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Domestic Relations – Pre-Trial Stipulation – Valuation – Appellate Brief – Alimony Award

Payne v. Payne (Lawyers Weekly No. 012-094-16, 18 pp.) (Linda McGee, C.J.) Appealed from Stokes County District Court (Charles Neaves, Jr., J.) N.C. App. Unpub.

Holding: Where neither party asked the trial court to set aside the stipulations in their pre-trial equitable distribution order, the trial court should not have awarded property to the plaintiff-husband when the stipulations said the property should go to the defendant-wife.

We affirm the trial court’s judgment in part and vacate and remand in part.

The wife sought to set aside an unequal division of the marital estate, the valuation of several specified marital assets of both real and personal property, and a finding that the husband was not a supporting spouse and that wife was not a dependent spouse for alimony purposes.

The wife claimed that the division of marital property ordered by the trial court was contrary to the parties’ stipulations in the pre-trial equitable distribution order; that the trial court arrived at certain real property valuations without explanation as to how it weighed the evidence presented at trial; that there was no competent evidence to support valuations of other real and personal property; and that the trial court failed to make sufficient findings of fact to support its conclusions that the wife was not entitled to alimony.

The trial court awarded certain property to the husband, despite a pre-trial stipulation awarding it to the wife. At the hearing, the court elicited testimony regarding the parties’ desires as to the distribution of the property, but neither party had filed a motion to set aside the pre-trial stipulation. Absent a motion to set aside such stipulations, we conclude the court erred by deviating from the parties’ pre-trial stipulations and distributing the properties to the husband rather than to the wife.

We overrule the issues with respect to the wife’s claim that the trial court “gave no reasoning” for its valuation of certain other real property. At the hearing, both parties testified as to the value of the property. The trial court is not required to recite in its order all evidentiary facts presented at hearing. It is only required to find those material and ultimate facts from which it can be determined whether the findings are supported by the evidence and whether they support the conclusions of law reached. The trial court has the right to believe all, part, or none of the testimony presented at the hearing.

We remand for further consideration the issue with respect to the wife’s claim that there was no competent evidence to support the valuation of other real property by the trial court. The wife testified that the property value was $104,000 with a mortgage of $97,000. Husband testified that the purchase price was $105,000, but that improvements had increased the value to $150,000. The court found that the value was $120,000, with mortgage debt of $97,000, with a net value of $23,000.

Neither the record nor the judgment indicates how the court arrived at a value that was below half of the average of the two fair market valuations offered at trial. When there is conflicting testimony as to value, the trial court may not merely guess at a figure somewhere in between, but may arrive at such a middle figure after considering the factors involved in the appraisals.

We remand for further consideration the valuation of a store and bank account that the court valued at a total of $3,851.14. The court received testimony from the husband that the bank account contained marital property amounting to only $3,851.14. The wife provided conflicting testimony as to the value of the account. However, both testified as to varying values of the store, ranging from $25,000 to $50,000. While we cannot conclude the trial court abused its discretion by appearing to give greater weight to the husband’s testimony as to the account, the judgment does not appear to have attributed any value to the store, suggesting that the court gave no weight to the testimony of either party as to its value. We conclude that the trial court failed to value the store based on the evidence presented.

We affirm the distribution of the remaining items by the court, based on the wife’s failure to set out specific arguments in her brief regarding those individual items. The wife asserted that the page limitations set out by the Rules of Appellate Procedure prevented her from an in-depth analysis of many other disputed items in the marital estate. However, the wife’s brief was well below the page and word-count limits set out by the Rules. It is not the role of this court to construct arguments for the parties, and we therefore decline the wife’s invitation for further scrutiny of the evidence and findings of each asset.

We vacate the portion of the court’s order concerning wife’s counterclaim for alimony based on the court’s finding that husband was not a supporting spouse and wife was not a supported spouse. Although the parties provided detailed testimony about their income and current monthly expenses, the court’s findings consisted of the following: that the husband was retired, had a net income of $1,800.00 per month; that his monthly living expenses and monthly payments for marital debts were “reasonable”; that he did not “have the funds available or the ability” to pay alimony; that the wife earned “a limited income”; that she had “reasonable” monthly living expenses; and that she had the “ability to meet her needs and expenses on a monthly basis.”

Without more, these findings constitute bare conclusions, unaccompanied by supporting grounds for such conclusions. The trial court’s findings must be sufficiently specific to indicate the proper consideration of each of the factors and must allow an appellate court to determine that the judgment is adequately supported by competent evidence. Therefore, we vacate the portion of the court’s order concerning the wife’s counterclaim for alimony and remand this matter to the trial court with instructions to make sufficient ultimate findings of fact to support its conclusions of law.

Affirmed in part; vacated and remanded in part.

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