Shropshire v. Shropshire

875 S.E.2d 11

Frederick SHROPSHIRE, Plaintiff,

v.Sheyenne SHROPSHIRE, Defendant.

No. COA21-332

Court of Appeals of North Carolina.

Filed June 21, 2022

Plumides, Romano & Johnson, P.C., by Richard B. Johnson, Charlotte, for Plaintiff-Appellant.

Bratcher Adams Folk, PLLC, by Kalyn Simmons, Brice M. Bratcher, and Jeremy D. Adams, for Defendant-Appellee.

Sheyenne Shropshire, pro se, for Defendant-Appellee.

CARPENTER, Judge.

¶ 1 Frederick Shropshire ("Plaintiff") appeals from a judgment and order for equitable distribution (the "Order"). On appeal, Plaintiff argues the trial court abused its discretion by reopening evidence and requesting he provide evidence of his retirement plans’ date of trial values. He further argues the trial court abused its discretion by: (1) making findings of fact and conclusions of law regarding his Fidelity 401(k) Plan¹ ; (2) determining that an equal distribution of the marital estate was not equitable; and (3) ordering Plaintiff to pay Sheyenne Shropshire ("Defendant") a lump sum distributive award of $20,000.00. Because the record lacks sufficient evidence regarding Plaintiff's retirement plans to support the trial court's findings of fact, and in turn its conclusions of law, we remand the matter to the trial court to allow for entry of additional findings of fact and conclusions of law consistent with this opinion. Accordingly, we do not reach the remaining issues.

I. Factual & Procedural Background

¶ 2 The record reveals the following: Plaintiff and Defendant married on 15 June 2007, separated on 12 October 2016, and divorced on 25 April 2018. Three children were born of the marriage. Plaintiff initiated the instant action by filing a "Complaint for Child Custody and Motion for Ex-Parte Emergency Child Custody and/or in the Alternative Motion for Temporary Parenting Arrangement" (the "Complaint") on 12 October 2016. On 12 October 2016, the trial court entered a temporary emergency custody order, granting Plaintiff temporary custody of the three minor children.

¶ 3 On 24 October 2016, Defendant filed an answer to Plaintiff's Complaint as well as a motion to set aside the custody order entered 12 October 2016 and a claim for child custody. On 3 January 2017, Defendant filed an amended Answer to the Complaint, which included counterclaims for post-separation support, alimony, child custody, temporary and permanent child support, equitable distribution, and attorney's fees. On 6 March 2017, Plaintiff filed a "Reply, Defenses, and Motion in the Cause for Equitable Distribution, Child Support and Attorney's Fees." On 6 July 2017, the trial court entered an order denying Defendant's claims for post-separation support and attorney's fees.

¶ 4 Following a pre-trial discovery conference on 19 July 2017, the trial court entered an "Initial Pretrial Conference, Scheduling, and Discovery Order in Equitable Distribution Matter," which ordered the parties to submit their equitable distribution affidavits no later than 4 August 2017.

¶ 5 On 2 August 2017, Defendant filed her equitable distribution affidavit, and on 4 August 2017, Plaintiff filed his equitable distribution affidavit. Both parties listed the Plaintiff's and Defendant's retirement plans, including Plaintiff's Fidelity 401(k) Plan, under Part I – Marital Property of the affidavit. Both parties also noted "TBD" under the "date of separation" and "net value" columns pertaining to Plaintiff's two retirement plans. The parties did not list any property under Part II – Divisible Property, of their respective equitable distribution affidavits. On 9 November 2017, the trial court entered a "Status Conference Checklist and Order for Equitable Distribution Matter," which set the equitable distribution hearing for 5 January 2018.

¶ 6 The equitable distribution trial was conducted on 7 August 2018 before the Honorable Tracy H. Hewett, judge presiding. Defendant appeared pro se at the hearing. Both parties testified at the hearing, and neither party offered expert witnesses.

¶ 7 On 1 October 2018, Judge Hewett sent an e-mail to Defendant and counsel for Plaintiff advising she would be reopening evidence in the equitable distribution matter to obtain: (1) the date of trial values for Defendant's two investment accounts, including the Fidelity 401(k) Plan, and (2) the value of the parties’ marital residence. She also informed the parties that she would schedule another hearing to admit the requested evidence. Alternatively, she would allow the parties to agree "to submit th[e] information ‘on paper.’ "

¶ 8 In response to the trial court's request, Plaintiff filed an "Objection, Notice of Objection, Exception and Motion to Recuse" on 18 October 2018, in which he objected to Judge Hewett's request for evidence regarding his retirement accounts and sought Judge Hewett's recusal. On the same day, Defendant filed an objection to Plaintiff's motion. On 12 December 2018, the Honorable Chief Judge for Mecklenburg County District Court, Regan Miller, entered an order denying Plaintiff's motion to recuse. Chief Judge Miller found, inter alia , "the Court's request for additional documents or evidence prior to the close of all of the evidence can in no way be classified as ‘unfair surprise,’ and is not grounds for a recusal."

¶ 9 A hearing was held on 9 May 2019 in which the trial court put its requests on the record and allowed the parties an opportunity to put their objections on the record. The trial court notified the parties that it would withdraw its request for an appraisal of the marital home but was still requesting "the evidence regarding the passive appreciation for [Plaintiff's Fidelity 401(k) Plan]."

¶ 10 Counsel for Plaintiff objected to the reopening of evidence on the ground Plaintiff would be prejudiced since the parties did not identify any divisible property in their equitable distribution affidavits nor did they supplement their affidavits to add such property. Counsel further argued Defendant failed to meet her burden to identify Plaintiff's retirement accounts as divisible property and proffer evidence as to the value of the accounts. The trial court overruled counsel's objections, reasoning Defendant requested the information at the equitable distribution hearing and offered the divisible property value associated with her own retirement plan. At the end of the hearing, the trial court requested the parties bring documentation by 12 May 2019 regarding the value of Plaintiff's retirement plan as of the 7 August 2018 trial.

¶ 11 On 17 November 2020, the trial court entered the Order. Plaintiff timely filed written notice of appeal from the Order.

II. Jurisdiction

¶ 12 This Court has jurisdiction to review the Order pursuant to N.C. Gen. Stat. § 7A-27(c) (2021) and N.C. Gen. Stat. § 50-19.1 (2021).

III. Issues

¶ 13 The issues before the Court are whether: (1) the trial court abused its discretion by reopening evidence after the close of the equitable distribution trial; (2) the trial court abused its discretion by requesting Plaintiff provide the date of trial value of his Fidelity 401(k) Plan; (3) findings of fact 31, 34, 40–43, 55, 57–58, and 60–62 of the Order are supported by competent evidence; (4) the trial court abused its discretion when it determined an equal distribution of the marital estate was not equitable; and (5) the trial court abused its discretion by ordering Plaintiff to make a lump sum $20,000.00 cash distributive award to Defendant.

IV. Reopening the Evidence

¶ 14 In his first argument, Plaintiff contends the trial court abused its discretion by reopening evidence after the close of trial. Specifically, Plaintiff maintains the trial court "was operating under the misapprehension of law that Plaintiff-Appellant was obligated to provide the date of trial value of his [Fidelity 401(k)] Plan ...." Defendant asserts the trial court acted properly because it "set forth in the record that the evidence needed to be presented ... and exercised its discretion to reopen the case in order for the value to be produced." In light of the broad discretion afforded to a trial judge as well as a judge's duty to provide a fair and just trial, we conclude Judge Hewett, as the presiding judge, did not abuse her discretion by reopening evidence on her own initiative.

¶ 15 An "equitable distribution is a three-step process; the trial court must (1) ‘determine what is marital [and divisible] property’; (2) ‘find the net value of the property’; and (3) ‘make an equitable distribution of that property.’ " Cunningham v. Cunningham , 171 N.C. App. 550, 555, 615 S.E.2d 675, 680 (2005) ; see Robinson v. Robinson , 210 N.C. App. 319, 324, 707 S.E.2d 785, 790 (2011) ("[T]he [trial] court must ... classify all of the property and make a finding as to the value of all [distributable] property."); see also N.C. Gen. Stat. § 50-20 (2021).

¶ 16 Marital property includes "all real and personal property acquired by either spouse or both spouses during the course of the marriage and before the date of the separation of the parties, and presently owned, except property determined to be separate property or divisible property ...." N.C. Gen. Stat. § 50-20(b)(1). Divisible property includes, inter alia , "[p]assive income from marital property received after the date of separation," such as interest or dividends. N.C. Gen. Stat. § 50-20(b)(4). "[A]ll appreciation and diminution in value of marital and divisible property is presumed to be divisible property unless the trial court finds that the change in value is attributable to the postseparation actions of one spouse." Cheek v. Cheek , 211 N.C. App. 183, 184, 712 S.E.2d 301, 303 (2011) (citation omitted and emphasis in original). "[M]arital property shall be valued as of the date of the separation of the parties," while "[d]ivisible property ... shall be valued as of the date of distribution." N.C. Gen. Stat. § 50-21(b) (2021).

¶ 17 On appeal, neither party offers a case or statute that specifically addresses whether the...