Lund v. Lund , 252 N.C. App. 306 ( 2017 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA16-813
Filed: 21 March 2017
Buncombe County, No. 13 CVD 1382
JEANNE LUND, Plaintiff,
v.
ROBERT LUND, Defendant.
Appeal by plaintiff from order entered 1 April 2016 by Judge Ward D. Scott in
Buncombe County District Court. Heard in the Court of Appeals 8 March 2017.
Mary Elizabeth Arrowood for plaintiff-appellant.
Ana M. Prendergast and Siemens Family Law Group, by Jim Siemens, for
defendant-appellee.
TYSON, Judge.
Plaintiff, Jeanne Lund (“Wife”), appeals from the trial court’s revised equitable
distribution order, entered after this Court’s remand for further findings of fact. We
affirm.
I. Background
Wife and Defendant (“Husband”) married on 14 February 1997, separated on
5 January 2013, and divorced on 6 February 2014. Prior to the date of absolute
divorce, Wife had sued Husband for equitable distribution and sought an unequal
distribution of the marital estate. Husband answered and counterclaimed for an
LUND V. LUND
Opinion of the Court
equitable and equal distribution of the marital estate. The matter came before the
trial court and was heard during a four-day trial. On 11 August 2014, the trial court
entered an equitable distribution order, which divided the marital estate equally.
The trial court heard testimony regarding the value of the former marital
residence located at 403 Sugar Hollow Drive, Fairview, North Carolina. Three
licensed real estate appraisers testified as expert witnesses regarding the fair market
value of the marital residence. Two of the appraisers testified on behalf of Wife. Mark
Morris, Husband’s witness, opined $263,000.00 was the value of the marital residence
on the date of separation.
The court found Mr. Morris was the only appraiser to testify and opine to the
value of the marital residence on the date of separation. The court found Mr. Morris’s
testimony as credible, determined $263,000.00 to be the value of the marital
residence, and distributed that property to Husband.
The trial court further found that neither party had presented evidence
regarding the value of the marital home at the date of distribution. The court
concluded there was no divisible property in connection with the marital home, since
neither party had presented evidence tending to show any increase or decrease in
value of the home during the time period between the parties’ separation and
distribution of the property.
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Opinion of the Court
Wife appealed the 11 August 2014 order to this Court. This Court reversed the
trial court’s finding “that neither party introduced evidence of divisible property
associated with any passive increase (or decrease) in value of the marital home during
the period of separation[.]” Lund v. Lund, __ N.C. App. __, __, 779 S.E.2d 175, 184
(2015) (“Lund I”). This Court remanded the issue to the trial court “for more findings
on this issue,” and to revise the order, if necessary, to achieve an equitable division
of the parties’ marital property. Id. The trial court did not hear, receive, or consider
further evidence upon remand, and entered a revised order on 1 April 2016. Wife
appeals.
II. Issues
Wife argues the trial court erred by: (1) finding Wife’s evidence on the value
of the marital home was speculative and not credible; (2) failing to value and
distribute, as divisible property, the increase in value of the marital home from the
date of separation through the date of trial; (3) failing to properly consider the
unequal distributional factors raised by Wife and to make appropriate findings of fact
with regard to those factors; and, (4) failing to conduct a further hearing on remand
as to the date of distribution valuations and unequal distribution factors.
III. Standard of Review
Equitable distribution is vested in the discretion of the trial
court and will not be disturbed absent a clear abuse of that
discretion. Only a finding that the judgment was
unsupported by reason and could not have been a result of
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competent inquiry, or a finding that the trial judge failed
to comply with the statute, will establish an abuse of
discretion.
Wiencek-Adams v. Adams, 331 N.C. 688, 691, 417 S.E.2d 449, 451 (1992) (citations
omitted). The trial court’s findings of fact are conclusive on appeal, if supported by
competent evidence. See Alexander v. Alexander, 68 N.C. App. 548, 552, 315 S.E. 2d
772, 776 (1984).
N.C. Gen. Stat. § 50-20 requires the trial court to conduct a three-step analysis
when making an equitable distribution of the marital assets: (1) classify the property,
(2) calculate the net value of the property, fair market value less encumbrances, and
(3) distribute the property in an equitable manner. See Cable v. Cable, 76 N.C. App.
134, 137, 331 S.E. 2d 765, 767, disc. review denied, 315 N.C. 182, 337 S.E. 2d 856(1985). An equal division of the marital property is required unless, in the exercise of
its discretion, the court determines an equal distribution is inequitable. N.C. Gen.
Stat. § 50-20(c) (2015).
IV. Value of the Marital Residence
Wife argues the trial court abused its discretion by finding her testimony
regarding the value of the marital residence not credible, and by failing to value and
distribute the increase in value of the marital home between the dates of separation
and distribution. We disagree.
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A passive increase or decrease in the value of the marital residence between
the date of separation and date of distribution is divisible property and must be
distributed by the trial court. N.C. Gen. Stat. § 50-20(b)(4)(a) (2015). Marital property
is valued as of the date of separation, while divisible property is valued as of the date
of distribution. N.C. Gen. Stat. § 50-20(b) (2015). The trial court’s initial order stated
that no evidence was presented regarding the value of the marital home as of the date
of distribution. In her prior appeal, Wife argued she did, in fact, present evidence
through her own opinion that the marital home was valued at $300,000.00 on the
date of distribution. See Lund I, __ N.C. App. at __, 779 S.E.2d at 182.
The trial court found none of the three appraisers had opined to the value of
the marital home on the date of distribution. The trial court addressed Wife’s
testimony in its revised order. The court found that Wife had testified she “would
like to say” the value of the home was between $290,000.00 and $300,000.00 at the
time of separation, and at the time of trial “she would like to say [the value was]
closer to $300,000.00.” The trial court declined to “choose from a range of values and
[found] Plaintiff’s testimony to be speculative.” The court also specifically determined
Wife’s testimony and estimates of the value of the marital home was speculative and
not credible. The court found “[n]either party presented credible evidence of a date
of distribution value which differs from the date of separation value relied upon by
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the Court.” The court again concluded no divisible property existed to distribute with
regard to the marital home.
As our Court recognized in Lund I, “a finding by the trial court of ‘no credible
evidence’ being presented on the issue would not have been error, since the trial court
is free to give any weight (or no weight) to any evidence presented.” Id. (citing Bodie
v. Bodie, 221 N.C. App. 29, 38, 727 S.E.2d 11, 18 (2012)) (emphasis original). Upon
remand, the trial court made findings regarding Wife’s testimony of the value of the
marital residence, and specifically found her testimony was not credible. This
determination rests within the discretion, duty, and prerogative of the trial court,
and will not be disturbed on appeal, when supported by findings of fact. Id.Myron Creson, one of the appraisers called by Wife, presented the court with
a written report stating his opinion of the value of the marital residence as of 23
January 2014, approximately four months prior to the commencement of trial. Wife
argues Mr. Creson’s appraisal was evidence of the increased value of the property at
the time of trial. The trial court made no finding on the specific value amount Mr.
Creson had opined. The court found “[n]o appraiser called by either party provided
an opinion of the date of distribution value of the marital home.” The equitable
distribution order was entered in August 2014, approximately eight months after the
date of Mr. Creson’s appraisal. Apparently, the trial court determined Mr. Creson’s
opinion was too remote in time to be considered a date of distribution value. Wife has
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failed to show this determination was manifestly unsupported by reason to amount
to an abuse of discretion. Wiencek-Adams, 331 N.C. at 691, 417 S.E.2d at 451. Wife’s
arguments related to the increased value of the marital home are overruled.
V. Consideration of Distributional Factors
Wife argues the trial court failed to properly consider distributional factors she
presented at trial and failed to make appropriate findings of fact with regard to these
factors.
In her brief, Wife sets forth, in detail, twelve distributional factors she claims
were not properly considered by the trial court in making its equal distributive award.
The only material changes to the trial court’s order on remand are discussed above
and pertain to the value of the marital residence.
In her initial appeal before this Court, Wife argued the trial court erred by
classifying, valuing, and distributing certain marital and divisible property, and by
determining an equal distribution of the marital property was equitable. See Lund I,
__ N.C. App. at __, 779 S.E.2d at 177.
A review of Wife’s appellant brief before this Court in Lund I shows Wife made
the identical argument before this Court in her previous appeal. She set forth, word
for word, the same factors she now claims support an unequal distribution award.
This Court rejected Wife’s argument in Lund I, and held the trial court did not abuse
its discretion in determining an equal distribution was equitable. __ N.C. App. at __,
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779 S.E.2d at 178. Wife’s attempt to have this Court reconsider an issue previously
considered and ruled upon is improper and dismissed. See Lea Co. v. N.C. Bd. of
Transp., 323 N.C. 697, 699, 374 S.E.2d 866, 868 (1989) (“A decision of this Court on
a prior appeal constitutes the law of the case, both in subsequent proceedings in the
trial court and on a subsequent appeal.”).
VI. Hearing After Remand
Wife argues a hearing was required upon remand in April 2016 to determine
values of the property and distributional factors at that time, and the trial court erred
by failing to conduct a further hearing. We disagree.
The trial court followed this Court’s mandate to consider and make findings
upon remand to determine the existence of divisible property with regard to the
marital residence. The trial court considered the competent evidence it had received
at trial and made further findings. No further hearing was required to address the
mandate of this Court. In Lund I, this Court affirmed the trial court’s determination
that an equal division of the marital estate was equitable. Lund I included no
mandate to the trial court to consider additional evidence on that issue. Wife’s
argument is overruled.
VII. Conclusion
Wife has failed to show the trial court abused its discretion by determining
Wife’s testimony was not credible regarding the date of distribution value of the
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marital residence and by finding no evidence showed the value of the marital
residence on the date of distribution. The trial court was not mandated in Lund I to
hold a new hearing upon remand.
Wife’s argument pertaining to the trial court’s consideration of distributional
factors and conclusion that an equal division is equitable was raised and considered
during Wife’s initial appeal in Lund I and is dismissed. The revised equitable
distribution order entered by the trial court upon remand is affirmed. It is so ordered.
AFFIRMED.
Judges ELMORE and Judge DIETZ concur.
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