Dusenberry v. Dusenberry ( 1985 )

326 S.E.2d 65 (1985)

G. Reid DUSENBERRY, III
v.
Sue Brown DUSENBERRY (now Fowler).

No. 8415DC636.

Court of Appeals of North Carolina.

February 19, 1985.

Holt, Spencer & Longest by James C. Spencer, Jr., Burlington and Hunter, Wharton & Howell by John V. Hunter, III, Raleigh, for plaintiff-appellee.

Boyce, Mitchell, Burns & Smith, P.A. by Carole S. Gailor, Raleigh, for defendant-appellant.

WHICHARD, Judge.

This is an equitable distribution action pursuant to G.S. 50-20, 21, in which the court concluded as a matter of law that an equal division of the marital property was not equitable. It did so based in part upon findings that defendant-wife "began having an adulterous affair ... and began neglecting the plaintiff and their three minor children" and that this conduct "was a major reason for the break-up of this marriage... and ... was the only serious and significant mistreatment of either party by the other party during the course of this marriage." It concluded that consideration of "the relative fault of the parties leading to the disintegration of their marriage ... [was] just and proper."

Subsequent to entry of this order, this Court held that fault is not a relevant or appropriate consideration in determining an equitable distribution of marital property. Hinton v. Hinton, 70 N.C.App. 665, 321 S.E.2d 161 (1984); see also Wade v. Wade, ___ N.C.App. ___, 325 S.E.2d 260 (1985); Smith v. Smith, 71 N.C.App. 242, 322 S.E.2d 393 (1984). The award here is clearly grounded upon fault-based findings regarding an adulterous affair on the part of defendant-wife. Because the court considered this irrelevant and inappropriate matter in awarding the marital property, the order must be vacated and the cause remanded for a new order based solely upon relevant and appropriate findings.

Vacated and remanded.

WELLS and BECTON, JJ., concur.