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Ward v. Ward

Court of Appeals of North Carolina

March 7, 2017

ALONZA H. WARD, JR. and MARIE W. WARD, Plaintiffs,
v.
LAURA C. WARD, Defendant.

          Heard in the Court of Appeals 9 February 2017.

         Appeal by defendant from order entered 5 February 2016 by Judge Robert F. Johnson in Dare County, No. 15 SP 13 Superior Court.

          Phillip H. Hayes, Jr. and Bradford J. Lingg for defendant-appellant.

          Aldridge, Seawell & Hudspeth, LLP, by Paddison P. Hudspeth and Laura M. Twichell, for plaintiffs-appellees.

          MURPHY, Judge.

         Laura Ward ("Laura") appeals from the 5 February 2016 Order partitioning real property. She contends that the trial court erred in concluding that an implied-in-fact contract did not arise through the conduct of the parties over the fifteen years preceding the filing of the petition to partition. She also argues that the trial court erred in failing to apply principles of equity relating to partitions. We disagree, and accordingly affirm the ruling below.

         Factual Background

          Alonza Ward, Jr. ("Alonza") and Laura had been married for nearly six years when in 1973 they purchased as tenants by the entirety the property at issue - 2010 Edenton Street, Kill Devil Hills, North Carolina. At some point thereafter, Alonza had an affair with his current wife, Marie Ward ("Marie"). Alonza and Laura separated in 2000, and Laura continued to live in the home at the Edenton Street address with the couple's minor son. During that time, Laura paid all maintenance costs and property taxes associated with the home without support or contribution from Alonza. Alonza and Laura divorced in 2006 and share the property as tenants in common.

         Between the time of their separation and divorce proceedings, Laura's lawyers sent three different letters to Alonza, proposing, inter alia, that he agree to convey all rights in the property to her. However, Alonza never responded to those letters, nor did he sign any document acknowledging their terms.

         As part of their divorce proceedings in 2006, both parties sought equitable distribution of the marital estate. Laura sought an unequal distribution in her favor on the grounds that (1) she alone bore the expenses associated with the maintenance of the property after the couple's separation; and (2) Alonza abandoned the marital relationship. Their divorce was finalized on 6 July 2006, but Alonza's and Laura's claims for equitable distribution remained pending.

         On 9 May 2007, the trial court scheduled an equitable distribution pretrial conference for 31 July 2007 and ordered Alonza and Laura to submit equitable distribution inventory affidavits by specified dates - 11 June 2007 for Alonza and 12 July 2007 for Laura. The trial court specifically noted that failing to file those affidavits or being unprepared to proceed at the pretrial conference would result in dismissal of the parties' claims for equitable distribution. On 9 June 2007, Alonza voluntarily dismissed his equitable distribution claim. Neither party filed an equitable distribution inventory affidavit or appeared for the pretrial conference. However, on 30 August 2011, Laura moved for summary judgment on her claim for unequal equitable distribution. Ultimately, Laura's claim was dismissed for failure to comply with the trial court's mandated deadlines. Laura appealed that decision to this Court, and we affirmed the dismissal.[1]

         On 21 January 2015, Alonza and Marie jointly petitioned the Dare County Clerk of Superior Court for a partition by sale of the property, with the proceeds therefrom to be divided in proportion to Laura's and Alonza's respective interests in the home. Laura's response to the petition included a motion to dismiss Marie from the petition; a counterclaim for offset of the expenses she incurred maintaining the property; and affirmative defenses of waiver of the right to partition as well as estoppel. Specifically, Laura contended that Alonza waived his interest in the property through an implied-in-fact contract providing that she would remain in the home after he abandoned their marital relationship and property, and further that he should be estopped from violating his own agreement.

         On 13 August 2015, the Dare County Clerk of Superior Court issued a ruling that Laura was not entitled to reimbursement from Alonza for maintenance and repairs, but should be compensated for the property taxes she paid. The Clerk also granted Alonza and Marie's petition, ordering the property be sold by private sale and the proceeds therefrom divided equally between Alonza and Laura. On 24 August 2015, Laura appealed the Clerk's order to the Dare County Superior Court.

         On 19 November 2015, the Superior Court conducted a de novo hearing at which it considered testimony from Alonza, Laura, and their daughter, Christine Gray. On 5 February 2016, the trial court likewise ordered the property be partitioned by sale, with the proceeds equally divided between Alonza and Laura. The trial court also determined that Laura was entitled to reimbursement of one-half of all maintenance costs and property taxes she paid on the property since 6 July 2006. The trial court based this conclusion on the finding that there was neither a written agreement, nor conduct between the parties, that would give rise to either an implied-in-fact contract to transfer ownership of the property or to waive Alonza's right to partition. Laura timely appealed the order of partition to this Court.

         Analysis

          I. 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 those findings support the conclusions of law and ensuing judgment. Cartin v. Harrison, 151 N.C.App. 697, 699, 567 S.E.2d 174, 176, disc. review denied, 356 N.C. 434, 572 S.E.2d 428 (2002). Competent evidence is evidence "that a reasonable mind might accept as adequate to support the finding." Forehand v. Forehand, 238 N.C.App. 270, 273, 767 S.E.2d 125, 128 (2014) (citation and quotation marks omitted). Upon determining that there is competent evidence to support the trial court's findings, this Court is bound by the trial court's findings of fact, even if there is evidence in the record that would sustain findings to the contrary. Hensgen v. Hensgen, 53 N.C.App. 331, 335, 280 S.E.2d 766, 769 (1981).

         II. Implied-in-Fact Contract

         Laura first argues that the trial court's finding that there was no implied-in-fact contract between her and Alonza is not supported by competent evidence. In particular, she takes issue with a portion of the court's twelfth finding of fact. In pertinent part, that finding states:

Having considered the evidence presented and having reviewed the cases tendered by counsel for both parties, the Court finds that the cases submitted by Respondent where the Court has upheld a contract implied in fact are not applicable here because those cases are factually distinguishable. In those cases finding a contract implied in fact there has been actual conduct or some written agreement between the parties. If there was an agreement that at least impliedly modified and limited the right of partition, such an implied agreement arose from some written agreement between the parties. In this case, there is no written agreement signed by the parties that implied any agreement between the parties to waive the right to partition or to transfer ownership of the property. There was no particular conduct or action taken by either party that suggests an implied in fact contract to waive partition or transfer ownership. Rather, there were actions taken by both parties contrary to an implied agreement and indicative of a continuing dispute between the parties concerning the division of the property. . . . It appears, by greater weight of the evidence, that there was no agreement between the parties concerning the division of the property.[2]

         Laura contends the trial court's assertion that "a petition to partition can only be denied if there is some written agreement between the parties" is incorrect. She also disagrees with the trial court's supposition that a contract implied-in-fact did not arise pursuant to the parties' conduct over the fifteen years preceding the filing of the petition to partition.

         As a preliminary matter, Laura misapprehends the trial court's finding. The trial court does not state that a petition to partition will be denied only if a written agreement exists between the parties. Instead, it correctly identifies two means of establishing a contract implied-in-fact: "[A]ctual conduct or some written agreement between the parties." (Emphasis added). The trial court then went on to analyze both grounds before it ultimately found that there was neither written agreement nor ...


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