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Sluder v. Sluder

Court of Appeals of North Carolina

March 19, 2019

JAMES BRYAN SLUDER, Plaintiff,
v.
MARILYN W. SLUDER, Defendant.

          Heard in the Court of Appeals 29 January 2019.

          Appeal by defendant from order entered 4 April 2018 by Judge Andrea E. Dray in Buncombe County District Court No. 11 CVD 3725.

          Siemens Family Law Group, by Diane K. McDonald, for plaintiff-appellee

          Charles R. Brewer for defendant-appellant

          BRYANT, JUDGE.

         Defendant Marilyn W. Sluder appeals from the trial court's order on equitable distribution concluding that a refinanced mortgage was a marital debt to be paid equally by defendant and plaintiff James Bryan Sluder. Where the findings of fact are supported by competent evidence and support the conclusions of law, we affirm the trial court's ruling.

         Plaintiff and defendant were married on 25 June 1994 until they separated on 1 July 2007. An absolute divorce was entered on 29 October 2012. During the course of their marriage, the parties acquired several items of property, including real estate properties. One of the properties was a residential property on Panorama Drive. On the date of separation, the parties had an existing mortgage of $207, 780.21 on the Panorama Drive property.

         Prior to any court involvement, the parties entered into a mutual separation and property settlement agreement regarding the division of their marital assets and debts on 28 February 2008. The separation agreement listed, inter alia, the Panorama Drive property as marital property "formerly used by the parties as their family residence" and noted that the parties agreed to be "equally responsible for mortgage payments." The parties also agreed that plaintiff "shall be allowed to reside in home at [the Panorama Drive property] and be responsible for utilities, general maintenance, keeping the house clean and in market ready condition" until the date of sale.

         On 25 June 2008, four months after the parties executed the separation agreement, plaintiff refinanced the existing mortgage on the Panorama Drive property to pay off the parties' marital debts. Plaintiff filed a complaint seeking an absolute divorce and equitable distribution on 18 July 2011. Defendant filed an answer and a counterclaim for equitable distribution. The trial court addressed the issue of equitable distribution in three separate orders; collectively serving as the trial court's equitable distribution judgment.

         On 2 March 2012, the trial court entered an order for partial settlement for equitable distribution, in which the parties agreed to list the Panorama Drive property for sale and specifically set out that plaintiff agreed "to complete the staining of the deck, paint[] the hallway and pressure wash of the deck and other small repairs" in exchange for defendant's agreement "to make stain and paint available for the above repairs."

         On 10 July 2012, the trial court entered a consent judgment for equitable distribution, in which the parties agreed to list the Panorama Drive property. Defendant also agreed to pay plaintiff $22, 500, which "shall be paid first after the payment of the ordinary expenses of sale of real estate from the proceeds of the sale of the Panorama [Drive] property. The subsequent percentage division of the proceeds of the Panorama [Drive] property remains undecided by the parties and shall be an issue for the [trial c]ourt."

         On 1 October 2012, the trial court entered a judgment and order for equitable distribution. The parties "had agreed that each would pay one-half of the mortgage[] on [the Panorama Drive property]" and the trial court ordered them to split the proceeds upon sale of the Panorama Drive property after payment of reasonable expenses--"[p]laintiff [will] receiv[e] 47% of the proceeds and [d]efendant [will] receiv[e] 53% of the proceeds[.] . . . [T]his result in part is based on the fact that the parties have agreed that [d]efendant can list the property as a realtor and will receive at least 3% for the sale price." The trial court permitted defendant, who had experience in the real estate business, to handle the sale of the Panorama Drive property, which included the sole discretion of setting the sale price.

         In early 2017, the parties were in dispute involving the sale of the Panorama Drive property, and the trial court issued an order on 18 April 2017 allowing defendant and her mother to purchase the property. The contract was signed by the parties in May 2017. Defendant took possession of the property and paid one-half of the mortgage payments until September 2017. Although defendant had stopped making mortgage payments, she continued to reside at the property.

         A hearing was held before the trial court on 23 January 2018 to address whether the refinanced mortgage should be designated as a separate debt of plaintiff. On 20 March 2018, the trial court issued an "Order In the Cause" and concluded that "the refinanced debt on the Panorama Drive property was the refinance of a marital ...


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