Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Clark v. Dyer

Court of Appeals of North Carolina

September 2, 2014

CARLTON CLARK, JR., Plaintiff,

Heard in the Court of Appeals March 6, 2014.

Hoke County. No. 09-CvD-1062.

Ferrier Law, P.L.L.C., by Kimberly M. FerrierMs., for plaintiff-appellant.

No appellee brief filed.

STROUD, Judge. Judges CALABRIA and DAVIS concur.

Appeal by plaintiff from Equitable Distribution Judgment entered 7 February 2013 by Judge John H. Horne, Jr. in District Court, Hoke County.


STROUD, Judge.

Plaintiff appeals equitable distribution judgment. For the following reasons, we remand in part and affirm in part.

I. Background

In this appeal from the trial court's equitable distribution judgment, plaintiff's arguments can be summarized as a claim that the trial court gave defendant the gold mine, while he got the shaft.[1] We disagree and

Page 839

affirm, but for the reasons explained below, we remand for additional findings of fact and conclusions of law as to two issues and correction of an typographical error and miscalculations.

" The parties met in the early spring of 2004" at Chrome's Bar and Grill in Fayetteville, where " plaintiff was a patron and customer" and defendant was working as a bartender. The parties began dating, and defendant became pregnant with the parties' first child in May of 2004. The parties had two children together, born in 2005 and 2006. After the birth of their second child, in 2006, the parties married; they separated on 23 June 2009, and divorced on 14 March 2011.

Plaintiff owned and operated a sole proprietorship known as " Air Tech" prior to, during, and after the marriage, and the parties either separately or together during the marriage owned substantial bank accounts, personal property, and several parcels of real property. On 18 December 2009, plaintiff filed a complaint which included claims for divorce from bed and board, a paternity test, child custody, and equitable distribution. Thereafter, defendant filed an amended answer and counterclaimed for divorce from bed and board, post-separation support, permanent alimony, child custody and child support, and equitable distribution.

On 17 November 2010, the trial court entered a Consent Order awarding child support to defendant, interim equitable distribution, and dismissing defendant's counterclaims for post-separation support and alimony. On 7 February 2013, the trial court entered the equitable distribution judgment (" ED Judgment" ) which plaintiff appealed.[2] The ED Judgment is approximately 30 pages long and contains over 90 findings of fact; thus, for brevity, efficiency, and clarity we discuss below only those findings of fact necessary for an understanding of the arguments before this Court.

II. Standard of Review

The standard of review on appeal from a judgment entered after a non-jury trial is whether there is competent evidence to support the trial court's findings of fact and whether the findings support the conclusions of law and ensuing judgment. The trial court's findings of fact are binding on appeal as long as competent evidence supports them, despite the existence of evidence to the contrary.

The trial court's findings need only be supported by substantial evidence to be binding on appeal. We have defined substantial evidence as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.

As to the actual distribution ordered by the trial court, when reviewing an equitable distribution order, the standard of review is limited to a determination of whether there was a clear abuse of discretion. A trial court may be reversed for abuse of discretion only upon a showing that its actions are manifestly unsupported by reason.
The trial court's unchallenged findings of fact are presumed to be supported by competent evidence.

Peltzer v. Peltzer, __ N.C.App. __, __, 732 S.E.2d 357, 359-60 (citations, quotation marks, and brackets omitted), disc. rev. denied, 366 N.C. 417, 735 S.E.2d 186 (2012).

III. Observations Concerning

This Appeal This case does not, as did Hill v. Hill, " embody all of the flaws that could possibly create an abominable appeal of an equitable

Page 840

distribution judgment," but it does embody many of them, and adds on a few more for good measure. __ N.C.App. __, __, 748 S.E.2d 352, 355 (2013) (emphasis added). As in Hill, " [t]he defendant filed no brief." Id. at __, 748 S.E.2d at 355. " The order of the trial court combines evidentiary findings of fact, ultimate findings of fact, and conclusions of law" although here there was some " attempt to make them separate portions of the order." Id. at __, 748 S.E.2d at 356. " The brief of appellant is replete with inaccurate references to the record and transcript." Id. Mostly, here the brief refers only to the testimony in the transcript which is most useful and convenient to support plaintiff's argument, but fails to specifically reference the detailed exhibits presented at trial by both parties; without a brief from defendant, we have done our best to find the relevant documents. " In many instances there are no references to where the factual assertions are to be found in the record or transcript, in violation of Rule 28(e) of the Rules of Appellate Procedure." Id. at __, 748 S.E.2d at 356.

Throughout plaintiff's brief, he has commingled his arguments and issues, much as he seems to have commingled his separate, marital, and business funds during the marriage, thus rendering it difficult for us to discern exactly what his argument is as to many of the trial court's findings and conclusions. Plaintiff seems to realize this, as he prefaces his arguments by stating that he " recognizes a mere broad brush approach and a single assignment of error to the 7 February 2013 Equitable Distribution Judgment . . . is not appropriate, but with humble respect, Plaintiff does take issue with the entire Judgment and all of the Findings of Fact, Conclusions of Law and the Order." Plaintiff then proceeds to present ten relatively specific issues focusing on particular items of property or debt with a final issue entitled " ADDITIONAL ASSIGNMENTS OF ERROR" in which plaintiff expresses general displeasure with various pretrial rulings of the trial court, several discovery issues which were not preserved for appeal, and the fact that the trial court found much of defendant's evidence more credible than his own. Yet we must address plaintiff's arguments in some logical manner, within the applicable legal standards of review, so we have reorganized his issues into three categories and will try to address his arguments, which are raised in scattershot fashion, as they relate to each of the trial court's three required tasks in equitable distribution: classification, valuation, and distribution.

And in addition to these flaws, the plaintiff's contempt and disdain for defendant is expressed throughout his brief. Of course, it is clearly expressed throughout the record of this contentious case as well. In fact, defendant filed a Rule 11 motion addressing the disparaging statements about her in several motions which were filed for the purpose of " harass[ing] and injur[ing]" her, and, in addition, have no relevance whatsoever to the equitable distribution case. Plaintiff seems fixated on the circumstances of the inception of his and defendant's relationship back at Chrome's Bar and Grill, but that has no relevance to this case or this appeal. We will not address plaintiff's many general grievances against defendant which litter the record and brief, except to say that an appellate brief is no place for such nonsense.

IV. Classification

Plaintiff argues that the trial court improperly classified several items of property and debts. One of plaintiff's arguments as to classification arises repeatedly throughout his brief, so we will address it first as we can easily dispense with it. Plaintiff places great emphasis upon defendant's pretrial stipulation which he characterizes as a stipulation that " she made no financial contributions of any kind to the Plaintiff or to his separate properties prior to or during the marriage." As plaintiff raises this argument more than once, we will address this stipulation and its relevance in more detail.

Defendant did stipulate to the following:

1. Other than her bank account records, the defendant has not maintained any record of direct financial contributions to the household expenses, bills, and debts incurred by the ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.