Gagnon v. Gagnon , 149 N.C. App. 194 ( 2002 )

TYSON, Judge,

concurring in part and dissenting in part.

I concur with the majority’s opinion that defendant is entitled to a percentage of plaintiff’s entire military pension. The parties were married at the time the pension vested. N.C. Gen. Stat. § 50-20.1(d) (1997) (“The award shall include gains and losses on the prorated portion of benefit vested at the date of separation”). I do not agree with the majority’s holding “that the trial court properly awarded defendant a twenty-six percent share of plaintiffs retirement benefits,” nor do I concur with footnote 1 in the opinion giving the trial court authority to “round-up” numbers.

The trial court found as fact that plaintiff and defendant were married for 51.25 percent of the time plaintiff served in the military. The trial court’s conclusion of law awarding defendant 26% is not supported by its finding of fact that defendant was married to plaintiff for 51.25% of his military service. G.S. § 20(c) requires “an equal distribution . . . unless the court determines an equal distribution is not equitable.” N.C. Gen. Stat. § 20(c) (1995); Smith v. Smith, 314 N.C. 80, 331 S.E.2d 682 (1995). The trial court must make findings of fact to support an unequal distribution. Alexander v. Alexander, 68 N.C. App. 548, 552, 315 S.E.2d 772, 775-76 (1984). The trial court made none.

I would remand to the trial court to amend and conform its order and judgment to its findings of fact. The majority cites no authority under G.S. § 50-20 granting the trial court discretion to round up fractional numbers. Defendant was entitled to a 25.625% distribution, not 26%. I respectfully dissent.