By Jessica S. Bullock, JD – North Carolina Family Law Specialist
Appellate and family law attorneys often find themselves in a battle over wording. In fact, the drafting of certain orders and agreements can be enough to make a family lawyer’s head spin. There are many times when drafting the settlement paperwork or the court order takes just as long as reaching the terms of settlement or receiving a court’s ruling in the first place. Why? Every word matters in legal drafting, especially in family law cases.
We all need to pay close attention to the very recent case out of Orange County, North Carolina, Carpenter v. Carpenter, No. COA 14-1066 (January 19, 2016). In this case, the Court of Appeals centered its discussion regarding an unequal division of the marital estate on the use of the word “presumption.” The trial court’s equitable distribution order contained a finding that “the defendant rebutted the presumption favoring an equal distribution of marital property” in support of its award of an unequal distribution. What the trial court’s order did not do was explain why an equal division was not equitable. To some, this may seem like six of one and one-half dozen of the other, but it appears to have been the very important difference between affirming and remanding on this particular issue.
The language of N.C. Gen. Stat. §50-20(c) does not contain a “presumption” that equal is equitable. It is the clear intent of the statute and the legislature that an equal distribution is mandated unless the court finds that an equal distribution is not equitable. The order must contain findings on the fourteen factors in the statute to support an order of an unequal division and must include findings on the weight given to each unequal factor. It was the use of the word “presumption” by the trial court that lead the Court of Appeals to the unavoidable conclusion to remand for appropriate findings. The problem with order’s wording is highlighted by the Court of Appeals in its conclusion wherein it points out that the trial court may not have been incorrect with its conclusion but did not include sufficient findings to determine if an unequal division was warranted.
Despite what may have been a correct conclusion by the trial court, it the nature of the legal beast that a correct conclusion needs appropriate findings to withstand an appeal. So, the next time you sit down at counsel table to try an equitable distribution case or sit down at your desk to draft an equitable distribution order, please keep this case in mind. Words matter and can make all the difference.
If you need a fresh look at whether your client should appeal to the Court of Appeals, the appellate section of Woodruff Family Law Group is ready and willing to assist you. Contact the appeals team at Woodruff Family Law Group to help with the decision of whether to appeal, for association on handling an appeal, or to simply handle the appeal for your client.