Markham v. Markham , 53 N.C. App. 18 ( 1981 )

MORRIS, Chief Judge.

Plaintiff’s Appeal

All questions raised by this appeal are properly answered by a determination of whether the facts found by the court are supported by competent evidence and a determination of whether the facts so found are sufficient to support the conclusions of law made. Plaintiff does not contend that there were errors of law made, and she does not seek a new trial.

The court, sitting as the trier of facts, makes findings of fact which have the force and effect of a jury verdict, and its judgment will not be disturbed on appeal if there is any evidence to support its findings of fact and those findings support the judgment, even though the evidence might sustain findings to the contrary. Whitaker v. Earnhardt, 289 N.C. 260, 221 S.E. 2d 316 (1976); Williams v. Insurance Co., 288 N.C. 338, 218 S.E. 2d 368 (1975).

Plaintiff first assigns as error the court’s finding of fact No. 1, that the payments of $100 per week for 521 weeks was alimony, contending that the evidence requires a finding that it was a property settlement. We do not agree. We think the evidence, viewed as a whole, compels this finding. Plaintiff’s counsel, on 27 September 1972, wrote counsel for her husband, who, at that time had filed an action for absolute divorce based on separation for one year. For plaintiff, her counsel suggested that she was “prepared to file an answer for the purpose of bringing about a property settlement between the Plaintiff and Defendant and also providing for her support.” (Emphasis ours.) The letter proceeded to set out the requirements of plaintiff with respect to conveyances of real property and household furnishings and then said: “Pay to her the sum of $100.00 per week for the next 10 years for her support and maintenance." Answer was filed admitting the allegations of the complaint, and judgment was entered reciting as a part of the judgment “[t]hat the plaintiff, as a part of the agreed property settlement between the plaintiff and defendant, shall pay to the defendant for her sole support and maintenance the sum of One Hundred ($100.00) Dollars per week for a period of five hundred twenty-one (521) weeks, with the first payment of One Hundred ($100.00) Dollars due and payable on the 27th day of November, 1972, and a like weekly payment of One Hundred ($100.00) Dollars on the 1st day of each week thereafter for a total of five hundred twenty-one (521) weeks.” This was referred to as the executory portion of said settlement. There was evidence that plaintiff, in her deposition testimony, referred to the payments as alimony, and Harold Markham took a deduction for $1,800 on his 1973 income tax return for “alimony”. We believe that while the court might have found that the parties intended the payments to be property settlement, there is sufficient evidence to support the finding that they were alimony. Plaintiff properly concedes that if the payments are alimony, they terminate at the death of Harold Markham.

Next plaintiff contends that there was no sufficient evidence that Harold Markham had paid $2100 in alimony to plaintiff prior to his death. Plaintiff contends that the evidence supports no more than $1900. There was evidence of fifteen checks for $100 each from Harold Markham to plaintiff. There was also evidence that Harold deposited $400 into plaintiff’s bank account. Plaintiff does not question this. However, plaintiff does question the evidence with respect to the remaining $300. The evidence with respect to this is that “defendant’s Exhibit No. 5 is a check for $300.00 dated 20 February 1973, from Harold’s nephew, George Markham, made out to Mrs. Nelle Markham.” There is no evidence that the check was in payment of the alimony. Defendant’s evidence, as disclosed by defendant’s exhibit 3, for which defendant Rebecca Markham testified, was that of 20 February 1973, the alimony payments were current and remained current through 5 March 1973. Mrs. Rebecca Markham testified that she had “documents showing that the total received by Nelle L. Markham for alimony was $2100.00 during the years 1972 and 1973.” She did not specify what the documents were. We do not believe the evidence supports a finding of payments of $2100. The plaintiff does not question the $400 deposited into Nelle Markham’s account in November 1973. Finding of fact No. 2 is modified to the extent that the payments were $1900 and he was 165 weeks in arrears.

Next plaintiff urges that there is insufficient evidence to support the finding that Harold T. Markham lawfully assigned his interest in the two notes and deed of trust to Rebecca F. Markham. Again we disagree. There is evidence that the notes were assigned in June 1973. Plaintiff and Harold Markham were divorced in November 1972 and Harold Markham suffered a crippling stroke in December 1972, after which he was not able to work. At the time of the assignment he was indebted to Nelle Markham for alimony arrearage in an undisclosed amount which, according to the evidence for defendant, could not have exceeded $700 or $800. There is evidence that Harold Markham that year, in addition to the income from the notes, had income from the sale of land in Randolph County. There is also evidence that he thought his first wife had no further interest in the notes after the divorce, he having told the maker of one of the notes that he received them in the divorce settlement. There is evidence that he was not able to work, that his medical and other expenses were considerably more than his income, that his second wife paid most of his expenses, and that the notes were assigned to her because of money she had previously loaned to him and because of all the expenses incurred by reason of his illness. Plaintiff, in her brief, correctly sets out the elements of a fraudulent transfer of property. We simply do not agree that the evidence here requires the application of those elements, or any of them. We agree that the evidence supports the finding of fact. We are also of the opinion that there is sufficient evidence to support findings of fact Nos. 5, 6 and 7 to all of which plaintiff assigns error.

The conclusions of law based on the findings to which plaintiff excepts are supported by the findings, including conclusion of law No. 9, with the exception that conclusion of law No. 2 must be modified to show the indebtednes of Harold Markham to Nelle Markham on 6 May 1975 as $16,500 rather than $16,200. No. 1 in the decretal part of the judgment must also be so modified.

Defendant’s Appeal

Defendant, by her five assignments of error contends that the court should have found (1) that Nelle Markham had relinquished one-half of the proceeds from the two notes when she proposed a settlement which included no demand for the notes or any interest therein, and (2) that Harold Markham assigned to Rebecca the entirety of the two notes. The second question is necessarily answered by the first.

Defendant does not seek a new trial. As is true with plaintiffs appeal defendant contends the evidence was insufficient to support the findings which it assigns as error.

There is no evidence that Nelle Markham relinquished her interest in the notes (there is no dispute with respect to the conclusion of law No. 4 to the effect that prior to the divorce Nelle and Harold Markham each owned an one-half interest in the notes) except that Harold Markham thought she had and so told the maker of one of the notes. There is evidence that the notes were not included in the property settlement. There was evidence that other property was not included. There was also evidence that no agreement with respect to the division of property was ever executed, and that Harold Markham did not comply with the terms of the letter of plaintiffs attorney. The evidence is undisputed that Nelle Markham did not discuss the notes with her attorney and that she first became aware of her entitlement to a portion of the proceeds after the death of Harold Markham. There is evidence that she did not know how payment for the property was to be made, did not know the sales price for them, and did not see the notes and deeds of trust at the settlement in 1969. She did not realize during the divorce and afterwards that she was supposed to get one-half of the proceeds of the notes. It is quite clear that there is no evidence which would support a transfer of her interest in the notes to Harold Markham. On the contrary, the evidence does, we think, support the finding that at the time of the divorce she retained her one-half interest in the notes.

Holding, as we do — that the court’s findings and conclusions that any agreement between Nelle and Harold Markham did not refer to the notes, that Nelle did not relinquish her interest or transfer her interest to Harold and that the ownership was not modified by the property settlement — it follows that Harold Markham did not assign to Rebecca the entirety of the two notes.

The judgment of the trial court is modified in accordance with this opinion and affirmed.

Modified and affirmed.

Judges MARTIN (Harry C.) and HILL concur.