Foxx v. Foxx ( 2022 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
2022-NCCOA-223
No. COA21-346
Filed 5 April 2022
Catawba County, No. 16 CVD 1496
FRANCES SIGMON FOXX, Plaintiff,
v.
GARY DWAYNE FOXX, Defendant.
Appeal by defendant from Order entered 16 March 2021 by Judge Sherri W.
Elliott in Catawba County District Court. Heard in the Court of Appeals 11 January
2022.
LeCroy Law Firm, PLLC, by M. Alan LeCroy, for plaintiff-appellee.
Wesley E. Starnes for defendant-appellant.
GORE, Judge.
¶1 Defendant, Gary Dwayne Foxx, appeals from the trial court’s Equitable
Distribution Order, modifying the percentage of distribution of marital assets
following the first appeal to this Court. We vacate the Order and remand for further
findings of fact.
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Opinion of the Court
I. Factual and Procedural Background
¶2 Frances Sigmon Foxx (“plaintiff”) and defendant were married on 17 March
1995. In 1999, the parties formed Foxx Appraisals, Inc., primarily used for plaintiff’s
real estate appraisal business. In March 2011, defendant was injured while in the
course of his employment for the City of Lincolnton. Defendant filed worker’s
compensation and personal injury claims following his injury. Plaintiff and defendant
separated on 14 July 2014. Shortly after the parties separated, defendant settled his
workers’ compensation claim. A few months thereafter, he settled his personal injury
claim. Once in 2014 and once in 2015, Foxx Appraisals, Inc. made distributions as
payment to plaintiff for her work as a licensed appraiser for the company.
¶3 On 16 June 2016, plaintiff filed a complaint for divorce and equitable
distribution. Plaintiff and defendant were granted absolute divorce on 15 September
2016. On 4 January 2018, the trial court entered an Equitable Distribution Order
(“2018 Order”). Plaintiff and defendant subsequently appealed the 2018 Order. This
Court vacated the 2018 Order on the grounds that (1) the trial court’s findings ignored
undisputed evidence of two post-separation distributions from Foxx Appraisals, Inc.,
to the plaintiff, and (2) the trial court applied an incorrect legal standard to the
classification of the awards from the defendant’s workers’ compensation and personal
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Opinion of the Court
injury lawsuits. Foxx v. Foxx, 266 N.C. App. 617, __, 830 S.E.2d 700, __ (2019)
(unpublished).
¶4 This Court gave the trial court discretion to hear additional evidence, but the
trial court elected to not conduct any further proceedings and issued a Remanded
Equitable Distribution Order on 19 February 2021. On 25 February 2021, the trial
court granted a Rule 60 Motion filed by the plaintiff to correct a clerical error in the
19 February 2021 Remanded Equitable Distribution Order. On 16 March 2021, the
trial court entered an Amended Equitable Distribution Order (“2021 Order”). The
trial court modified the percentage of equitable distribution of martial and divisible
assets between the parties from the 2018 Order to the 2021 Order, increasing
plaintiff’s share from sixty percent to seventy-five percent and decreasing defendant’s
share from forty percent to twenty-five percent. Defendant timely filed and served
notice of appeal.
II. Analysis
A. Modification of the Percentage of Equitable Distribution
¶5 Defendant first contends that the trial court lacked the authority to modify the
unequal percent distribution of marital assets between the parties following the first
appeal because the issue was not raised. We disagree.
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¶6 “[A]s a general rule when an appellate court passes on a question and remands
the cause for further proceedings, the questions there settled become the law of the
case, both in subsequent proceedings in the trial court and on subsequent appeal . . .
.” Hayes v. Wilmington, 243 N.C. 525, 536, 91 S.E.2d 673, 681-82 (1956) (citations
omitted). “[O]nce a panel of the Court of Appeals has decided a question in a given
case that decision becomes the law of the case and governs other panels which may
thereafter consider the case.” Carpenter v. Carpenter, 245 N.C. App. 1, 8, 781 S.E.2d
828, 835 (2016) (quoting North Carolina Nat’l Bank v. Virginia Carolina Builders,
307 N.C. 563, 567, 299 S.E.2d 629, 631-32 (1983)); see also Transp., Inc. v. Strick
Corp., 286 N.C. 235, 239, 210 S.E.2d 181, 183 (1974).
In North Carolina courts, the law of the case applies only
to issues that were decided in the former proceeding,
whether explicitly or by necessary implication, but not to
questions which might have been decided but were not. The
doctrine of the law of the case contemplates only such
points as are actually presented and necessarily involved
in determining the case.
Wetherington v. NC Dep’t of Pub. Safety, 270 N.C. App. 161, 173, 840 S.E.2d 812, 822
(2020) (cleaned up).
¶7 “On the remand of a case after appeal, the mandate of the reviewing court is
binding on the lower court, and must be strictly followed, without variation and
departure from the mandate of the appellate court.” Bodie v. Bodie, 239 N.C. App.
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281, 284, 768 S.E.2d 879, 881 (2015) (quoting Collins v. Simms, 257 N.C. 1, 11, 125
S.E.2d 298, 306 (1962)). This Court vacated and remanded the matter “for the trial
court to make additional findings of fact and, if appropriate, corresponding
conclusions of law.” Foxx, 266 N.C. App. at __, 830 S.E.2d at __. When this Court
remands an equitable distribution order for more specific findings of fact, that
remand authorizes the trial court to recalculate related portions of the order that are
impacted by the findings made on remand if necessary. See Bodie, 239 N.C. App. at
285, 768 S.E.2d at 882.
¶8 In the case sub judice, the issue of percent distribution of marital property was
not a question raised on appeal, nor was it discussed or otherwise adjudicated, either
explicitly or implicitly by the prior panel of this Court. Thus, it did not become the
law of the case. Moreover, on remand, the trial court was required to evaluate specific
evidence and make findings of fact that would affect the corresponding conclusion of
law regarding the net value of marital assets. Therefore, the trial court had the
authority to reconsider the percentage of distribution.
B. Required Sufficient Findings of Fact
¶9 Defendant next argues that the trial court erred by failing to make additional
findings of fact to support the change of equitable distribution percentage from the
2018 Order to the 2021 Order. We agree.
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¶ 10 We review the trial court’s distribution of property for an abuse of discretion.
Carpenter, 245 N.C. App. at 13, 781 S.E.2d at 838 (2016) (citations and quotations
omitted); see also White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985).
The standard of review on the trial court’s classification in
an equitable distribution of property is well settled: when
the trial court sits without a jury, the 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.
Carpenter, 245 N.C. App. at 11, 781 S.E.2d at 837 (cleaned up). “A trial court may be
reversed for abuse of discretion only upon a showing that its actions are manifestly
unsupported by reason.” White, 312 N.C. at 777, 324 S.E.2d at 833.
¶ 11 There are twelve factors for the trial court to consider when determining
whether unequal distribution of marital property and divisible property is equitable.
See N.C. Gen. Stat. § 50-20(c) (2021). “[I]f evidence is presented as to several statutory
factors, the trial court must make findings as to each factor for which evidence was
presented.” Rosario v. Rosario, 139 N.C. App. 258, 261, 533 S.E.2d 274, 276 (2000)
(citations omitted). “The weight given each factor, however, is within the discretion
of the trial court, and the trial court is not required to specifically state the weight
given each factor to ‘support the determination’ an equitable distribution has been
made.” Friend-Novorska v. Novorska, 143 N.C. App. 387, 395, 545 S.E.2d 788, 794
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(2001) (quoting White, 312 N.C. at 777-78, 324 S.E.2d at 833). “Additionally, the
weight given each factor by the trial court must be upheld on appeal absent a showing
of abuse of discretion.” Id. (citation omitted). “[A] finding stating that the trial court
has merely given ‘due regard’ to the section 50-20 factors is insufficient as a matter
of law.” Rosario, 139 N.C. App. at 262, 533 S.E.2d at 276 (2000) (citations omitted).
¶ 12 “Findings of fact are sufficient to ‘support the determination’ an equitable
division has been made when findings of fact have been made on the ultimate facts
at issue in the case, and the findings of fact show the trial court properly applied the
law in the case.” Friend-Novorska, 143 N.C. App. at 395, 545 S.E.2d at 794 (quoting
Armstrong v. Armstrong, 322 N.C. 396, 405-06, 368 S.E.2d 595, 600 (1988)). “The
purpose for the requirement of specific findings of fact that support the court’s
conclusion of law is to permit the appellate court on review ‘to determine from the
record whether the judgment – and the legal conclusions that underlie it – represent
a correct application of the law.’” Patton v. Patton, 318 N.C. 404, 406, 348 S.E.2d 593,
595 (1986) (quoting Coble v. Coble, 300 N.C. 708, 712, 268 S.E.2d 185, 189 (1980)).
See also Armstrong, 322 N.C. at 405, 368 S.E.2d at 600.
¶ 13 In the instant case, the trial court did not conduct any further proceedings on
remand before filing the 2021 Order. Using the evidence in the existing record, which
the trial court was permitted to do in its discretion from this Court’s prior opinion,
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the trial court found the required specific findings of fact regarding Foxx Appraisal,
Inc.’s distributions to the plaintiff and the defendant’s lawsuit awards. These
required findings by the trial court support a modification of the net value of marital
property and the trial court found as such. The trial court also added an additional
finding of fact regarding a section 50-20(c) factor in the 2021 Order. However, this
finding amounted to a base assertion that the statutorily required factor was merely
considered.
¶ 14 The trial court is not required to state the weight it gives to each factor it
considers. Rosario, 139 N.C. App. at 260, 533 S.E.2d at 275. However, the trial court
must support its determination by a measure greater than due regard, and in such
fashion that an appellate court can determine from the record and judgment derived
from legal conclusions that the correct application of law has been represented. See
Rosario, 139 N.C. App. at 262, 533 S.E.2d at 276 (2000); Friend-Novorska, 143 N.C.
App. at 395, 545 S.E.2d at 794; Armstrong, 322 N.C. at 405-06, 368 S.E.2d at 600.
¶ 15 In the case sub judice, the trial court did not hold additional proceedings on
remand and modified the percent distribution of marital assets without considering
additional evidence. In addition, one of the factors for consideration of an unequal
distribution under N.C. Gen. Stat. Ann. § 50-20 is “[t]he income, property, and
liabilities of each party at the time the division of property is to become effective.”
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N.C. Gen. Stat. Ann. § 50-20. Since the most recent evidence was from the hearing
before the entry of the 2018 order, the trial court could not address the “income,
property, and liabilities” of the parties “at the time the division of property is to
become effective.” Thus, the findings of fact and evidence in the record do not justify
a modification from the 2018 Order’s percent distribution of marital assets because
the evidence in the record for the trial court to consider between the orders remained
the same and nothing in the 2021 Order justified a reweighing of the percent
distribution of marital assets based on the same material evidence. Therefore, the
trial court did not make sufficient findings of fact to justify its conclusion that the
modification of the percentage of distribution of marital assets between the 2018
Order and the 2021 Order was proper.
III. Conclusion
¶ 16 For the foregoing reasons, we vacate the trial court’s 16 March 2021 Amended
Equitable Distribution Order and remand for further proceedings and entry of a new
order. If either party requests the opportunity to present additional evidence for
consideration prior to entry of the new order, the trial court shall allow the parties to
present additional evidence limited to any relevant changes in circumstances which
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may affect an unequal distribution under N.C. Gen. Stat. Ann. § 50-20 since the last
evidentiary hearing.
VACATED AND REMANDED.
Chief Judge STROUD and Judge TYSON concur.
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