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Home / Courts / Domestic Relations – Failure to Join Party – Equitable Distribution – Valuation of Marital Assets – Alimony – Notice Pleading

Domestic Relations – Failure to Join Party – Equitable Distribution – Valuation of Marital Assets – Alimony – Notice Pleading

Quesinberry v. Quesinberry. (Lawyers Weekly No. 11-07-0339, 27 pp.) (John C. Martin, C.J.) Appealed from Surry County District Court. (Charles M. Neaves Jr. & Angela B. Puckett, JJ.). N.C. App. Click here for the full text of the opinion.

Holding: We believe the husband’s pleading, when read in its entirety, provided a sufficient basis to give the wife fair notice of the grounds for the husband’s claim for alimony.

We reverse the trial court’s order dismissing the husband’s claim for alimony with prejudice, and remand for further proceedings on this claim.

Facts

The plaintiff-wife filed a complaint for equitable distribution seeking a greater than one-half share of the marital estate. The defendant-husband answered and counterclaimed seeking post-separation support and alimony, an unequal distribution of the marital estate in his favor, divorce from bed and board, and costs and attorney’s fees. The wife moved to dismiss the husband’s claims for post-separation support and alimony pursuant to N.C. R. Civ. P. 12(b)(6).

The husband voluntarily dismissed his claims for post-separation support and alimony and filed a separate motion for the same later that day. The wife moved to dismiss the husband’s motion pursuant to N.C. R. Civ. P. 12(b)(1), (b)(4), (b)(5), and (b)(6).

The parties entered into a pre-trial agreement, which was adopted and entered by the court as its pre-trial order in which the parties “disclosed the existence of all property, both separate and marital,” and stipulated as to which items were part of the marital estate and to the value of the property as of Feb. 9, 2008, the date of separation.

After a five-day hearing, the court determined that an unequal division of the $4,031,100 in marital estate was equitable, and awarded 45 percent, or assets valued at $1,813,995, to the wife, and 55 percent of assets valued at $2,217,105 to the husband.

One of the assets awarded to the wife was all the husband’s right, title and interest in Quesinberry’s Garage and Wrecker Service, Inc. The husband filed a motion pursuant to N.C. R. Civ. P. 59 asking the court to vacate its equitable distribution judgment and requesting a new trial in the matter.

The court denied the husband’s Rule 59 motion. The court entered an order granting the wife’s motion to dismiss the husband’s claims for spousal support pursuant to Rule 12(b)(6). The husband appealed the trial court’s orders and judgments.

Failure to Join Party

The husband first contends the trial court lacked subject matter jurisdiction to enter its equitable distribution judgment because it failed to join Quesinberry’s Garage, Wrecker Service & Truck Sales, Inc. to the action ex mero motu.

The husband asserts for the first time on appeal that several items of property distributed to the parties in the court’s equitable distribution judgment belonged to Quesinberry’s Garage and, thus, could not have been distributed to the parties without the presence of the corporation in the action.

But the pre-trial order, signed by both parties and their respective counsel, lists stipulated marital assets including the 11 items that the husband now contends are assets belonging to Quesinberry’s Garage.

The husband does not argue that he did not understand the legal effect of his agreement or that the court improperly accepted the parties’ written stipulations when the court entered its pre-trial order.

Since the husband stipulated that these assets are marital property, we conclude that the husband’s contention that the court lacked subject matter jurisdiction to distribute these marital assets without first joining Quesinberry’s Garage to the action is without merit.

Date of Separation

The husband contends the trial court erred by “failing to find date of separation values for numerous marital properties” in its equitable distribution judgment. The husband specifically asserts the court failed to find “date of separation values” for 18 marital assets.

However, as reflected in the court’s pre-trial order, signed by both parties and parties’ counsel, the parties stipulated that the date of valuation for all marital property subject to equitable distribution was Feb. 9, 2008, which was also stipulated as the date of the parties’ separation.

The court’s valuation for most of the items the husband now challenges was taken either from one or both of the parties’ own pre-trial stipulations regarding the value of the property, or from the parties’ unchallenged oral stipulations as to the value of the property at trial. Thus, this argument is also without merit.

Account Value

The husband challenges the finding of the value of a Hartford account, contending the trial court erred by failing to find, as he had testified, that the value of this account had declined since the date of separation.

Both parties agreed by stipulation in the pre-trial order that the value of this account at the date of separation was $59,387. At the hearing, however, the husband testified that the account had depreciated.

Since it was within the court’s province to determine the credibility of the husband’s unsupported claims of diminution of the value of this account, we conclude that the trial court did not abuse its discretion by valuing the account at the amount stipulated by both parties in the pre-trial order.

Business Value

The husband next challenges the trial court’s valuation of Quesinberry’s Garage in its equitable distribution judgment.

The parties stipulated that Quesinberry’s Garage is a marital asset. Based on the court’s pre-trial order, the wife valued Quesinberry’s Garage at $0.00, while husband indicated that the value of this asset was “TBD.”

We find no error in the trial court’s determination that the husband’s unsupported assertions were not credible or relevant to its valuation of Quesinberry’s Garage. The husband provides no other legal support for his challenge to the trial court’s valuation and distribution of Quesinberry’s Garage; accordingly, we overrule the husband’s remaining assertions as to this issue.

Alimony Pleading Requirements

The husband contends that the trial court erred by dismissing with prejudice his claim for alimony pursuant to 12(b)(6).

G.S. § 50-16.3A(a) provides, in part, that the court shall award alimony to the dependent spouse upon a finding that one spouse is a dependent spouse, that the other spouse is a supporting spouse, and that an award of alimony is equitable after considering all relevant factors.

To be a dependent spouse, one must be either actually substantially dependent upon the other spouse or substantially in need of maintenance and support from the other spouse.

A spouse is actually substantially dependent if he or she is currently unable to meet his or her own maintenance and support.

A pleading or motion by which a party makes a claim for alimony must comply with N.C. R. Civ. P. 8 and “state the claim with sufficient particularity to give the court and the parties notice of what the party seeking alimony intends to prove in order to establish the party’s right to relief and make a demand for judgment for that relief.” The pleading or motion should contain facts addressed to dependency, supporting spouse, and some of the economic and other facts that make an award of alimony equitable under the circumstances.

If the petitioner offers only the amount of the other spouse’s income, the statement of the claim is insufficient on the element of dependent and supporting spouses. However, if the statement also includes factual allegations on the petitioner’s needs and inability to meet them, then the statement should be sufficient.

Only in the rare case would a statement of a claim for alimony fail the notice requirements of Rule 8.

Here, the husband alleged that he was in need of support from the wife to “maintain his accustomed standard of living established during the marriage,” but did not specifically allege what that standard of living entailed.

Nevertheless, the husband addressed the shortfall between his income and expenses, alleging that “for some time” during the course of the parties’ marriage and prior to the date of separation, he received and still currently receives $1,950 per month in social security disability benefits and that his “total needs and expenses” require $4,908.

He also alleged that he was employed at Quesinberry’s Garage “up until the parties’ date of separation” and did not “directly receive significant income” as a result of his position, and that he similarly has not received any compensation from the operation of the family business since at least one month following the parties’ separation.

He further alleged that he resided with the parties’ daughter “for some time” because he was “unable to afford his own separate housing.”

The husband also made allegations regarding the wife’s ability to address his income-expense shortfall by alleging that the wife, unlike the husband, was “an able-bodied person capable of gainful employment,” has been in possession and control of the family business since at least one month following the parties’ separation, and “does receive a significant income as a result of her employment and full operating authority of [Quesinberry’s Garage].”

While the husband’s allegation that the wife’s income is “significant” does not include any specific reference to the amount of the wife’s income, and the husband failed to include any allegations regarding the wife’s expenses so as to show that she retains a surplus of income after meeting her expenses, we believe the husband’s pleading, when read in its entirety, provided a sufficient basis to give the wife fair notice of the grounds for his claim for alimony.

We reverse the trial court’s order dismissing the husband’s claim for alimony with prejudice, and remand for further proceedings on this claim.

Affirmed in part; reversed in part and remanded.


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