In re: Gerringer ( 2022 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
2022-NCCOA-405
No. COA21-556
Filed 21 June 2022
Guilford County, No. 18 E 834
IN THE MATTER OF THE ESTATE OF:
BOBBY RONALD GERRINGER, Deceased.
Appeal by Petitioner from order entered 21 April 2021 by Judge Lora C.
Cubbage in Guilford County Superior Court. Heard in the Court of Appeals 23 March
2022.
Narron Wenzel, P.A., by Benton Sawrey and M. Kemp Mosley, for Petitioner-
Appellant.
Casey Gerringer, pro se Respondent-Appellee.
COLLINS, Judge.
¶1 Petitioner appeals the superior court’s order awarding her an elective share of
her late husband’s estate. We vacate the superior court’s order and remand to the
superior court with instructions to remand to the clerk of court for further
proceedings.
I. Background
¶2 Bobby Ronald Gerringer (“Decedent”) died testate in December 2017. Patricia
Gerringer (“Petitioner”) had been Decedent’s wife for approximately forty-five years
IN RE GERRINGER
2022-NCCOA-405
Opinion of the Court
at the time he died. Casey Lynn Gerringer (“Respondent”) is Decedent’s son.
Decedent’s last will and testament was submitted to the Guilford County Clerk of
Court in February 2018 and accepted for probate in common form. Decedent’s will
named Respondent executor of the estate and devised the entirety of his estate to
Respondent.
¶3 On 20 February 2018, Petitioner filed a Petition for Elective Share by
Surviving Spouse (“Petition”), seeking an elective share of 50% of Decedent’s net
estate, pursuant to N.C. Gen. Stat. § 30-3.1.
¶4 A preliminary hearing on the Petition was held before the Guilford County
Assistant Clerk of Court (“Clerk”) on 6 August 2018. A central issue at the hearing
was what portion of three joint bank accounts held by Decedent and Respondent as
joint tenants with right of survivorship should be included in the value of Decedent’s
net estate. The Clerk ordered Respondent to prepare a statement of Decedent’s
assets, pursuant to N.C. Gen. Stat. § 30-3.4(e2), and set a future hearing date at
which Respondent could offer evidence of his contribution to the joint accounts. The
Clerk also ordered a partial distribution of Decedent’s estate in an amount of
$158,617.47 be paid to Petitioner, without prejudice to either party.
¶5 Respondent submitted a statement of Decedent’s assets on 5 September 2018,
which showed total assets of $670,625.35. In addition to real property, personal
property, and life insurance benefits, the statement listed two accounts held by
IN RE GERRINGER
2022-NCCOA-405
Opinion of the Court
Decedent alone, naming Respondent the sole beneficiary, and three joint accounts
held by Decedent and Respondent as joint tenants with rights of survivorship in the
amounts of $386,630.39; $12,650.53; and $143,659.91, for a total of $542,940.83.
¶6 A hearing was held before the Clerk on 24 September 2018 to determine what
percentage of the value of the joint accounts should be included in the value of
Decedent’s net estate. Respondent testified about his contributions to the three joint
accounts as follows: Respondent deposited money into the joint accounts “a couple of
different times.” He deposited an unspecified amount in the year 2000 and again in
2010 or 2011, but did not have bank records confirming those deposits. He deposited
$22,000 on 8 August 2014 and withdrew $35,000 that same day. Three days before
Decedent died, Respondent transferred $250,000 from one of the joint accounts to
another of the joint accounts. At the hearing, Respondent also informed the Clerk
that Decedent’s stepson, Anthony Gerringer, had filed a claim for $109,200 for
personal services to the Decedent and Decedent’s estate and that Respondent had
denied the claim.
¶7 The Clerk entered her Order Awarding Elective Share (“Clerk’s Order”) on
7 November 2018, awarding Petitioner an elective share of fifty percent of the
Decedent’s net estate. The Clerk’s Order found and concluded, in part:
8. Pursuant to the calculation of values listed on the
Statement of Total Assets filed in this matter, the Total
Assets of this Estate are $670,625.35.
IN RE GERRINGER
2022-NCCOA-405
Opinion of the Court
9. Total Net Assets of the Estate are defined by North
Carolina statute as the total assets reduced by claims
and by year’s allowances to persons other than the
surviving spouse. One claim has been filed in this matter
on October 4, 2018, by Anthony C. Gerringer, in the
amount of $109,200.00. On September 6, 2018, the
Executor filed a letter with the Clerk of Superior Court
denying the claim made by Anthony C. Gerringer. No
year’s allowances to persons other than the surviving
spouse have been allotted. Therefore, the Total Net
Assets of this Estate are $670,625.35.
10. Pursuant to N.C. [Gen. Stat.] § 30-3.1, the applicable
share of Total Net Assets to which the surviving spouse is
entitled is ½ of Total Net Assets, a value of $335,312.68.
11. Pursuant to N.C. [Gen. Stat.] § 30-3.2, Property
Passing to Surviving Spouse equals zero.
12. The amount of the elective share Petitioner is
entitled to is determined by the following calculation:
[$335,312.68 – 0 = $335,312.68.]
13. Parties agree that [Petitioner] has already received
a partial distribution of her elective share in the amount
of $158,617.47 from the Executor. The balance of the
elective share then remaining due is $176,695.20.
($335,312.68 – $158,617.47 = $176,695.20).
¶8 The Clerk thus ordered Respondent to deliver a check to Petitioner in the
amount of $176,695.20.
¶9 Respondent, through counsel, appealed the Clerk’s Order on 21 November
2018. Respondent’s sole alleged error was that the Clerk “ordered that the elective
share would be one-half (1/2) of the gross assets without taking into consideration in
(sic) an outstanding claim in excess of $100,000.00. Thus, [the Clerk’s] Order
IN RE GERRINGER
2022-NCCOA-405
Opinion of the Court
Awarding Elective Share entered on November 7, 2018 is not based upon the net
estate.” Between the time that Respondent filed his appeal and the time the appeal
came on for hearing before the superior court, Respondent’s attorney withdrew. The
attorney filed a claim against the estate for attorney’s fees for $9,541.
¶ 10 Respondent’s appeal was heard by the superior court on 23 March 2021.
Respondent, appearing pro se, argued that the Clerk’s Order had failed to consider
outstanding claims against the estate, including the Decedent’s stepson’s $109,200
claim and Respondent’s counsel’s claim for $9,541. The superior court sua sponte
raised the issue of whether the Clerk had used the correct value of the joint accounts
when calculating Decedent’s net estate.
¶ 11 The superior court entered its Order Awarding Elective Share (“Superior
Court’s Order”) on 21 April 2021 finding, in part:
13. That after the review this Court determined that []
while the Assistant Clerk of Court found that pursuant
to [N.C. Gen. Stat.] § 30-3.2(3f), fifty percent (50%) of the
funds held in the joint accounts with the right of
survivorship, listed on the statement of total assets filed
September 6, 2018, were to be included in the sum of values
used to calculate total assets, that the Assistant Clerk of
Court erroneously used the total amount of funds in the
aforementioned accounts as part of her calculation of the
Total Assets of the Estate that were to be used in
calculating the elective share due to the Petitioner [].
14. That this Court agrees [N.C. Gen. Stat. §] 30-3.2(3f)
allows only one half of the total funds in the joint accounts
with the right of survivorship to be used in the calculation
IN RE GERRINGER
2022-NCCOA-405
Opinion of the Court
of Total Assets of the deceased when it comes to
determining the amount of Petitioner’s elective share.
15. That this Court recalculated only the Joint Accounts
with Right of Survivorship using one half of the total
amount in each account and finds the following:
....
16. That when the recalculation is completed, the total of
the Total Assets to be used in the calculation to determine
the amount due Petitioner under the Elective Share
statute is: $399,154.98.
....
19. That this Court finds that attorney fees due out of the
Estate are due to Attorney Tom Maddox in the amount of
$9,541.00.
20. That this Court finds that claims due to be paid from
the Estate are $11,989.30.
21. That this Court finds that Total Assets of the Estate of
Bobby Ronald Gerringer are $399,154.98 – $21,530.30 =
$377,624.68.
22. That this Court finds the Total Assets of the Estate of
Bobby Ronald Gerringer is $377,624.68 for the purpose of
calculating the Elective Share that is due to Petitioner [].
23. That this Court finds the Elective Share statute
provides that Petitioner [] is entitled to one half of the
Total Assets of the Estate of Bobby Ronald Gerringer which
equates to: $377,624.68 [divided by] 2 = $188,812.34.
24. That this Court finds that the final amount remaining
due to Petitioner [] from the Estate of Bobby Ronald
Gerringer is: $188,812.34 – $158,617.47 = $30,194.87.
¶ 12 The superior court ordered Respondent to deliver a cashier’s check to
IN RE GERRINGER
2022-NCCOA-405
Opinion of the Court
Petitioner “in the amount of $30,194.87 made payable to [Petitioner], representing
the payment to her of the balance of the Claim for Elective Share owed to her.”
Petitioner timely appealed the Superior Court’s Order.
II. Discussion
A. Standard of Review
¶ 13 The clerk of court has “jurisdiction of the administration, settlement, and
distribution of estates of decedents including, but not limited to, estate proceedings
as provided in [N.C. Gen. Stat. §] 28A-2-4.” N.C. Gen. Stat. § 28A-2-1 (2021). Section
28A-2-4(a) provides that the clerk has “original jurisdiction of estate proceedings.”
Id. § 28A-2-4(a) (2021). “Estate proceedings” are “matter[s] initiated by petition
related to the administration, distribution, or settlement of an estate, other than a
special proceeding.” Id. § 28A-1-1(1b). In estate proceedings, the clerk shall
“determine all issues of fact and law . . . [and] enter an order or judgment, as
appropriate, containing findings of fact and conclusions of law supporting the order
or judgment.” Id. § 1-301.3(b).
¶ 14 “On appeal to the superior court of an order of the clerk in matters of probate,
the [superior] court . . . sits as an appellate court.” In re Estate of Pate, 119 N.C. App.
400, 402, 459 S.E.2d 1, 2 (1995) (citation omitted). The superior court’s standard of
review is as follows:
Upon appeal, the judge of the superior court shall review
IN RE GERRINGER
2022-NCCOA-405
Opinion of the Court
the order or judgment of the clerk for the purpose of
determining only the following:
(1) Whether the findings of fact are supported by the
evidence.
(2) Whether the conclusions of law are supported by
the findings of facts.
(3) Whether the order or judgment is consistent with
the conclusions of law and applicable law.
N.C. Gen. Stat. § 1-301.3(d) (2021).
¶ 15 The appellant must make specific exceptions to any finding or conclusion in
the clerk’s order with which he disagrees. In re Swinson’s Estate, 62 N.C. App. 412,
415, 303 S.E.2d 361, 363 (1983). “[T]he [superior court] may review any of the clerk’s
findings of fact when the finding is properly challenged by specific exception and may
thereupon either affirm, modify or reverse the challenged findings.” Id. at 416, 303
S.E.2d at 363 (quoting In re Taylor, 293 N.C. 511, 519, 238 S.E.2d 774, 778 (1977)).
Unchallenged findings of fact “are presumed to be supported by competent evidence
and are binding on appeal.” In re Estate of Harper, 269 N.C. App. 213, 215, 837 S.E.2d
602, 604 (2020) (citation omitted).
¶ 16 “The standard of review in [the Court of Appeals] is the same as in the superior
court.” Pate, 119 N.C. App. at 403, 459 S.E.2d at 2-3. Errors of law by the superior
court, including whether the superior court has applied the correct standard of
review, are reviewed de novo. In re Estate of Johnson, 264 N.C. App. 27, 32, 824
IN RE GERRINGER
2022-NCCOA-405
Opinion of the Court
S.E.2d 857, 861 (2019).
B. Superior Court’s Review of Clerk’s Order
¶ 17 The dispositive issue on appeal is whether the superior court erred in its review
of the Clerk’s Order.
¶ 18 N.C. Gen. Stat. § 30-3.1(a), which governs the elective share of a surviving
spouse, provides as follows:
The surviving spouse of a decedent who dies domiciled in
this State has a right to claim an ‘elective share’, which
means an amount equal to (i) the applicable share of the
Total Net Assets. . . less (ii) the value of Net Property
Passing to Surviving Spouse1 . . . .
N.C. Gen. Stat. § 30-3.1 (2021). The “applicable share” of the Total Net Assets for a
surviving spouse who had been married to the decedent for 15 years or more is 50%.
Id. § 30-3.1(a)(4). “Total Net Assets” are “[t]he total assets reduced by year’s
allowances to persons other than the surviving spouse and claims.” Id. § 30-3.2(4).
“Total assets” are defined by N.C. Gen. Stat. § 30-3.2 and include property held jointly
with right of survivorship. Id. § 30-3.2(3f)(c).
¶ 19 At the time that the Clerk heard the matter in September 2018 and entered
the Clerk’s Order in November 2018, N.C. Gen. Stat. § 30-3.2(3f)(c)(2) provided that
1 Net Property Passing to Surviving Spouse is “[t]he Property Passing to Surviving
Spouse reduced by (i) death taxes attributable to property passing to surviving spouse, and
(ii) claims payable out of, charged against or otherwise properly allocated to Property Passing
to Surviving Spouse.” N.C. Gen. Stat. § 30-3.2(2c) (2021).
IN RE GERRINGER
2022-NCCOA-405
Opinion of the Court
property held by the decedent and one or more other
persons other than the surviving spouse as joint tenants
with right of survivorship is included [in the calculation of
“total assets”] to the following extent:
I. All property attributable to the decedent’s
contribution.
II. The decedent’s pro rata share of property
not attributable to the decedent’s
contribution, except to the extent of property
attributable to contributions by a surviving
joint tenant.
The decedent is presumed to have contributed the
jointly owned property unless otherwise proven by
clear and convincing evidence.
N.C. Gen. Stat. § 30-3.2(3f)(c)(2) (2018).
¶ 20 However, between entry of the Clerk’s Order in November 2018 and the
superior court hearing Respondent’s appeal in April 2021, the North Carolina
General Assembly amended N.C. Gen. Stat. § 30-3.2(3f)(c). This amendment became
effective on 30 June 2020 and “applies to estate proceedings to determine the elective
share which are not final on [30 June 2020] because the proceeding is subject to
further judicial review.” S.L. 2020-60, § 1. The amended version of N.C. Gen. Stat.
§ 30-3.2(3f)(c)(2) reads as follows:2
2The amended N.C. Gen. Stat. § 30-3.2(3f)(c)(2) deleted the marked-through text and
added the bolded text, as illustrated below:
IN RE GERRINGER
2022-NCCOA-405
Opinion of the Court
Property held by the decedent and one or more other
persons as joint tenants with right of survivorship is
included [in the calculation of “total assets”] to the extent
of the decedent’s pro rata share of property attributable to
the decedent’s contribution.
The decedent and all other joint tenants are presumed to
have contributed in‑kind in accordance with their
respective shares for the jointly owned property unless
otherwise proven by clear and convincing evidence.
N.C. Gen. Stat. § 30-3.2(3f)(c) (2021).
¶ 21 Essentially, where property was held by the decedent and one other person as
joint tenants with right of survivorship, the amendment (1) changed the maximum
percentage of the joint property attributable to the decedent from 100% to 50%,
(2) changed the percentage the decedent is presumed to have contributed to the joint
property from 100% to 50%, and (3) changed the burden of proof to rebut this
presumption from the surviving joint tenant to the spouse seeking an elective share.
Property held by the decedent and one or more other persons
other than the surviving spouse as joint tenants with right of
survivorship is included [in the calculation of “total assets”] to
the following extent:
I. All property attributable to the decedent’s contribution.
II. The extent of the decedent’s pro rata share of
property not attributable to the decedent’s
contribution, except to the extent of property
attributable to contributions by a surviving joint tenant.
The decedent is and all other joint tenants are presumed to
have contributed in‑kind in accordance with their
respective shares for the jointly owned property unless
contribution by another is otherwise proven by clear and
convincing evidence.
IN RE GERRINGER
2022-NCCOA-405
Opinion of the Court
¶ 22 In this case, Petitioner is seeking an elective share of Decedent’s estate. The
estate proceeding to determine Petitioner’s elective share was not final on 30 June
2020 because the Clerk’s Order was, and still is, subject to further judicial review.
Accordingly, while the former statute applied to the proceeding before the Clerk, the
amended statute applied to the proceeding on appeal in the superior court.
Consequently, the findings of fact and conclusions of law in the Clerk’s Order were
based on a statute that was no longer “good law” when the superior court reviewed
it. As a result, the superior court could not review the Clerk’s order under the
applicable standard of review and should have remanded the matter to the Clerk with
instructions to apply the amended statute.3 See, e.g., Johnson, 264 N.C. App. at 34,
824 S.E.2d at 862 (“When the order or judgment appealed from was entered under a
misapprehension of the applicable law, the judgment, including the findings of fact
and conclusions of law on which the judgment was based, will be vacated and the case
remanded for further proceedings.”) (citation omitted). In light of our holding, we do
not reach Petitioner’s remaining arguments.
III. Conclusion
¶ 23 We vacate the Superior Court’s Order and remand the case to the superior
3It is not clear from the record or transcript that the superior court was aware that
N.C. Gen. Stat. § 30-3.2 had changed between the date the matter was heard by the Clerk
and the date the matter was heard in the superior court on appeal.
IN RE GERRINGER
2022-NCCOA-405
Opinion of the Court
court with instructions to remand to the clerk of court for further proceedings. The
clerk of court may, in its discretion, receive more evidence.
VACATED AND REMANDED.
Judges ZACHARY and WOOD concur.