{
  "id": 8527344,
  "name": "ELAINE CAROLINE PIERARD APPELBE v. RONALD WRIGHT APPELBE",
  "name_abbreviation": "Appelbe v. Appelbe",
  "decision_date": "1985-08-20",
  "docket_number": "No. 8421DC1091",
  "first_page": "391",
  "last_page": "395",
  "citations": [
    {
      "type": "official",
      "cite": "76 N.C. App. 391"
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  "court": {
    "name_abbreviation": "N.C. Ct. App.",
    "id": 14983,
    "name": "North Carolina Court of Appeals"
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    "name_long": "North Carolina",
    "name": "N.C."
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    {
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      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1985,
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      "cite": "312 N.C. 770",
      "category": "reporters:state",
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      "year": 1985,
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    {
      "cite": "308 S.E. 2d 68",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1983,
      "opinion_index": 0
    },
    {
      "cite": "64 N.C. App. 432",
      "category": "reporters:state",
      "reporter": "N.C. App.",
      "case_ids": [
        8527007
      ],
      "year": 1983,
      "opinion_index": 0,
      "case_paths": [
        "/nc-app/64/0432-01"
      ]
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  "last_updated": "2023-07-14T20:46:57.071049+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Judges Becton and EAGLES concur."
    ],
    "parties": [
      "ELAINE CAROLINE PIERARD APPELBE v. RONALD WRIGHT APPELBE"
    ],
    "opinions": [
      {
        "text": "PHILLIPS, Judge.\nOne of defendant\u2019s many contentions on appeal is that the court erred in distributing to plaintiff more than half of the marital property; on the other hand plaintiffs only contention is that the court erred in failing to give her an even larger share of the marital assets. Neither contention has merit in our opinion. The court\u2019s conclusion that more than half of the property should be distributed to plaintiff is supported by findings of fact and evidence that during their eighteen years of marriage plaintiff had furthered defendant\u2019s career and sacrificed her own career opportunities by being a homemaker; that defendant\u2019s earnings and retirement benefits greatly exceed plaintiffs; and that plaintiffs ability to work regularly at gainful employment is much impaired by chronic ill health. These same circumstances, so plaintiff argues, required the court to give plaintiff an even larger share of the marital assets. But equitable distribution, as the term suggests, is not distribution according to some fixed schedule or formula; it requires the exercise of judgment and discretion according to the circumstances involved, and nothing in the record indicates that the circumstances relied upon by plaintiff were not given their proper weight by the court or that the distribution made is inequitable to her.\nWhen the parties separated in October, 1981 plaintiff moved out of the marital homeplace, where they had lived since 1974, and defendant has occupied the house since then. After the court first entered judgment ordering that the place be sold by a licensed real estate agent, defendant moved, pursuant to Rules 59 and 60 of the N.C. Rules of Civil Procedure, that the judgment be amended to permit him to purchase plaintiffs interest in the property \u201cat the fair market value set by the Court of $110,000.00.\u201d In denying defendant\u2019s motion the court erred, in our opinion. According to defendant\u2019s uncontradicted affidavit, and from the very nature of things, selling the property through a licensed real estate agent, as the court ordered, instead of to the defendant, would unnecessarily cost both parties a sales commission amounting to several thousand dollars; and would put defendant to the considerable expense and inconvenience of moving out of the house where he has been situated for ten years, of searching for other quarters to live in, and of moving into and getting situated in them. Nothing in the record before us justifies any such a wasteful and burdensome course and we reverse the order requiring it. The price defendant offered to pay for the property is the very amount that the court found it is worth and his offer was to pay that amount within a reasonable time designated by the court. If the property is sold through an agent, however, a buyer able and willing to pay the parties\u2019 price may not be obtained for a long while, if at all. Though the court\u2019s discretion in equitable distribution cases is very broad, White v. White, 64 N.C. App. 432, 308 S.E. 2d 68 (1983), modified and aff\u2019d, 312 N.C. 770, 324 S.E. 2d 829 (1985), it does not encompass taking a course that will inevitably waste the marital assets and cause one of the parties to incur substantial expense and inconvenience, but is not likely to accomplish any corresponding benefit for either party. Under the circumstances recorded the best interests of both parties will be served by defendant purchasing plaintiffs interest in the house at its fair market value within a reasonable time; but since more than a year has passed since the property was last appraised, upon remand the court will have to determine its fair market value anew. If, after doing so, defendant is still willing and able to buy plaintiff s interest based thereon within a reasonable time, the court should permit him to do so.\nIn our opinion the court also erred in requiring defendant to pay prejudgment interest on $14,686.25 from October 4, 1981 when the parties separated, and that part of the judgment is reversed. When the parties separated plaintiffs right to any of the funds or things of value held by defendant had not been established and was not established until May 22, 1984, more than two and a half years later. The order to pay interest on any sum of plaintiffs that defendant retained after May 22, 1984 when it was adjudged that those funds were hers is authorized by law and defendant does not contest it. But no provision in the Equitable Distribution Act authorizes the payment of prejudgment interest on an equitable distribution, nor does any other statute of which we are aware. G.S. 24-5, which authorizes prejudgment interest in certain instances, is limited to sums due by contract and to sums designated by the jury or other fact finder as compensatory damages in certain non-contract cases; but the sum involved here is neither due plaintiff by contract, nor is it compensatory damages.\nFinally, defendant argues that the court erred in finding as facts that the services rendered by plaintiffs counsel during the entire course of the litigation, including the alimony and child support phase, was reasonably worth $16,000 and that in paying the fees ordered in the alimony part of the case, some $5,424.27 altogether, defendant was merely discharging his own legal obligation. This contention is without merit. Even if these findings are unsupported by evidence, as defendant contends, it does not appear that defendant has been harmed by them. The judgments appealed from made no provision for attorney fees and the record does not show what bearing, if any, the fees theretofore incurred or paid had upon the court\u2019s decision to divide the marital property. Error cannot be presumed, nor can it be established by surmise; it must be shown by the record, and we see none in this regard.\nAs to plaintiffs appeal \u2014 affirmed.\nAs to defendant\u2019s appeal \u2014 affirmed in part; reversed in part; and remanded.\nJudges Becton and EAGLES concur.",
        "type": "majority",
        "author": "PHILLIPS, Judge."
      }
    ],
    "attorneys": [
      "Randolph and Tamer, by Clyde C. Randolph, Jr. and Rebekah L. Randolph, for plaintiff appellant-appellee.",
      "David B. Hough for defendant appellee-appellant."
    ],
    "corrections": "",
    "head_matter": "ELAINE CAROLINE PIERARD APPELBE v. RONALD WRIGHT APPELBE\nNo. 8421DC1091\n(Filed 20 August 1985)\n1. Divorce and Alimony \u00a7 30\u2014 equitable distribution \u2014 court\u2019s distribution o\u00ed property proper\nThere was no error in an equitable distribution judgment which distributed to plaintiff more than half of the marital property where the court\u2019s conclusion was supported by findings of fact and evidence that plaintiff had furthered defendant\u2019s career and sacrificed her own career opportunities by being a homemaker, that defendant\u2019s earnings and retirement benefits greatly exceeded plaintiffs, and that plaintiffs ability to work regularly at gainful employment was much impaired by chronic ill health. Nothing in the record indicates that the circumstances were not given their proper weight by the court or that the distribution made was inequitable.\n2. Divorce and Alimony \u00a7 18.14\u2014 equitable distribution \u2014 order that house be sold \u2014 defendant\u2019s offer to purchase denied by court\nThe trial court erred by denying defendant\u2019s offer to buy a house at the fair market value set by the court where the court\u2019s equitable distribution judgment had ordered that the house be sold by a licensed real estate agent and the proceeds divided. Although the court\u2019s discretion in equitable distribution cases is very broad, it does not encompass taking a course that will inevitably waste the marital assets and cause one of the parties to incur substantial expense and inconvenience but is not likely to accomplish any corresponding benefit for either party.\n3. Divorce and Alimony 8 30; Judgments 8 55\u2014 equitable distribution \u2014 prejudgment interest improperly awarded\nThe trial court erred in an equitable distribution judgment by ordering defendant to pay prejudgment interest from the time the parties separated on a portion of the funds he was ordered to deliver to plaintiff. No provision in the Equitable Distribution Act authorizes payment of prejudgment interest on an equitable distribution and G.S. 24-5 is limited to sums due by contract and to sums designated by the jury or other fact finder as compensatory damages in certain non-contract cases.\n4. Divorce and Alimony \u00a7 27\u2014 findings as to attorney fees \u2014no prejudicial error\nThere was no error prejudicial to defendant in an equitable distribution judgment from findings as to the value of the services rendered by plaintiffs counsel where the judgments appealed from made no provision for attorney fees and the record does not show what bearing, if any, the fees had upon the court\u2019s decision to divide the marital property.\nAPPEALS by plaintiff and defendant from Harrill, Judge. Judgments entered 22 May 1984 and 7 June 1984 in District Court, FORSYTH County. Heard in the Court of Appeals 8 May 1985.\nPlaintiff and defendant both appealed from an equitable distribution judgment and an amended judgment entered pursuant to G.S. 50-20. In pertinent part, the judgments (1) distributed about 75\u00b0/o of the marital non real property, worth $61,081.46, to plaintiff and about 25% to defendant; (2) directed defendant to pay plaintiff prejudgment interest on $14,686.25 of the $21,500 in cash that he was ordered to deliver to her; and (3) directed that the marital real property, consisting of a dwelling house worth $110,000 on which there is a mortgage balance of about $36,000, be sold by a licensed real estate agent and the net proceeds divided equally, though defendant moved that he be permitted to buy plaintiffs equity based on the values found by the court.\nRandolph and Tamer, by Clyde C. Randolph, Jr. and Rebekah L. Randolph, for plaintiff appellant-appellee.\nDavid B. Hough for defendant appellee-appellant."
  },
  "file_name": "0391-01",
  "first_page_order": 425,
  "last_page_order": 429
}