{ "id": 2500250, "name": "KATHLEEN WIENCEK-ADAMS v. ROY REX ADAMS", "name_abbreviation": "Wiencek-Adams v. Adams", "decision_date": "1992-06-25", "docket_number": "No. 4A92", "first_page": "688", "last_page": "694", "citations": [ { "type": "official", "cite": "331 N.C. 688" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "410 S.E.2d 525", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": -1 }, { "cite": "104 N.C. App. 621", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523339 ], "year": 1991, "opinion_index": -1, "case_paths": [ "/nc-app/104/0621-01" ] }, { "cite": "336 S.E.2d 658", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1985, "pin_cites": [ { "page": "660" } ], "opinion_index": 0 }, { "cite": "78 N.C. App. 150", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8519915 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "153" } ], "opinion_index": 0, "case_paths": [ "/nc-app/78/0150-01" ] }, { "cite": "328 S.E.2d 600", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "74 N.C. App. 554", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525363 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc-app/74/0554-01" ] }, { "cite": "374 S.E.2d 376", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "323 N.C. 543", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2563389 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/323/0543-01" ] }, { "cite": "363 S.E.2d 95", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "88 N.C. App. 285", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358145 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc-app/88/0285-01" ] }, { "cite": "341 S.E.2d 116", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "80 N.C. App. 110", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522067 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc-app/80/0110-01" ] }, { "cite": "344 S.E.2d 100", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "81 N.C. App. 159", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522057 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc-app/81/0159-01" ] }, { "cite": "324 S.E.2d 829", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1985, "opinion_index": 0 }, { "cite": "312 N.C. 770", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4755941 ], "weight": 2, "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/312/0770-01" ] }, { "cite": "323 S.E.2d 23", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "312 N.C. 460", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4753806 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/312/0460-01" ] }, { "cite": "351 S.E.2d 286", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "318 N.C. 680", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4735974 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc/318/0680-01" ] }, { "cite": "410 S.E.2d 525", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "527" } ], "opinion_index": 0 }, { "cite": "104 N.C. App. 621", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523339 ], "year": 1991, "pin_cites": [ { "page": "624" } ], "opinion_index": 0, "case_paths": [ "/nc-app/104/0621-01" ] } ], "analysis": { "cardinality": 636, "char_count": 14551, "ocr_confidence": 0.777, "pagerank": { "raw": 5.813995834562607e-07, "percentile": 0.9514687921959929 }, "sha256": "896602439ed36731168110addaa057d262829ac18fbc4585c9814625593337f8", "simhash": "1:c22c542e760d9576", "word_count": 2447 }, "last_updated": "2023-07-14T15:05:46.767853+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "KATHLEEN WIENCEK-ADAMS v. ROY REX ADAMS" ], "opinions": [ { "text": "LAKE, Justice.\nA Judgment of Absolute Divorce between the parties in this case was entered on 2 March 1989. The issues of custody, child support and equitable distribution were tried before Judge D. Jack Hooks, Jr. at the 1 December 1989 and 17 July 1990 sessions of the District Court, Brunswick County. The plaintiff appealed the trial court\u2019s order to the Court of Appeals, which rendered its opinion on 3 December 1991, with Judge Cozort dissenting.\nThe parties were married on 2 August 1981 and were separated on 3 January 1987; they have three daughters. At trial it was stipulated that at the time of the parties\u2019 separation there were two major assets: the husband\u2019s pension plan at Carolina Power & Light Company, which the court divided equally by way of a Qualified Domestic Relations Order, and the marital home located at 106 21st Street, Long Beach, North Carolina. On the date of separation, the fair market value of the home was $31,000.00, with an outstanding mortgage balance of $19,605.29, resulting in a net equity of $11,394.71. The parties had a joint marital debt to the Internal Revenue Service of $23,042.70 in back taxes for 1981 and 1982.\nThe evidence indicates that at the time of their separation, the parties reached the following agreement: the husband would pay all the back taxes; the husband would assume and make payments on the deed of trust on the marital home; the wife would take custody of the children and seek no child support from the husband until such time as the back taxes were paid. The parties carried out this agreement to the extent that the husband did pay off all of the tax debt without seeking reimbursement from the wife and the wife supported the children without seeking child support payments from the husband. The parties did not reduce their agreement to writing.\nFollowing the separation, a dispute arose between the parties as to whether the agreement included a waiver by the wife of all her interest in the marital home as part of the consideration for the husband\u2019s paying the taxes. That dispute led to this contested action for equitable distribution.\nAfter hearing the evidence, the trial court found that the parties\u2019 oral agreement had included a provision for the wife to convey her interest in the marital home in exchange for the husband\u2019s agreement to pay the taxes. However, the trial court also found as a fact that the parties had not committed to writing the terms of their agreement, as required by N.C.G.S. \u00a7 22-2, and therefore disregarded the agreement in its treatment of the issues in this case.\nThe trial court held that the husband could not have. afforded to make any child support payments from the time of the parties\u2019 separation on 3 January 1987 to 1 January 1990 because he was making payments on the back taxes during that period. The court entered a child support order for the period from 1 January 1990 to the date of its order, 24 September 1990, carefully calculating the amount owed under the Child Support Guidelines both prior to and after their modification as of 1 July 1990.\nIn dividing the marital home under N.C.G.S. \u00a7 50-20, the court credited the defendant with his payment of the wife\u2019s share of the joint marital debt in the amount of $11,521.35 by awarding him sole ownership of the marital home, which had a net equity of $11,394.71.\nUltimately, the court awarded the wife $2,450.00 and the husband $13,844.71. The wife\u2019s award represents a one-half interest in a motorcycle and the appreciation in the marital home, neither of which was in dispute. The difference between the spouses\u2019 awards represents the net equity in the marital home.\nBecause this case comes before us by way of an appeal based solely on a dissenting opinion in the Court of Appeals, our review is \u201climited to a consideration of those questions which are (1) specifically set out in the dissenting opinion as the basis for [the] dissent, (2) stated in the notice of appeal, and (3) properly presented in the . . . briefs . . . .\u201d N.C. R. App. P. 16(b); see also State v. Hooper, 318 N.C. 680, 351 S.E.2d 286 (1987); Clifford v. River Bend Plantation, Inc., 312 N.C. 460, 323 S.E.2d 23 (1984). Therefore, the sole issue before us is whether the trial court\u2019s facially unequal distribution of the marital property constitutes an abuse of discretion in light of its finding that the distribution in this case should be equal. This is the issue presented in the dissent, the notice of appeal and the briefs.\nEquitable distribution is vested in the discretion of the trial court and will not be disturbed absent a clear abuse of that discretion. White v. White, 312 N.C. 770, 324 S.E.2d 829 (1985). Only a finding that the judgment was unsupported by reason and could not have been a result of competent inquiry, Lawing v. Lawing, 81 N.C. App. 159, 344 S.E.2d 100 (1986); Nix v. Nix, 80 N.C. App. 110, 341 S.E.2d 116 (1986), or a finding that the trial judge failed to comply with the statute, N.C.G.S. \u00a7 50-20(c) (1987), will establish an abuse of discretion. White v. White, 312 N.C. 770, 324 S.E.2d 829. The record before us reflects that the trial judge\u2019s decision is supported by reason and complies with the statute.\nThe wife\u2019s argument against the equitability of the court\u2019s distribution of the assets is grounded in the court\u2019s refusal to consider her waiver of child support during the period from the parties\u2019 separation on 3 January 1987 until 1 January 1990 while the husband was making payments on the joint marital tax debt. The contention is that if the court had offset the child support which would have accumulated during that period (found by the court to be $24,570.00) against the amount paid by the husband in back taxes ($23,042.70), the parties would have been essentially even, and the marital home should have been divided evenly between them. According to the wife, the court\u2019s failure to so consider her waiver, while awarding the husband the entire house, results in a double credit to the husband, who got both the benefit of not paying child support and the credit for paying the wife\u2019s share of the debt. Judge Cozort\u2019s dissent reflects these same arguments and concludes that \u201c[this] kind of double credit is an abuse of discretion, and [the court] should not let it stand.\u201d Wieneck-Adams v. Adams, 104 N.C. App. at 624, 410 S.E.2d at 527.\nAs a preliminary matter, we affirm the trial court\u2019s view that the oral agreement between the parties had to be disregarded. McLean v. McLean, 88 N.C. App. 285, 363 S.E.2d 95 (1987), aff\u2019d, 323 N.C. 543, 374 S.E.2d 376 (1988); McIntosh v. McIntosh, 74 N.C. App. 554, 328 S.E.2d 600 (1985); see N.C.G.S. \u00a7 50-20(d) (1987) (providing for written, duly executed and acknowledged agreements dividing marital property). However, the above, cited authorities do not stand for the proposition that the court was barred from considering, apart from the agreement, the fact that the wife had paid for the children\u2019s support for three years without contribution from the husband. What precluded the court from such consideration is the plain meaning of subsection (f) of N.C.G.S. \u00a7 50-20, the equitable distribution statute, which states:\n(f) The court shall provide for an equitable distribution without regard to alimony for either party or support of the children of both parties. After the determination of an equitable distribution, the court, upon request of either party, shall consider whether an order for alimony or child support should be modified or vacated pursuant to G.S. 50-16.9 or 50-13.7.\nN.C.G.S. \u00a7 50-20(f) (1987) (emphasis added).\nIn Bradley v. Bradley, 78 N.C. App. 150, 336 S.E.2d 658 (1985), the Court of Appeals held that N.C.G.S. \u00a7 50-20(f) \u201cindicates that amounts paid or received by a party as support for the children of the parties are not to be considered in determining an equitable distribution.\u201d 78 N.C. App. at 153, 336 S.E.2d at 660. We agree with the wife that Bradley is different from this case in that it focused on the prohibition on treating child support as income to either party. It is also true, as the wife argues, that our courts have not interpreted N.C.G.S. \u00a7 50-20(f) to exclude consideration of \u201can entire waiver of child support in exchange for satisfaction of a marital debt.\u201d However, the holding in Bradley reflects the broader prohibition of the statute: that past payments or receipts of child support are not to be taken into account in determining equitable distribution.\nAlternatively, the wife contends that the trial court could and should have considered the wife\u2019s unrequited waiver of child support under the catchall section of the statute allowing consideration of \u201cany other factor which the court finds to be just and proper.\u201d N.C.G.S. \u00a7 50-20(c)(12) (1987). We read the words \u201cany other\u201d to exclude those factors explicitly excluded from consideration by other provisions of N.C.G.S. \u00a7 50-20(f). Thus we conclude that in its determination of equitable distribution the trial court properly excluded the wife\u2019s payment of child support and her waiver of claims for the husband\u2019s payment of child support for the period from 3 January 1987 through 1 January 1990.\nFinally, the wife maintains that the court was inconsistent, and therefore erroneous, in finding that an equal distribution of the assets would be equitable in this case, but awarding the parties unequal parts of the marital estate. We understand the meaning of the trial court\u2019s ruling that an equal distribution of the assets would be equitable in this case to be that the parties were equally deserving when judged by the criteria in N.C.G.S. \u00a7 50-20(c). For example, they were both well employed, neither had assets or liabilities that far exceeded those of the other, and the wife had no desire or need to reside with the children in the marital home. Further, the wife was entitled to one-half the equity in the home ($5,697.00) but she was relieved of $11,521.00 in debt in exchange for her interest in the home. In order to achieve the equal distribution, the judge made an allowance in the husband\u2019s favor to reflect his post-separation payments to remove a debt that would otherwise have been divided equally here as well. We do not find any inconsistency or error in the trial court\u2019s order. In light of the facts properly under consideration by the trial court, including the \u201crelative parity in the incomes of the parties\u201d and the husband\u2019s having \u201cexpended substantial sums to alleviate . . . the marital debt,\u201d we find no abuse of discretion in allowing the husband a credit for his payment of the parties\u2019 joint marital debt to the Internal Revenue Service. Even Ms. Wiencek-Adams concedes that if the child support waiver is not to be taken into consideration, the distribution by the trial court is equitable.\nWhile we acknowledge the unfairness of the wife\u2019s supporting the children for three years without help from their father and without compensation in the ultimate resolution of the matter, unfortunately the issue of child support is not within the scope of our review in this case. It is not encompassed in the equitable distribution issue; indeed its consideration is explicitly barred by statute from inclusion in the determination of equitable distribution. Furthermore, the child support issue was not raised in any petition for further discretionary review under N.C.G.S. \u00a7 7A-31. Therefore, we cannot and do not reach it.\nWe conclude that there was no abuse of discretion by the trial court, and the decision of the Court of Appeals is\nAffirmed.\n. The court found as a fact that the husband\u2019s child support obligation for the period in question would have been $682.50 per month. Multiplied by 36 months, this amounts to $24,570.00.", "type": "majority", "author": "LAKE, Justice." }, { "text": "Justice WEBB\ndissenting.\nI dissent for the reasons stated by Judge Cozort in his dissenting opinion in the Court of Appeals.", "type": "dissent", "author": "Justice WEBB" } ], "attorneys": [ "Shipman & Lea, by Jennifer L. Umbaugh, for plaintiff-appellant.", "David P. Ford for defendant-appellee." ], "corrections": "", "head_matter": "KATHLEEN WIENCEK-ADAMS v. ROY REX ADAMS\nNo. 4A92\n(Filed 25 June 1992)\nDivorce and Separation \u00a7 161 (NCI4th)\u2014 equitable distribution \u2014 payment of marital debt \u2014child support not paid \u2014unequal distribution\nThe trial court did not abuse its discretion in an equitable distribution action by its unequal division of marital property where the parties agreed at the time of their separation that the husband would pay all back taxes and make all payments on the deed of trust on the marital home and that the wife would take custody of the children and not seek child support until the back taxes were paid; the agreement was not reduced to writing; the tax debt was paid by the husband without reimbursement from the wife and the wife supported the children without seeking child support payments from the husband; a dispute arose as to whether the agreement included a waiver by the wife of all of her interest in the marital home; and the trial court disregarded the agreement because it had not been committed to writing, found that the husband could not have made child support payments while he was paying back taxes, entered a child support order for the subsequent period, credited the husband with payment of the wife\u2019s share of the marital debt by awarding him sole ownership of the home, and awarded the wife two amounts not in dispute. Although the Court acknowledged the unfairness of the wife\u2019s supporting the children for three years without help from their father and without compensation in the ultimate resolution of the matter, the issue of child support is not encompassed in the equitable distribution issue and its consideration is explicitly barred by N.C.G.S. \u00a7 50-20(f) from inclusion in the determination of equitable distribution.\nAm Jur 2d, Divorce and Separation \u00a7\u00a7 915, 919, 930.\nJustice WEBB dissenting.\nAPPEAL by plaintiff pursuant to N.C.G.S. \u00a7 7A-30(2) from the decision of a divided panel of the Court of Appeals, 104 N.C. App. 621, 410 S.E.2d 525 (1991), affirming an order entered by Hooks, J., on 24 September 1990 in District Court, BRUNSWICK County, which provided for the equitable distribution of the marital assets of the parties pursuant to N.C.G.S. \u00a7 50-20. Plaintiff-appellant\u2019s argument heard in the Supreme Court on 13 April 1992.\nShipman & Lea, by Jennifer L. Umbaugh, for plaintiff-appellant.\nDavid P. Ford for defendant-appellee.\n. Throughout the notice of appeal and briefs filed in this Court, the plaintiff\u2019s name was spelled \u201cWieneck-Adams.\u201d However, this is inconsistent with pleadings included in the record on appeal filed in the Court of Appeals. Investigation reveals the correct spelling to be the one as used in this opinion." }, "file_name": "0688-01", "first_page_order": 730, "last_page_order": 736 }