Small v. Small , 107 N.C. App. 474 ( 1992 )

HEDRICK, Chief Judge.

In Paradise Lost John Milton described Hell as “confusion worst confounded.” This proceeding, we dare not call it a case or a cause, has confused and confounded the parties, the lawyers and the trial judge. Now it confounds us. Despite the obviously well intentioned efforts of the trial lawyers and the trial court, the focus of this legal proceeding has become lost within the complex details of the financial affairs of the parties. The judgment itself as well as the errors assigned thereto by the parties on appeal reflects the loss of direction by all involved.

In a trial without a jury, it is the duty of the trial judge to resolve all issues raised by the pleadings and the evidence by making findings of fact and drawing therefrom conclusions of law upon which to base a final order or judgment. G.S. § 1A-1, Rule 52. See Rosenthal’s Bootery, Inc. v. Shavitz, 48 N.C. App. 170, 268 S.E.2d 250 (1980); Associates, Inc. v. Myerly & Equipment Co. v. Myerly, 29 N.C. App. 85, 223 S.E.2d 545, disc. review denied and appeal dismissed, 290 N.C. 94, 225 S.E.2d 323 (1976). When all issues are not so resolved by the trial court, this Court has no option other than to vacate the order and remand the cause to the trial court for completion. See Rosenthal’s Bootery v. Shavitz, 48 N.C. App. at 173, 268 S.E.2d at 251; Davis v. Enterprises and Davis v. Mobile Homes, 23 N.C. App. 581, 209 S.E.2d 824 (1976).

The difficulty in this proceeding is determining what issues, if any, are raised by defendant’s counterclaims, the responses of plaintiff and the third-party defendant, and the evidence presented at trial. Defendant alleges an interest in various items of personal property set forth in the pleading and also in various improved and unimproved parcels of real estate titled in the name of the corporation or in the name of plaintiff. Defendant thereafter prayed the court for “a division of all assets belonging to the parties under a theory of contract.” Plaintiff prayed the court “[t]hat the interest of the Plaintiff and Defendant be first determined according to the separation agreement and the post[-] nuptial agreement,” and Aljo requested “only that the appropriate division be determined in accordance with the contract made and entered into between the Third[-] party Plaintiff and the Thirdf-] party Defendant.”

The evidence presented at trial, however, attempted only to demonstrate each party’s contention as to defendant’s percentage of ownership of the parcels of real property based upon her capital contributions throughout the years of the marriage between plaintiff and defendant. The judgment reflects only the evidence presented. The trial court struggled to comprehend the accountings of the expert testimony and the result of that struggle was simply the court’s declaration of the various percentages of personal funds expended by defendant in relation to those expended by plaintiff during the course of the marriage. There was no effort by the trial court to finally determine any issue between these parties. There was no determination of value or of possessory rights, and there was no division of assets either in kind or by required purchase. There simply is no final order or judgment presented for our review.

We cannot and we will not undertake to try this case for the parties. We cannot and we will not attempt to resolve on appeal that which is properly resolved in the trial court both prior to an actual trial of the cause and during such trial. Upon remand, we admonish the parties to closely examine and clarify the claims being put before the court for redress and to carefully consider the remedies available.

As we find that the findings of fact and conclusions of law set forth in the judgment of the District Court do not finally resolve the issues raised in this cause, the judgment is vacated and the cause remanded to the District Court for further proceedings in accordance with the laws of this State.

Vacated and remanded.

Judges Lewis and Wynn concur.