Heard
in the Court of Appeals 14 January 2019.
Appeal
by Respondent from judgment entered 10 January 2018 by Judge
James G. Bell in Superior Court, Cumberland County No. 16 SP
700.
No
brief submitted by Petitioner-Appellee.
McCoy
Wiggins PLLC, by Richard M. Wiggins, for
Respondent-Appellant.
MCGEE,
CHIEF JUDGE.
I.
Facts
Stephen
Tarr ("Petitioner") and Melissa Zalaznik
("Respondent") made a $245, 000.00 cash purchase of
a lot with a house ((the "House") and, together
with the lot, (the "Property")) in Fayetteville on
28 October 2013. Petitioner provided $145, 000.00 of the
purchase price, and Respondent contributed $100, 000.00. The
deed conveying the Property to Petitioner and Respondent
noted that each was unmarried, and that the Property was
being conveyed to them "as joint tenants with the right
of survivorship[.]" Petitioner and Respondent lived
together in the House as an unmarried couple for a few years.
The relationship between Petitioner and Respondent
deteriorated, and the record indicates that Petitioner moved
out of the House in 2016. Respondent continued to reside in
the House for more than a year after Petitioner's
departure.
Petitioner
filed a "Petition to Partition" (the
"petition") with the Clerk of Superior Court,
Cumberland County (the "Clerk"), on 10 May 2016.
See N.C. Gen. Stat. § 46-3 (2017) ("One or
more persons claiming real estate as joint tenants or tenants
in common . . . may have partition by petition to the
superior court."). Petitioner stated that, although he
"desire[d] to hold fifty percent . . . interest in [the
Property] in severalty," he was requesting a partition
by sale, pursuant to N.C. Gen. Stat. § 46-22(a)-arguing
that actual partition of the Property could not "be made
without injury to the parties . . . and it [wa]s necessary
that the court order a sale for partition among the tenants
in common." See N.C. Gen. Stat. § 46-22(a)
(2017).
Respondent
answered the petition on 10 June 2016 and, though she did not
specifically argue against a partition by sale, Respondent
stated:
[A]lthough the parties to this action are tenants in common
to the real estate described in the [p]etition [the
Property], it is doubtful that at a public sale of the
[Property it] could be sold at its fair market value and
Respondent, pursuant to N.C. G.S. § 46-22.1, requests
that the [trial court] order the parties mediate before an
order is entered requiring a public sale of the [Property].
See N.C. Gen. Stat. § 46-22.1(b) (2017)
("When a partition sale is requested, the court or the
clerk may order mediation before considering whether to order
a sale."). Respondent further asked "[f]or such
equitable relief as the [trial court] might deem proper to
protect the interest of Respondent." The record does not
include any evidence that mediation was ordered, and the
petition was heard by the Clerk, who thereafter entered an
order on 17 October 2016. The Clerk found as fact that both
Petitioner and Respondent "believe[d] that an actual
partition of the [P]roperty [could not] be made without
substantial injury to the parties"; and that the
Property "should be sold for partition as provided in
N.C. G.S. § 46-28 and that a commissioner should be
appointed by the [trial court] for that purpose."
See N.C. Gen. Stat. § 46-28(a) (2017)
("The procedure for a partition sale shall be the same
as is provided in Article 29A of Chapter 1 of the General
Statutes, except as provided herein."). The Clerk
appointed a commissioner (the "Commissioner") to
conduct a sale of the Property, and ordered that "the
proceeds, after payment of all costs, be distributed [to
Petitioner and Respondent] as by law provided[.]"
See N.C. Gen. Stat. §§ 46-7, 46-28, and
46-33 (2017)[1]
The
Commissioner filed a motion on 10 November 2016 to sell the
Property, and the Clerk entered an order granting the motion
to sell the Property on the same day. Neither the
Commissioner's motion nor the Clerk's order
specifically addressed how the proceeds of the sale would be
divided. The Commissioner conducted a sale of the Property,
and the highest offer was for a purchase price of $220,
000.00. The Clerk approved and confirmed the sale of the
Property on 7 June 2017, and ordered the Commissioner to
deliver title to the purchasers upon receipt of the purchase
price. Neither party appealed the order of confirmation of
sale and, therefore, it became a final order. N.C. Gen. Stat.
§ 46-28.1(f) (2017). After all costs had been deducted
from the sales proceeds, $192, 323.87 remained in the
Commissioner's account for distribution to Petitioner and
Respondent.
For
reasons not made clear by the record, the net proceeds of the
sale were not disbursed at the time the order of confirmation
became final. N.C. G.S. § 46-33 ("At the time that
the order of confirmation becomes final, the court shall
secure to each tenant in common, or joint tenant, his ratable
share in severalty of the proceeds of sale.").
Approximately four months after the sale of the Property,
Petitioner filed a "Supplemental Petition," on 5
October 2017, wherein he noted that "the proceeds
received from the sale of the property did not equate for
[Petitioner and Respondent] to recover their initial portion
of the purchase price [.]" Therefore, Petitioner
requested "that [the] net proceeds be divided and
apportioned pursuant to [the] initial contribution"
amounts provided by Petitioner and Respondent. Specifically,
Petitioner requested that he receive fifty-nine percent of
the net proceeds and that Respondent receive forty-one
percent-in order to correspond with Petitioner's
contribution of $145, 000.00 to the purchase of the Property
compared with Respondent's $100, 000.00 contribution.
The
Clerk agreed with Petitioner that the net proceeds from the
sale of the Property should be divided in proportion to the
contributions made by Petitioner and Respondent toward the
purchase of the Property. Therefore, the Clerk ordered a
fifty-nine percent to forty-one percent distribution in favor
or Petitioner. Respondent appealed, and the matter was heard
in superior court. By judgment entered 10 January 2018, the
trial court conducted a de novo review, agreed with
the decision of the Clerk, and ordered the same fifty-nine
percent to forty-one percent division of the net proceeds in
Petitioner's favor. Respondent appeals.
II.
Standard of Review
"An
action for partition under [Chapter 46] is a special
proceeding. When such action is appealed from the clerk to
the superior court 'for any ground whatever the trial
court has the authority to consider the matter de
novo." Jenkins v. Fox, 98 N.C.App. 224, 226, 390
S.E.2d 683, 685 (1990) (citations omitted); see also
N.C. Gen. Stat. § 46-1 (2017). When the trial court acts
as the trier of fact:
[T]he standard of review on appeal is whether there was
competent evidence to support the trial court's findings
of fact and whether its conclusions of law were proper in
light of such facts. Findings of fact by the trial court in a
non-jury trial have the force and effect of a jury verdict
and are conclusive on appeal if there is evidence to support
those findings. A trial court's conclusions of law,
however, are reviewable de novo.
"[W]hether a partition order and sale should issue is
within the sole province and discretion of the trial judge
and such determination will not be disturbed ...