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Zurosky v. Shaffer

Court of Appeals of North Carolina

September 2, 2014

KIRK ZUROSKY, Plaintiff-Appellant,
v.
ALYSON G. SHAFFER, Defendant-Appellee

Heard in the Court of Appeals May 8, 2014.

Page 756

Mecklenburg County. No. 09 CVD 30462.

Marshall & Taylor, P.C., by Travis R. TaylorMr., for Plaintiff-Appellant.

Hamilton Stephens Steele Martin, PLLC, by Amy Simpson FiorenzaMs., for Defendant-Appellee.

Marshall & Taylor, P.C., by Mr. Samuel R. Kilgore, III, for Plaintiff-Appellant.

Robert N. HUNTER, JR., Judge. Judges ERVIN and DAVIS concur.

OPINION

Page 757

Robert N. HUNTER, JR., Judge.

Appeal by plaintiff from judgment and order entered on 8 November 2013 by Judge Paige B. McThenia in Mecklenburg County District Court.

Kirk Zurosky (" Zurosky" ) appeals from a judgment and order entered on 8 November 2013. Zurosky argues (i) the trial court erred in its distribution of marital property, and (ii) the trial court erred in its ordering of alimony and child support. After careful review, we affirm in part and reverse and remand in part.

I. Facts & Procedural History

Zurosky and Alison Shaffer (" Shaffer" ) married on 1 July 1995. Zurosky and Shaffer have two children. In December 2008, Zurosky stated his intention to leave the marital home. On 21 January 2009, the parties entered into an interim agreement (" Interim Agreement" ) which addressed the parties' separation, addressed the parties' financial responsibilities, and provided a temporary shared custody schedule for their two children. On 22 January 2009, the couple separated and Zurosky left the marital home.

Zurosky initiated the present lawsuit on 3 December 2009 and sought temporary and permanent child custody, equitable distribution, and a psychological evaluation of Shaffer. The complaint alleged Shaffer did not allow Zurosky to see his children according to the terms of the Interim Agreement. Shaffer filed an answer on 24 February 2010 generally denying the complaint's allegations and asserting counterclaims seeking child custody, child support, sequestration [1] of both the Providence Glen home (the marital home) and a black Lexus SUV, postseparation support, alimony, equitable distribution,

Page 758

attorney's fees, and requested an appraisal of Zurosky's interest in T& Z. Zurosky and Shaffer divorced in June 2010.

On 28 June 2010, the trial court held a hearing concerning temporary child support (" TCS" ) and post-separation support (" PSS" ). On 6 August 2010, the initial equitable distribution pretrial conference scheduling and discovery order was entered. In compliance with this order, the parties filed equitable distribution affidavits, which were amended prior to entry of the final pre-trial order (" FPTO" ). The FPTO contained stipulations and contentions regarding twenty-five marital and separate property items, seven marital and separate debt items, and six divisible property items. On appeal, Zurosky contends that the trial court did not comply with the FPTO with respect to five of those items: the value and distribution of two airline miles accounts, insurance policy disbursements, and tax refunds.

On 31 August 2011, the trial court entered a TCS and PSS order. On 7 September 2011, Zurosky filed a motion to alter or amend the TCS and PSS Order. On 21 October 2011, Zurosky filed a motion for sanctions, which was granted in part against Shaffer for failing to produce documents in a timely manner and comply with discovery requests.

The trial court held hearings and took evidence regarding custody, equitable distribution, permanent child support, and alimony from November 2011 to June 2012. The trial court received testimony from both parties, business valuation experts, real estate appraisal experts, furniture appraisers, jewelry appraisers, family members, friends, coworkers, and employees. On 10 April 2013, Judge McThenia entered an Equitable Distribution Judgment and Permanent Child Support and Alimony Order (" April Judgment & Order" ).

In the trial court's April Judgment & Order, the trial court referenced two exhibits. Exhibit A shows the distribution and value of household goods and Exhibit B shows the distribution of marital and divisible assets and liabilities. Neither exhibit was attached to the April Judgment & Order.

On 7 May 2013, Zurosky appealed the April Judgment & Order. On 17 May 2013, Shaffer also appealed the April Judgment & Order. Shaffer filed a Motion for Rule 60 Relief on 29 July 2013 to correct a clerical mistake in the April Judgment & Order. The motion alleged the trial court failed to attach certain exhibits to the April Judgment & Order. The motion was granted on 8 November 2013.

Following the appeals and Motion for Rule 60 Relief, the trial court entered an Amended Equitable Distribution Judgment and Permanent Child Support and Alimony Order (" Amended Judgment & Order" ) on 8 November 2013, nunc pro tunc to 8 April 2013. The Amended Judgment & Order equitably distributed all marital property and contained 415 separate findings of fact. The trial court concluded an unequal distribution in favor of Shaffer, as outlined in the Amended Judgment & Order and attached exhibits, was equitable to both parties. In making its determination, the trial court made several findings addressing the factors laid forth in N.C. Gen. Stat. § 50-20(c) (2013):

(1) The income, property, and liabilities of each party at the time the division of property is to become effective.
Plaintiff/Husband's income greatly exceeded that of Defendant/Wife during the marriage and since the DOS. Unless something unexpected happens, Plaintiff/Husband's income is likely to always remain ten (10) to twenty (20) times higher than that of Defendant/Wife. This is perfectly illustrated by his 2012 distributions, which indicate that in one month Plaintiff/Husband grossed more than Defendant/Wife did in the entire 2011 year. Additionally, Plaintiff/Husband is now sharing the Providence Glen Home with Ms. Zurosky, who is an attorney who earns a substantial income of her own and can contribute to Plaintiff/Husband's future shared expenses.
Not only does Plaintiff/Husband's income exceed that of Defendant/Wife, but also his career growth potential is also far greater than that of Defendant/Wife. Defendant/Wife has a very specialized area of practice (i.e., behavioral analysis and work

Page 759

with children on the autism spectrum). She is always going to be limited by time and travel restraints and a market which continues to limit her area of specialization.
The Court considered the property and liabilities of the parties at the time of the division of the property as is shown on Exhibits " A" and " B." The facts found below are all that could be determined by the preponderance of the evidence. The property in the exhibits includes property to be distributed to the parties which is still in existence but does not include any distributive award which may be determined by consideration of these factors.
As evidenced in the attached exhibits, the assets of Plaintiff/Husband exceed those of Defendant/Wife.
(3) The duration of the marriage and the age and physical and mental health of both parties.
The duration of the marriage is thirteen and one half (13 1/2) years.
Defendant/Wife is four (4) years older than Plaintiff/Husband.
Plaintiff/Husband is in excellent health.
Defendant/Wife has health issues including asthma, chronic pain coupled with a skin disorder. It is anticipated that Defendant/Wife will only be able to manage these conditions as she ages, and that she will never be able to cure them. It is reasonable to assume that these painful conditions will not subside in the future and will likely impair, to some extent, her ability to function effectively and/or her quality of life in the future.
(4) The need of a parent with custody of a child or children of the marriage to occupy or own the marital residence and to use or own its household effects.
Both parties have the minor children with them fifty percent (50%) of the time; but, Plaintiff/Husband has the former marital residence and will keep it for which the children will benefit. Plaintiff/Husband has sufficient household goods to maintain a comfortable living with the minor children in the Providence Glen Home.
(5) The expectation of pension, retirement, or other deferred compensation rights that are not marital property.
Plaintiff/Husband has a higher expectation of pension, retirement or other deferred compensation rights as co-owner of a law firm that maintains a 401K plan for all employees.
Defendant/Wife is self-employed and does not have access to a 401K plan, nor does she have a way to fund a retirement plan similar to that of Plaintiff/Husband. The only way she can fund a retirement plan is through savings.
(6) Any equitable claim to, interest in, or direct or indirect contribution made to the acquisition of such marital property by the party not having title, including joint efforts or expenditures and contributions and services, or lack thereof, as a spouse, parent, wage earner or homemaker.
Defendant/Wife moved from Massachusetts to North Carolina with Plaintiff/Husband to support him in his dream to become a successful lawyer and to own his own firm. While in North Carolina, she helped Plaintiff/Husband build his law firm and make it as successful as it is today by taking care of the family and the home so that Plaintiff/Husband could focus on excelling in his career. Defendant/Wife supported Plaintiff/Husband emotionally, financially, and in any other way he asked her to help. In so doing, Defendant/Wife sacrificed her ability to excel to the fullest level in her career.
(7) Any direct or indirect contribution made by one spouse to help educate or develop the career potential of the other spouse.
See Factor (6) above.
(9) The liquid or nonliquid character of all marital property and divisible property.
The primary liquid assets (the savings account and the CD) have all been spent but for the substantial savings account maintained by the partners in T& Z (estimated to be in excess of $1,000,000).
(10) The difficulty of evaluating any component asset or any interest in a

Page 760

business, corporation or profession, and the economic desirability of retaining such asset or interest, intact and free from any claim or interference by the other party.

The primary liquid assets were the CD and BOA 4906 and 5460 (which have all been spent already). The primary asset is Plaintiff/Husband's interest [in] T& Z, (which is complicated to value but which is economically desirable to keep given the firm's profit margins).
Because of the downgrade in the residential real estate market, Plaintiff/Husband is going to be able to take both the Providence Glen Home and the Blowing Rock Home at a [sic] artificially low values. However, both of these assets have growth potential prospectively (and Plaintiff/Husband must agree with this assessment or else he would not have spent well over $100,000 in improving the Providence Glen Home cosmetically).
Since the DOS, Defendant/Wife has had to spend thousands of dollars to move herself and her furniture twice, [footnote omitted] and she will have to move a third time once she finds a permanent residence.
(11)(a) Acts of either party to maintain, preserve, develop, or expand; or to waste, neglect, devalue or convert the marital property or divisible property, or both, during the period after separation of the parties and before the time of distribution.
Defendant/Wife has been forced to spend the money she took from the CD to pay certain regular living expenses (for which Plaintiff/Husband was providing no support) and to defend herself in this protracted litigation. Defendant/Wife has had to pay in excess of Sixty Thousand Dollars and no/100 ($60,000) in noncompensable expert witness fees (only the trial time for with [sic] Mr. McDonald, Ms. Phillips, and Mr. Mitchell is compensable). Defendant/Wife will have incurred over Two Hundred Thousand Dollars and no/100 ($200,000) to try the issues in this case in the court system.
(12) Any other factor which the court finds to be just and proper.
Plaintiff/Husband is requesting that this Court award him all of the significant marital assets and allow him to enjoy all that he enjoyed during the marriage and more. All the while, Defendant/Wife has struggled to meet him on an even playing field and has not been allowed to enjoy a fraction of what she enjoyed during the marriage.
Plaintiff/Husband has not been fully cooperative in the process of valuing his interest in T& Z. As a result, Defendant/Wife has had to spend substantial amounts of time and money she does not have trying to get to the truth about Plaintiff/Husband's business and future revenue potential. The trial itself has been time-consuming and expensive on all levels for Defendant/Wife. Plaintiff/Husband is being represented by Ms. Wallace, hislong [sic] time friend,. [sic] Plaintiff/Husband testified that to date that [sic] he has only paid Ms. Wallace Fifty Thousand Dollars and no/100 ($50,000), which the Court notes (from having first hand experience of Ms. Wallace's hourly rate and attorney's fess [sic] ...

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