McManus v. McManus
McManus v. McManus
Opinion of the Court
At the threshold the inaptness and burdensome prolixity of defendant’s assignments of error requires comment. They fill
Now to the assignments of error that are supported by argument. Defendant contends that the evidence does not support the court’s findings that $9,799.25 in cash, certain Triad Life stock, and a Dodge van were marital property, and that the deck furniture was the separate property of the plaintiff. These contentions are without merit and we overrule them. As to the cash fund, defendant argues that under G.S. 50-20(b)(l) marital property must be “presently owned” at the time of the separation and that since the evidence does not show that he owned the cash when they separated it was not marital property. We disagree. The evidence shows, as the court found, that—
22. Between September 22, 1981 and October 15, 1981 Defendant had cash funds of $9,799.25 unaccounted for but which he did not use to pay any outstanding debts, loans or taxes, or to make any purchases or home repairs or improvements of items, and that such amount far exceeded their ordinary monthly expenses.
While the evidence does not directly show that defendant had the money on October 15, 1981 when they separated, it clearly permits that inference. As to the Triad Life stock, defendant contends that it was a gift from his father and therefore separate property. His testimony does tend to support this claim; but the property was acquired during the marriage and G.S. 50-20 creates the presumption that all property so acquired is marital property, and requires the party claiming otherwise to prove his claim by
As to the 1973 Dodge van, the property division schedule incorporated into the court’s judgment states that the van is a 1973 model, from which it can be inferred that it was acquired during the marriage and was marital property. Furthermore, defendant testified, in brief, that the van was originally titled in his name and that he did not know whether he sold it before or after the separation — which is hardly “cogent and convincing” proof that the van or the sale proceeds was not marital property. As to the deck furniture being plaintiffs separate property, even if this was error, as it apparently was, it was harmless, for the court found that it had no value and there was evidence to that effect. The Equitable Distribution Act requires the distribution of marital assets according to their “net value.” See G.S. 50-20(c); White v. White, 312 N.C. 770, 324 S.E. 2d 829 (1985); Sharp, Equitable Distribution of Property in North Carolina: A Preliminary Analysis, 61 N.C. L. Rev. 247 (1983). It does not require the distribution of articles that have no net value.
Defendant next contends that the trial court erred in finding that an interest in A & A Auto and Industrial Parts, Inc., a closely held corporation that defendant operated and served as president, is worth $29,865. The interest in question includes 35 shares of stock that defendant has already paid for at a cost of $14,000; the option to complete the purchase of 215 more shares at the same price of $400 a share by weekly payments of $200 each; the right to vote all 250 shares while the rest of the stock is being paid for; and the preemptive right to buy the remaining 250 shares of outstanding stock whenever the other owner desires to sell. The court’s finding is based on evidence that defendant paid $14,000 for the stock, was buying more stock at the same price of $400 a share, and received an average annual dividend on the stock of $15,865 for the years 1981, 1982 and 1983. This is support enough in our opinion. The court’s finding is further buttessed, however, by other evidence showing that his voting rights to both
Finally, defendant contends that the trial court’s division of the property is neither equal nor equitable and was an abuse of discretion. The only bases advanced for this argument are those already discussed and rejected plus a mistake that the court made in calculating the value of the assets distributed to each party. The judgment recites that the value of the property allocated to defendant exceeds that distributed to plaintiff by $2,747.36 and that plaintiffs interest in that excess is therefore $1,373; whereas the actual difference in the value of the distributions, according to the various other values found, is $2,447.36. Thus, the equalizing payment required of defendant is only $1,223.68, rather than $1,373. But this error is no basis for granting a new trial; it is but a typographical and mathematical inadvertence which we herewith correct. With this modification only the judgment of the trial court is affirmed.
Modified and affirmed.
Concurring in Part
concurring in part and dissenting in part.
The majority opinion prompts responses on two levels. First, given the number of appeals that are dismissed, not to mention the number of times attorneys are admonished, when attorneys fail to comply strictly with the Rules of Appellate Procedure, I am loathe to castigate attorneys and to find specific fault when an overly cautious attorney makes more than one assignment of er
Second, I concur in the majority’s analysis of all issues except the Triad stock issue. In my view Mr. McManus proved by clear, cogent and convincing evidence that the Triad stock was his separate — not marital — property. See Loeb v. Loeb, 72 N.C. App. 205, 324 S.E. 2d 33, cert. denied, 313 N.C. 508, 329 S.E. 2d 393 (1985). Indeed, the uncontradicted evidence was that during the course of the marriage between the parties, Mr. McManus’ father bought stock in Triad Life and placed it in the name of each of his children, including Mr. McManus. Mr. McManus specifically testified that he did not put any of his own money into acquiring the stock and that his father gave the stock to him and not to the plaintiff, Mrs. McManus. Consequently, this case presents no issue on appeal in which my “evaluation of the defendant’s testimony [is] . . . substituted for that made by the trial court.” Ante. p. 5.
I reject the majority’s implicit suggestion, relying on the statutory presumption that property obtained during the marriage is “marital property,” that the trial judge as trier of the facts simply disbelieved Mr. McManus’ evidence. I find no basis upon which the trial court could have found that the Triad stock constituted “marital property,” and the trial court, therefore, erred in making the Triad stock a part of the “equitable distribution.”
Reference
- Full Case Name
- MARY NANCY ALMOND McMANUS v. JOSEPH BRINSON McMANUS
- Cited By
- 9 cases
- Status
- Published