need only make findings of fact on the statutory and nonstatutory factors to support its conclusion that an equal division is inequitable. See Alexander v. Alexander (dicta). G.S. Sec. 50-20(c) (Supp. 1981) establishes a presumption that an equal division is equitable. Only when the presumption is rebutted by \u201creason(s) compelling a contrary result\u201d are findings of fact on the statutory and non-statutory factors necessary to justify the unequal equitable distribution. Alexander v. Alexander, \u2014 N.C. App. at \u2014, 315 S.E. 2d at 775.\nVIII\nThe wife assigns error to the admission of the husband\u2019s real estate appraiser\u2019s report and the husband\u2019s summaries of checks. Neither exhibit has been included in the record on appeal. Without the exhibits before us, we are unable to determine whether the wife has been prejudiced by their admission. Medford v. Davis, 62 N.C. App. 308, 302 S.E. 2d 838, disc. rev. denied, 309 N.C. 461, 307 S.E. 2d 365 (1983); Hasty v. Turner, 53 N.C. App. 746, 281 S.E. 2d 728 (1981). We emphasize that the appellant has the responsibility of properly preparing the record on appeal. Tucker v. Gen\u2019l Tel. Co., 50 N.C. App. 112, 272 S.E. 2d 911 (1980). These assignments of error are deemed abandoned.\n) \u2014 I XI\nAfter the trial the wife made a motion for a new trial or the opportunity to present additional evidence under Rule 59 of the North Carolina Rules of Civil Procedure. In her motion, she did not specify the particular grounds under Rule 59. She assigns error to the trial court\u2019s denial of her motion, arguing that the husband\u2019s allegedly false interrogatory answer to a question on expert witnesses and his allegedly false testimony on financial records severely prejudiced her. A trial court\u2019s ruling on a motion for a new trial is not reviewable on appeal absent a manif\u00e9st abuse of discretion. Mumford v. Hutton & Bourbonnais Co., 47 N.C. App. 440, 267 S.E. 2d 511 (1980). We do not discern an abuse of discretion.\nWhen the husband\u2019s expert was tendered to the court, the wife\u2019s attorney made no objection, claimed no surprise, and sought no continuance. Whether the husband had already consulted an expert witness at the time he denied doing so in his interrogatory answer is immaterial under these circumstances, since the wife has failed to show any resulting prejudice. When a party claims prejudice on appeal, she must demonstrate how she was prejudiced. Medford v. Davis; Hasty v. Turner.\nFrom the wife\u2019s motion, we determine that the true issue before the trial court on the motion was not the husband\u2019s false interrogatory answer, but rather, the wife\u2019s inability to admit her own appraisal of the Tennessee property in evidence, pursuant to an alleged oral stipulation. In her motion the wife states that the husband\u2019s attorney reneged on the oral agreement at trial. The husband\u2019s attorney, in an affidavit submitted on the motion, denied the existence of an oral stipulation. Given the opposing counsel\u2019s denial, the oral stipulation cannot be proved. Lindsey v. Supreme Lodge of Knights of Honor, 172 N.C. 818, 90 S.E. 1013 (1916). It is advised that counsel evidence their stipulations by a signed writing to avoid this result. Amick v. Shipley, 43 N.C. App. 507, 259 S.E. 2d 329 (1979).\nTo determine whether evidence has been improperly excluded, the record must show the evidence was offered, an objection was sustained, and the purport of the evidence excluded. 1 H. Brandis, North Carolina Evidence Sec. 26 (2d rev. ed. 1982). Here, there is no evidence in the record that the wife\u2019s appraisal was even offered in evidence. The wife has failed to show any prejudice entitling her to relief under Rule 59. Medford v. Davis.\nThe wife\u2019s second grounds for her motion, the husband\u2019s allegedly false testimony on financial records, is not supported by the record.\nWe find that the trial court did not abuse its discretion in denying the wife\u2019s Rule 59 motion.\nX\nIn summary, the trial court did not err in classifying jointly-held real property received from a third party and assets purchased with funds from joint bank accounts as \u201cmarital property.\u201d Further, the trial court did not err in applying the equal division presumption to award each party one-half of the marital property. Finally, the trial court did not abuse its discretion in denying the wife\u2019s motion for a new trial or to present additional evidence.\nAffirmed.\nJudges Hill and Braswell concur.",
        "type": "majority",
        "author": "BECTON, Judge."
      }
    ],
    "attorneys": [
      "Susan H. Lewis and George W. Miller, Jr., for plaintiff ap-pellee.",
      "Hunter, Wharton & Howell, by John V. Hunter, III, for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "BEN F. LOEB, JR. v. ANNE N. LOEB\nNo. 8315DC1177\n(Filed 2 January 1985)\n1. Divorce and Alimony \u00a7 21.9\u2014 equitable distribution \u2014 presumption of marital property \u2014 standard of proof to rebut presumption\nThe Equitable Distribution Act creates a presumption that all property acquired by the parties during the course of the marriage is \u201cmarital property,\u201d and the standard of proof required to rebut that presumption is the clear, cogent, and convincing evidence standard required to rebut the presumption of gift between spouses in cases involving title to real property before the Act. G.S. 50-20 (Supp. 1983).\n2. Divorce and Alimony \u00a7 21.9\u2014 equitable distribution \u2014 jointly held property\u2014 presumption of gift to marital estate not rebutted\nIn an action for divorce and equitable distribution, the wife did not meet her burden of proof in contending that jointly held tracts conveyed to the parties as tenants by the entirety as a gift by the wife\u2019s mother were intended to be a gift to the wife alone rather than to the marital estate. G.S. 50-20(b)(l), G.S. 50-20(b)(2).\n3. Divorce and Alimony \u00a7 21.9\u2014 equitable distribution \u2014 cash gifts from wife\u2019s mother \u2014 marital property\nIn an action for divorce and equitable distribution, the court did not err by finding that cash gifts from the wife\u2019s mother were deposited in joint savings and checking accounts and combined with the other income of the family where the wife was unable to state the value of the gifts and the gifts could not be traced in the joint accounts. The wife did not provide the necessary proof to rebut the marital property assumption. G.S. 50-20(b)(2) (Supp. 1981).\n4. Divorce and Alimony \u00a7 21.9\u2014 equitable distribution \u2014 purchases from joint accounts \u2014 findings sufficient\nIn an action for divorce and equitable distribution, the court did not err in finding that a condominium, certificates of deposit, and money market certificates were purchased with funds from joint bank accounts. A finding concerning the source of funds was not needed since the joint bank accounts were marital property.\n5. Divorce and Alimony 8 21.9\u2014 equitable distribution \u2014 condominium in wife\u2019s name \u2014purchased with marital property\nIn an action for divorce and equitable distribution, the court did not err in finding that a condominium purchased in the wife\u2019s name had been purchased with marital property where it was purchased with funds from joint savings, stocks and bonds in the wife\u2019s name only purchased with funds from joint accounts, and $2,000 from a gift to the wife by her mother after the parties separated. The wife did not meet her burden of rebutting the presumption that all property acquired by either spouse during the marriage is marital property. G.S. 50-20(b)(2) (Supp. 1981).\n6. Divorce and Alimony \u00a7 21.9\u2014 equitable distribution \u2014 equal division of property \u2014 no error\nIn an action for divorce and equitable distribution, the court did not err by dividing the marital property equally according to value even though the parties\u2019 income was significantly disproportionate where a condominium had been purchased as a new home for the children, there was no evidence that the wife needed to occupy or own the marital residence, the wife had separate property in the form of stocks, real estate, and a vested interest in a large family trust, and the husband\u2019s only separate property was his retirement benefit. G.S. 50-20(c) (Supp. 1981).\n7. Divorce and Alimony \u00a7 21.9\u2014 equitable distribution of property \u2014 findings required\nIn an action for divorce and equitable distribution, the court did not err by not specifically finding the marital property of the parties where its finding as to the property acquired and owned by the parties tracked the language of the statutory definition of marital property. Findings and conclusions as to the statutory and non-statutory factors for determining the division of marital property are necessary only to justify an unequal equitable distribution. G.S. 50-20(b)(l) (Supp. 1981).\n8. Appeal and Error \u00a7 42.2\u2014 supporting evidence not in record \u2014 assignments of error deemed abandoned\nIn an action for divorce and equitable distribution, assignments of error concerning the admission of the husband\u2019s real estate appraiser\u2019s report and the husband\u2019s summaries of checks were deemed abandoned where neither exhibit was included in the record on appeal.\n9. Rules of Civil Procedure \u00a7 59\u2014 motion for new trial \u2014 properly denied\nIn an action for divorce and equitable distribution, defendant\u2019s Rule 59 motion for a new trial based on allegations that plaintiff had falsely answered an interrogatory about whether he had consulted an expert and had reneged on an oral stipulation concerning the admission of the wife\u2019s property appraisal, was properly denied where defendant did not object, claim surprise, or seek a continuance when the husband\u2019s expert was tendered to the court, where plaintiffs attorney filed an affidavit denying the existence of the stipulation, and where there was no evidence that the wife\u2019s appraisal was offered into evidence. G.S. 1A-1, Rule 59.\nAPPEAL by defendant from Hunt, Judge. Orders entered 3 June 1983 and 27 July 1983 in District Court, ORANGE County. Heard in the Court of Appeals 29 August 1984.\nSusan H. Lewis and George W. Miller, Jr., for plaintiff ap-pellee.\nHunter, Wharton & Howell, by John V. Hunter, III, for defendant appellant."
  },
  "file_name": "0205-01",
  "first_page_order": 231,
  "last_page_order": 245
}
