Wurtz v. Wurtz

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA13-993
NORTH CAROLINA COURT OF APPEALS
Filed: 4 March 2014
NANCI WURTZ,
Plaintiff-Appellee,
v. Iredell County
No. 10 CVD 2708
THOMAS J. WURTZ,
Defendant-Appellant.
Appeal by Defendant from order entered 29 April 2013 by
Judge Edward L. Hedrick, IV in District Court, Iredell County.
Heard in the Court of Appeals 21 January 2014.
Pressly, Thomas & Conley, P.A., by Jessie Conley, for
Plaintiff-Appellee.
Homesley & Wingo Law Group, PLLC, by Andrew J. Wingo, for
Defendant-Appellant.
McGEE, Judge.
Nanci Wurtz (“Plaintiff”) and Thomas J. Wurtz (“Defendant”)
were married on 16 January 1988. Plaintiff filed the complaint
in this action on 24 August 2010, including claims for child
custody and support, divorce, alimony and post-separation
support, equitable distribution, and attorney’s fees. Plaintiff
and Defendant were divorced on 21 May 2012. An order on
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equitable distribution, alimony and child support was entered on
29 April 2013. Defendant appeals from this order.
The issues Defendant attempts to address on appeal are
whether, in its equitable distribution portion of the 29 April
2013 order, the trial court erred in: (1) failing to calculate,
distribute, and otherwise factor “the amount of real property
loss in the value of TJC Development, LLC,” (“TJC”)1; and (2)
failing to properly address in the order a specific piece of
personal property and $22,000.00 held in a joint account.
Defendant argues that the trial court failed to make
certain findings and conclusions related to a purported loss in
value of TJC. In Defendant’s brief, he states: “At trial,
[Defendant] testified that there was an expected future real
property loss of $200,000.00, and that such loss would convey to
TJC, and thus the owner of TJC’s membership interests would
receive a capital tax loss of $70,000.00.” Defendant further
states that his equitable distribution affidavit included a
men’s Rolex watch, and that he testified concerning the watch at
trial. Finally, Defendant asserts that “during the trial of
this matter, [Defendant] testified to the existence of
$22,000.00 in funds in [an account ending in the number 1746],
1
TJC was a real estate development company in which Plaintiff
and Defendant owned a majority interest.
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which funds were given to the parties by [Defendant’s] mother to
invest for her[.]”
In support of these statements, Defendant cites to
“Appendix A.” Appendix A in Defendant’s brief includes
Defendant’s purported “Appellate Rule 9(c) Statement of
Testimony.” However, Defendant fails to acknowledge in his
brief that this purported Rule 9 statement of testimony was
disputed by Plaintiff, and was apparently rejected by the trial
court in an order entered 2 September 2013. We cannot locate
this order in the record, or Defendant’s 200 plus page Appendix
A. Plaintiff includes it as an appendix to her brief. In the 2
September 2013 order, the trial court determined:
10. [Defendant’s] summary of his testimony
which was attached to [Plaintiff’s] request
for judicial settlement is not factually
accurate.
11. Any statement in [Defendant’s] proposed
record on appeal which infers an agreement
with [Plaintiff] with respect to an issue or
narrative in the record and to that
statement [Plaintiff] has stated an
objection is not factually accurate.
12. [Plaintiff’s] proposed substitute
narrative is not factually accurate.
13. By failing to contract for a transcript
and by failing to promptly submit items
required by the Rules of Appellate Procedure
and by failing to comply with Rule 11
regarding the scheduling of the hearing, the
parties have made it impossible for the
court to settle the form of the narratives
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or to settle the record on appeal within the
constraints of the Rules of Appellate
Procedure.
Based on these findings, the trial court denied Plaintiff’s
request for judicial settlement of the record. Therefore, the
record contains no transcript of the equitable distribution
hearings and no substitute narrative of the proceedings in
accordance with N.C.R. App. P. 9(c).
(1) Composition of the Record in Civil
Actions and Special Proceedings. The
record on appeal in civil actions and
special proceedings shall contain:
. . . .
e. so much of the litigation, set out in the
form provided in Rule 9(c)(1), as is
necessary for an understanding of all issues
presented on appeal, or a statement
specifying that the verbatim transcript of
proceedings is being filed with the record
pursuant to Rule 9(c)(2), or designating
portions of the transcript to be so filed[.]
N.C.R. App. P. 9(a) (2014); see also Matter of Botsford, 75 N.C.
App. 72, 74-75, 330 S.E.2d 23, 25 (1985) (“N.C.R. App. P. 9(a)
. . . requires that the record on appeal contain so much of the
evidence, either in narrative form or in the verbatim transcript
of the proceedings, as is necessary for an understanding of all
errors assigned. Where such evidence is not included in the
record, it is presumed that the findings are supported by
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competent evidence, and the findings are conclusive on appeal.”)
(Citations omitted).
Defendant has failed to include either a verbatim
transcript of the relevant portions of the trial, or a valid
narrative of the facts as required by Rule 9. We cannot address
Defendant’s arguments on appeal and, therefore, dismiss them.
See Joines v. Moffitt, __ N.C. App. __, __, 739 S.E.2d 177, 182-
83 (2013); Baker v. Baker, 115 N.C. App. 337, 339, 444 S.E.2d
478, 480 (1994).
In addition, we note the Preliminary Equitable Distribution
Inventory Affidavit of Defendant included in the record was not
executed by Defendant and, though Defendant’s affidavit does
include a listing for “Rolex Mens [sic] Watch,” it indicates
Defendant’s proposed distribution of this Rolex watch should be
to Plaintiff, not Defendant.
Finally, Plaintiff and Defendant agreed upon and signed a
Pre-Trial Equitable Distribution Order, which was then signed by
the trial judge and entered on 8 March 2012. By that order,
Defendant stated that he agreed “with the facts and issues
classified as agreed upon and stipulates that the facts and
issues classified as being in dispute are accurately reflected
and that there are no other issues to be determined by the
[trial court.]” Defendant did not list the Rolex watch as
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disputed property and, in fact, it was not included in the pre-
trial order at all. Concerning the alleged $22,000.00 included
in the account ending in 1746, Defendant did not mention those
funds in the pre-trial order, and simply stated that the trial
court should “divide” the assets remaining in that account
between Defendant and Plaintiff.
Dismissed.
Judges HUNTER, Robert C., and ELMORE concur.
Report per Rule 30(e).