Carlton and Susan met in 2004 at Chrome’s Bar and Grill in Fayetteville where Carlton was a customer and Susan was working as a bartender. They began dating and Susan became pregnant with their first child. By 2009 they separated and were divorced in 2011.
Carlton owned a business before, during and after their marriage called Air Tech. Evidently, Carlton failed to obtain a prenuptial agreement to protect his business assets before he married Susan. During their marriage, Susan did not contribute any money to their bank accounts and therefore, Carlton mistakenly argued, none of the money in those accounts were “marital.”
The North Carolina Court of Appeals issued an opinion on 2 September 2014 in the Clark v. Dyer matter. Attorney Terry Garner represented the Defendant, Susan Belmain Dyer at trial but Susan had no representation on appeal. Kimberly M. Ferrier represented Plaintiff, Carlton Clark, Jr., both in the trial court and on appeal.
At trial, Carlton and Susan were each awarded 50% of the marital property. On appeal, the Court of Appeals summarized Carlton’s argument as “the trial court gave [Susan] the gold mine, while he got the shaft” referencing the Jerry Reed song:
“‘Goodbye, turkey. My attorney will be in touch.’ So I decided right then and there I was gonna do what’s right[.] Give ‘er her fair share but, brother, I didn’t know her share was gonna be that much. She got the goldmine . . . I got the shaft. . . . They split it right down the middle, And then they give her the better half.” Jerry Reed, She Got the Goldmine (I Got the Shaft), on The Man with the Golden Thumb (RCA Records 1982).
The Court of Appeals found many flaws in Carlton’s appellate brief including inaccurate references to the record and transcript and the Court somewhat chastised Carlton for dwelling on the circumstances around the inception of his relationship with Susan which the Court found irrelevant to the appeal. The Court of Appeals also found that all of Carlton’s earnings during the marriage were marital and thus all of the funds he deposited to the bank accounts which he contended were his separate property (under some flawed theory that because Susan did not make any contributions his earnings must be his) were marital.
Carlton also argued unsuccessfully on appeal that the $22,637.29 he was ordered to pay toward Susan’s attorney fees should have been treated as marital debt. The Court of Appeals found that a debt is one incurred during the marriage and this debt was incurred after the parties separated and found the argument to be frivolous. And he also argued unsuccessfully that Susan failed to get an appropriate business valuation of his business. The Court of Appeals found that “To the extent that the trial court lacked evidence on these valuations, plaintiff, as the owner and operator of these businesses, would be primarily at fault, as he had all of the information regarding his “separate business property[.]” (See our blog on business valuation for more information on that subject).
This case teaches us several things. First, get a prenup and/or postnup to protect your business assets. Second, don’t mistakenly assume that keeping your bank accounts separate somehow makes the money you earn during the marriage your separate funds. Third, get an expert to properly value your business and ensure that testimony is properly presented. Finally, if you lose at trial and decide to appeal, make sure your brief is accurate and on point.