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Wilkins v. Wilkins8/17/1993
equitable distribution should be made.
Becker, 88 N.C. App. at 607-08, 364 S.E.2d at 176-77. Here, the record is unclear as to whether the ancillary order awarded defendant possession of the marital residence as part of the award of alimony pendente lite. The ancillary order is not included in the record on appeal. The order is mentioned in finding of fact No. 22, where the trial court stated
That the Plaintiff and Defendant entered into a Consent Order in an ancillary proceeding in the General Courts of Justice, Guilford County, styled "Shirley Evans Wilkins vs. Homer Gene Wilkins" 89 CVD 6646, wherein Mr. Wilkins was obligated to pay to Mrs. Wilkins the sum of $600/month, for alimony, pendente lite, as well as being responsible for any reasonable and necessary uninsured medical and dental expenses. Said order also obligated Mr. Wilkins to be financially responsible
for all reasonable and necessary routine maintenance and repairs of the residence of the parties provided that an equitable distribution adjustment at the time of the equitable distribution hearing would be preserved.
However, this finding of fact fails to disclose whether the ancillary order awarded defendant possession of the marital residence as part of the award of alimony pendente lite.
Accordingly, upon remand the trial court shall inquire as to whether the marital residence was awarded to defendant as part of the ancillary order for alimony pendente lite. If use of the marital residence was not awarded to defendant as part of the ancillary order for alimony pendente lite, the trial court may consider defendant's share of the rental value of the marital residence as a distributional factor pursuant to G.S. 50-20(c). Becker, 88 N.C. App. at 607-08, 364 S.E.2d at 176-77. If use of the marital residence was awarded to defendant as part of the ancillary order for alimony pendente lite, the trial court shall not consider the rental value of the residence as a distributional factor. G.S. 50-20(f) ("The court shall provide for an equitable distribution without regard to alimony for either party.").
IV.
Finally, defendant argues that the trial court erred when it denied her motion for a new trial. Based on the errors of law discussed supra, we conclude that defendant is entitled to a new trial. Accordingly, we reverse the 12 December 1991 equitable distribution order and remand for a new trial.
Reversed and remanded for a new trial.
Disposition
Reversed and remanded for a new trial.
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