McAulliffe v. Wilson

254 S.E.2d 547 (1979) 41 N.C. App. 117

Thomas W. McAULLIFFE,
v.
Marjorie Ann WILSON.

No. 7826SC634.

Court of Appeals of North Carolina.

May 1, 1979.

Burns & Giordana, by William F. Burns, Jr., Charlotte, for plaintiff.

Don Davis, Charlotte, for defendant.

ROBERT M. MARTIN, Judge.

The trial court, in its conclusions of law, stated that defendant "wrongfully took the sum of Thirty Thousand Dollars ($30,000.00) from the plaintiff and that the plaintiff is entitled to be reimbursed for same and to recover interest thereon." We find this was correct. It was found by the trial court, and was not contested by plaintiff, that defendant performed a number of valuable services for plaintiff for which she was entitled to compensation. The value of these services was fixed by the trial court at $12,711. We find this to be correct also, and affirm this portion of the trial court's order.

It is well established in this jurisdiction that persons may contract among themselves for the creation of a joint interest in property (including monies in a bank account) with right of survivorship. See Wilson County v. Wooten, 251 N.C. 667, 111 S.E.2d 875 (1959). It is also the rule in this jurisdiction that, nothing else appearing, money in the bank to the joint credit of two persons is presumed to belong one-half to each person. See Smith v. Smith, 255 N.C. 152, 120 S.E.2d 575 (1959). However, where a controversy arises as to ownership, the intent of the parties will be controlling, and evidence may be received to prove such intent. See generally 10 Am.Jur.2d Banks § 374 (1963). In the instant case, there was evidence, uncontroverted, that a check made out to plaintiff was the sole deposit made to the joint account. The check represented proceeds from the sale of plaintiff's interest in the automobile dealership.

The evidence received was sharply conflicting as to the intent of plaintiff in setting up the joint account. He testified that it was solely for his convenience and was done at defendant's suggestion. Defendant's testimony, on the other hand, raises an inference that plaintiff acknowledged his obligation to defendant and was promising to care for her by opening the joint account. When there are competing inferences arising from testimony of witnesses in a case, it is for the trier of fact to decide between them. The findings of fact by a trial court in a non-jury trial have the force and effect of a verdict by a jury and are conclusive on appeal if supported by competent evidence, even though the evidence might sustain findings to the contrary. Henderson County v. Osteen, 38 N.C.App. 199, 247 S.E.2d 636 (1978). The wisdom of this rule is especially apparent in situations such as the one presented by the instant case where the cold record reveals testimony from each party that precisely contradicts that of the other, and the evidence of either party, if believed, would support a finding for that party. The trial court, having had the fullest opportunity to hear the testimony and observe the demeanor of the parties, to weigh any competent evidence either party cared to place before the court and arrive at appropriate conclusions as to the intent of the parties and the value of any services performed, should be accorded deference unless his findings and conclusions are manifestly unsupported by the record. The record before us supports the trial judge's findings and conclusions and the judgment based thereon will not be disturbed.

The award of attorney's fees to plaintiff presents another question, however. Plaintiff cites no authority to justify the award and candidly concedes that there is none. We find that the allowance of attorney's fees was erroneous, and accordingly reverse that portion of the trial court's order making the award to plaintiff.

The judgment of the trial court is accordingly affirmed in part and reversed in part.

MITCHELL and WEBB, JJ., concur.