
    Robbie SQUIRRELL, Appellee v. Jessica Lynn QUEEN, Appellant.
    No. 07-CV-049.
    Supreme Court of the Eastern Band of Cherokee Indians.
    July 15, 2010.
    
      Larry Nestler, for defendant appellant.
   BOYUM, Chief Justice.

The defendant appeals from the order of equitable distribution of May 27, 2007. The appellee has not filed a brief in this appeal. The parties did not own real property. They are both tribal members and this controversy falls within the jurisdiction of the court. It is an equitable distribution case of first impression for this Court, with two issues to be determined:

1) Did the trial court err in finding that the mobile home and furniture purchased by appellant with funds from her per capita distributions were marital property subject to equitable distribution?
2) Specifically, did the trial court err in refusing to grant the wife possession and ownership of the automobile?

We hold that the trial court erred in its determination that those items were marital property.

Jessica Queen, then age 18, married Robbie Squirrel on February 2nd of 2006. She obtained her GED in June of 2006 and received her minor’s trust fund distribution (commonly called a “big per cap”) oí' $47,000 in August of 2006. She then began receiving her bi-annual per capita distribution. Squirrel also received his biannual per capita payments. Both parties essentially lived off Ms. Queen’s big per capita and their bi-annual per capita payments, charity from family members and some very meager earnings from Squirrel during the marriage. (R. at 42, 43.) The couple separated on January 10th or 11th of 2007, (R. at 48), and the marriage officially ended in May of 2007.

Ms. Queen deposited her big per capita payment in a bank account that she originally intended to place in a separate account, but after an argument with her husband, eventually opened in both their names. (R. at 45.) This was confirmed by Squirrel’s testimony. (R. at 35.) Her big per capita money was used primarily to purchase a mobile home for $19,500, (R. at 14), and other items such as the furniture listed in her affidavit. (R. at 17.) She also used her big per cap to pay the $2,000 down payment on the automobile and paid the rest of the $4,500 purchase price out of one of her bi-annual per capita payments. (R. at 18, 22.) There is no evidence in the record concerning her intent to give any of these items to the marriage, (R. at 48), but she did testify specifically that she did not intend that the car be a gift to the marriage, (R. at 18), and that it was titled in a third person’s name. (R. at 19.) She testified that although she did not have a driver’s license, she was pregnant and needed the car to get her to and from the hospital. (R. at 18.)

Ms. Queen was never specifically asked, nor did she volunteer, whether she intended the remaining purchases to be gifts to the marriage. There was some contradictory testimony where she admitted that her purchases were for both of them, their child and their marriage’s benefit. (R. at 55.) She also testified that the trailer was purchased from Squirrel’s uncle, titled in Mr. Squirrel’s cousin’s name and placed on property leased by Squirrel but owned by Squirrel’s grandpa. (R. at 14, 15, 33.) Ms. Queen testified that Squirrel took monies out of their joint account and that she then retrieved the money from him and put it in a new account solely in her name. (R. at 26, 48.) She also testified that Mr. Squirrel never deposited any money into the joint account (R. at 20.) Additionally, there was conflicting testimony about her intention concerning some $10,000 in cash that was used by Squirrel to purchase personal items, such as clothing. (R. at 50.)

Cherokee Code (hereinafter C.C.) § 50-11, Property Distribution, applies here and states that “[ejither former spouse may file an action in the Cherokee court seeking equitable distribution of personal property and real property, owned or acquired jointly by the parties during the marriage.” (emphasis added) Common usage of “acquired” means “[t]o gain possession of’ or “[t]o get by one’s own efforts” and will guide us in the initial determination. The American Heritage Dictionary (2nd College Ed.1985). The Cherokee Code does not define the phrase “owned ... jointly by the parties during the marriage”, so the Court must look to North Carolina law for guidance. C.C. § 50-13. North Carolina’s Equitable Distribution Act and surrounding case law provide 30 years worth of guidance.

The first determination to be made is whether the per capita payments received by defendant appellant were “acquired jointly during the marriage.” Tribal per capita payments represent 50% of the distributable net revenue from Class XI and Class III gaming activities of Harrah’s Casino under a compact with the State of North Carolina that has been approved by the Secretary of the Interior under 25 U.S.C. § 2710(b)(3). C.C. § 16-1.08(b). A per capita payment is paid to each enrolled member who is otherwise not disqualified under C.C. § 16C-4(b) of the Tribal Gaming Ordinance.

Per capita payments are made biannually to all tribal members but the payments designated for minors are placed in a Minors Trust Fund, as defined in C.C. § 16C-2, which is then supervised by an Investment Committee, under C.C. § 16C-6. These monies are placed in a trust and the principal, plus any passive appreciation in the form of earned interest or dividend, is kept until a triggering event leads to distribution to the minor. Unless this money is advanced to the minor for education or health care, it is distributed when an enrolled member reaches the age of 18, if they have obtained their high school diploma or GED, or age 21 if not. C.C. § 16C~6(5)(A). This one time distribution of the full amount of the Minors Trust Fund is commonly referred to as the “big per capita”, which occurs at the end of a calendar quarter following a triggering event. C.C. § 16C-6(h). Following the disbursement of the “big per capita”, an individual then begins to receive the biannual payments in an amount identical to that received by every adult tribal member. We hold that per capita payments are not acquired jointly during the marriage.

The question then turns on whether the personal property purchased with per capita monies came to be “owned ... jointly” and thus converted into marital property. This determination depends upon the presence or absence of donative intent as shown by the totality of the circumstances. N.C.G.S. § 50-20(b)(2) states that “[p]roperty acquired by gift from the other spouse during the course of the marriage shall be considered separate property only if such an intention is stated in the conveyance”, and there is no evidence here that these transfers should be considered to be gifts. There was no testimony that they were acquired for a birthday, Milner v. Littlejohn, 126 N.C.App. 184, 187, 484 S.E.2d 453, disc. review denied, 347 N.C. 268, 493 S.E.2d 458 (1997), involved transfer of real property to tenants by the entirety, McLean v. McLean, 88 N.C.App. 285, 289, 363 S.E.2d 95 (1987), aff'd by 323 N.C. 543, 374 S.E.2d 376 (1988), or any language indicating a desire to make a gift. Additionally, appellee has contributed absolutely nothing to any of the purchases so under the source of funds theory, the marital estate would be entitled to the same proportion. Wade v. Wade, 72 N.C.App. 372, 382, 325 S.E.2d 260, review denied, 313 N.C. 612, 330 S.E.2d 616 (1985). Later cases, in recognizing this theory, note that it “dictate[s] that each party retain as separate property the amount he or she contributed to the down payment....” McLeod v. McLeod, 74 N.C.App. 144, 154, 327 S.E.2d 910, cert. denied, 314 N.C. 331, 333 S.E.2d 488 (1985). Indeed, the plain language of Section 50—20(b)(2) indicates that “[p]ropertv acquired in exchange for separate property shall remain separate property regardless of whether the title is in the name of the husband or wife or both and shall not be considered to be marital property unless a contrary intention is expressly stated in the conveyance.”

This Court holds that the per capita funds received by members of the EBCI are the separate property of the recipient, whether married or single. Per capita funds deposited by a recipient in a joint account of recipient and spouse remain separate property. When a married person uses their per capita money to purchase property, the issue of whether the purchased property is separate or marital property depends upon all the circumstances surrounding the purchase and use of the property.

We hold that the trial court erred in holding that the car purchased by defendant Queen was marital property. It is clear that per capita payments received by members of the Eastern Band of Cherokee Indians are the separate property of the recipient. Queen used only her per capita funds to pay for the car and she testified that she did not intend it to be a gift to the marriage. The automobile was to be used by her to go to and from the hospital during her pregnancy. The automobile is Queen’s separate property and not subject to equitable distribution.

The trial court also erred in holding that the trailer and furniture purchased by Queen was marital property. Both parties agree that Queen paid for the trailer and the furniture listed in appellant’s affidavit entirely with her per capita funds. No contrary intention to convert it to marital property was clearly shown by appellee so that property remained as separate property for equitable distribution purposes.

For the foregoing reasons, the decision of the trial court of May 27, 2007 is reversed as to the mobile home, the furniture and the automobile. This case is remanded to the Cherokee Court.

MARTIN, Justice,

dissenting in part.

The defendant appeals from the order of equitable distribution of May 27, 2007. The appellee has not filed a brief in this appeal.

The parties do not own any real property. This is an equitable distribution case.

Only the appellant has filed a brief with this Court. The only issues before the Court are those argued by the appellant in her brief. She argues two issues:

1. “Did the trial court err in failing to find that the per capita distribution received during the marriage was the separate property of one spouse and thus the property acquired with the distribution remained the separate property of that spouse and was not subject to equitable distribution?”

2. “Did the trial court err in refusing to grant the wife possession and ownership of her automobile ...”

Cherokee Code, § 50-11, Property Distribution, is applicable to this appeal.

(a) Either former spouse may file an action in the Cherokee court seeking equitable distribution of personal property and real property, owned or acquired jointly by the parties during the marriage.

The per capita funds received by members of the EBCI are the separate property of the recipient, whether married or single. Per capita funds deposited by a recipient in a joint account of recipient and spouse remain separate property.

When a married person uses his per capita money to purchase property, the issue of whether the purchased property is personal or marital property depends upon all the facts and circumstances of the purchase and use of the property.

After her marriage to the appellee, the 18 year old appellant received $47,000.00 of per capita funds. She and her husband opened a bank account in their joint names and she deposited about $25,000.00 of her per capita money in the account.

Thereafter the parties used the appellants’ per capita funds to purchase a trailer where they lived, marital assets that they both used such as furniture, fixtures, entertainment systems, televisions, food and clothing. The appellant became pregnant and a child was born requiring use of her per capita funds. Both parties filed itemized lists of the marital property. The following evidence from the transcript supports a finding that the property purchased with the per capita funds of the appellant was marital property:

Saunooke: During the time that you were married to Mr. Squirrel did you purchase items during your marriage that you both used?
Queen: Yes sir.
Saunooke: Okay, and do you know how much you paid for that trailer?
Queen: 19,500.
Saunooke: And the funds for that trailer, where did they come from?
Queen: They came from my big per cap.
Saunooke: Your big per cap? How much was in that big per cap?
Queen: 47,000.
Saunooke: And did you get that after you were married?
Queen: Yeah.
Saunooke: And with the big per cap check, when you purchased the trailer did you both live in it?
Queen: Yes Sir
Saunooke: Whose name was it titled in?
Queen: It was in his, I guess she’s his cousin’s name.
Saunooke: So it was never titled to you personally?
Queen: No.
Saunooke: You just paid the money for it.
Queen: Yep.
Martin: Why would you pay 19,500 dollars for something and not put it in your name?
Queen: Well, we was kept getting told that we would get the title switched over to our name but it just never was done.
Saunooke: Well did you say, if I buy this and we ever get divorced I’m taking my money back.
Queen: No.
Saunooke: Did you tell him that you bought the trailer and intended for it to only be your property and not for both of you to use?
Queen: No.
Saunooke: Well, what does it list?
Queen: Well, it list stuff that I had purchased during the marriage.
Saunooke: Those are things you purchase during the marriage?
Queen: Yeah.
Saunooke: And who has possession of all of those items right now?
Queen: I do.
Saunooke: So your per cap money paid for the car. And when you bought the car did you even have a license at that time?
Queen: No sir.
Saunooke: Did you intend it to be a gift to the marriage?
Queen: No sir.
Saunooke: Well you couldn’t drive it could you?
Queen: No.
Saunooke: So your telling the court you bought a car that you couldn’t drive but didn’t mean it to be a gift to the marriage?
Queen: The car was meant for my hospital; well I had to go back and forth to the hospital.
Saunooke: Well who drove it?
Queen: Well he did.
Saunooke: So Robbie drove you to the hospital.
Queen: Yeah.
Saunooke: And did you have a bank account while you were married with Mr. Squirrel?
Queen: Yes sir.
Saunooke: Whose name was the bank account in?
Queen: It was in mine and his name.
Saunooke: You both had access to it?
Queen: Yes.
Saunooke: You both put money in that account?
Queen: I put money in the account, he didn’t.
Saunooke: And did you use your per cap money to pay expenses during the marriage?
Queen: Um
Saunooke: Light bill, utilities?
Queen: Yes.
Saunooke: Did he use his money to pay expenses during the marriage?
Queen: Um, not really.
Saunooke: Did you intend at the time that you used your funds that they would only be for your personal use and no one else’s.
Queen: No.
Saunooke: Okay. Does this equitable distribution affidavit accurately reflect what you believe the value of your marital assets are?
Queen: Yes sir.
Saunooke: And that bank account was in just your name or in yours and Robbie’s name?
Queen: Mine and his.
Saunooke: Did at anytime, did Miss Queen tell you that her per cap money was only for her?
Owle: No sir.
Saunooke: Did either one of them ever say to the best of your knowledge that they wanted to keep their assets separate or keep things separate?
Owle: No.
Saunooke: What did you collectively agree to use these monies for?
Squirrel: Buy a trailer, purchase a trailer, furniture for the trailer, and basically bills, stuff like that.
Saunooke: Living expenses?
Squirrel: Yes.
Saunooke: You bought food for the year or so that you were married. Is it safe to say that other than the job you say you had, you were living off her per cap and your per cap together, that was your basic funding during the marriage?
Squirrel: Yeah.
Saunooke: And that’s what you bought and paid your bills with?
Squirrel: Yeah.
Saunooke: That you bought your clothing and your marital property with?
Squirrel: Yes.
Saunooke: You didn’t have any other sources of income did you?
Squirrel: No, my grandma would give me money that was about it.
Queen: Yeah, that money right there was actually for was spent on the furniture.
Nestler: And I guess it was your testimony, that Mr. Saunooke asked you that um everything that you had, I guess everything that was purchased with anything that was in the trailer was purchased with either your big per cap or your small per caps.
Queen: Yes sir.
Saunooke: I’m not saying that he paid all the bills, the money that paid your marital bills, that’s biEs you had while you and he were married came partly from his per cap.
Queen: Yeah partly.
Saunooke: And partly from yours.
Queen: Yes.
Saunooke: You jointly contributed to your marriage didn’t you?
Queen: Yes.
Saunooke: You intended to stay married to him for as long as you both lived didn’tyou?
Queen: Yeah.
Saunooke: It was your intent wasn’t it to utilize whatever resources were available for both of you to benefit, for your child to benefit, for your marriage to benefit. That was your intent wasn’t it?
Queen: Yes.
Transcript on pages: 13, 14-15, 16, 20, 21, 24-25, 28, 29, 30, 40-42, 48, 50, 51-52, 54,55.

Both parties filed equitable distribution affidavits in this case. The appellee lists the following property subject to distribution:

1. Mobile Home—$19,000.00
2. Car—$4,000.00
3. Home Theater—$1,500.00
4. Furniture—$2,400,00
5. Television—$1,800.00

Appellant does not list any property subject to equitable distribution but does list separate property belonging to her and appellee.

The testimony supports the conclusion that the appellant intended that the use of her per capita funds was for their mutual benefit and to secure their lifestyle and future together as a married couple. The mobile home acquired with the per capita monies is marital property and subject to equitable distribution. The parties lived in the mobile home as a married couple with their infant child. They used the trailer with the furniture and other contents as their home. They used appellant’s money to buy the trailer. It was “owned or acquired jointly” by them. They jointly contributed to the marriage and she intended to stay married to him “as long as they both lived.”

To hold that the mobile home was her separate property contradicts the evidence as well as common sense. The trial judge saw the witnesses and heard them testimony. The record supports his decision to hold the mobile home as marital property and subject to equitable distribution.

However, the trial court erred in holding that the automobile purchased by the appellant with her per capita funds was marital property. The appellant testified that she did not intend that the automobile was a gift to the marriage. It was for her use to go to and from the hospital as she was pregnant. There is no evidence that the car was marital property. It was appellant’s personal property and not subject to equitable distribution.

Except as hereby amended, the order by the trial court of May 27, 2007 should be Affirmed, and the case remanded to the trial court for further proceedings not inconsistent with this opinion.  