              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA16-813

                                Filed: 21 March 2017

Buncombe County, No. 13 CVD 1382

JEANNE LUND, Plaintiff,

             v.

ROBERT LUND, Defendant.


      Appeal by plaintiff from order entered 1 April 2016 by Judge Ward D. Scott in

Buncombe County District Court. Heard in the Court of Appeals 8 March 2017.


      Mary Elizabeth Arrowood for plaintiff-appellant.

      Ana M. Prendergast and Siemens Family Law Group, by Jim Siemens, for
      defendant-appellee.


      TYSON, Judge.


      Plaintiff, Jeanne Lund (“Wife”), appeals from the trial court’s revised equitable

distribution order, entered after this Court’s remand for further findings of fact. We

affirm.

                                   I. Background

      Wife and Defendant (“Husband”) married on 14 February 1997, separated on

5 January 2013, and divorced on 6 February 2014. Prior to the date of absolute

divorce, Wife had sued Husband for equitable distribution and sought an unequal

distribution of the marital estate. Husband answered and counterclaimed for an
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                                  Opinion of the Court



equitable and equal distribution of the marital estate. The matter came before the

trial court and was heard during a four-day trial. On 11 August 2014, the trial court

entered an equitable distribution order, which divided the marital estate equally.

      The trial court heard testimony regarding the value of the former marital

residence located at 403 Sugar Hollow Drive, Fairview, North Carolina.          Three

licensed real estate appraisers testified as expert witnesses regarding the fair market

value of the marital residence. Two of the appraisers testified on behalf of Wife. Mark

Morris, Husband’s witness, opined $263,000.00 was the value of the marital residence

on the date of separation.

       The court found Mr. Morris was the only appraiser to testify and opine to the

value of the marital residence on the date of separation. The court found Mr. Morris’s

testimony as credible, determined $263,000.00 to be the value of the marital

residence, and distributed that property to Husband.

      The trial court further found that neither party had presented evidence

regarding the value of the marital home at the date of distribution.        The court

concluded there was no divisible property in connection with the marital home, since

neither party had presented evidence tending to show any increase or decrease in

value of the home during the time period between the parties’ separation and

distribution of the property.




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      Wife appealed the 11 August 2014 order to this Court. This Court reversed the

trial court’s finding “that neither party introduced evidence of divisible property

associated with any passive increase (or decrease) in value of the marital home during

the period of separation[.]” Lund v. Lund, __ N.C. App. __, __, 779 S.E.2d 175, 184

(2015) (“Lund I”). This Court remanded the issue to the trial court “for more findings

on this issue,” and to revise the order, if necessary, to achieve an equitable division

of the parties’ marital property. Id. The trial court did not hear, receive, or consider

further evidence upon remand, and entered a revised order on 1 April 2016. Wife

appeals.

                                       II. Issues

      Wife argues the trial court erred by: (1) finding Wife’s evidence on the value

of the marital home was speculative and not credible; (2) failing to value and

distribute, as divisible property, the increase in value of the marital home from the

date of separation through the date of trial; (3) failing to properly consider the

unequal distributional factors raised by Wife and to make appropriate findings of fact

with regard to those factors; and, (4) failing to conduct a further hearing on remand

as to the date of distribution valuations and unequal distribution factors.

                                  III. Standard of Review

             Equitable distribution is vested in the discretion of the trial
             court and will not be disturbed absent a clear abuse of that
             discretion. Only a finding that the judgment was
             unsupported by reason and could not have been a result of


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             competent inquiry, or a finding that the trial judge failed
             to comply with the statute, will establish an abuse of
             discretion.

Wiencek-Adams v. Adams, 331 N.C. 688, 691, 417 S.E.2d 449, 451 (1992) (citations

omitted). The trial court’s findings of fact are conclusive on appeal, if supported by

competent evidence. See Alexander v. Alexander, 68 N.C. App. 548, 552, 315 S.E. 2d

772, 776 (1984).

      N.C. Gen. Stat. § 50-20 requires the trial court to conduct a three-step analysis

when making an equitable distribution of the marital assets: (1) classify the property,

(2) calculate the net value of the property, fair market value less encumbrances, and

(3) distribute the property in an equitable manner. See Cable v. Cable, 76 N.C. App.

134, 137, 331 S.E. 2d 765, 767, disc. review denied, 315 N.C. 182, 337 S.E. 2d 856

(1985). An equal division of the marital property is required unless, in the exercise of

its discretion, the court determines an equal distribution is inequitable. N.C. Gen.

Stat. § 50-20(c) (2015).

                           IV. Value of the Marital Residence

      Wife argues the trial court abused its discretion by finding her testimony

regarding the value of the marital residence not credible, and by failing to value and

distribute the increase in value of the marital home between the dates of separation

and distribution. We disagree.




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      A passive increase or decrease in the value of the marital residence between

the date of separation and date of distribution is divisible property and must be

distributed by the trial court. N.C. Gen. Stat. § 50-20(b)(4)(a) (2015). Marital property

is valued as of the date of separation, while divisible property is valued as of the date

of distribution. N.C. Gen. Stat. § 50-20(b) (2015). The trial court’s initial order stated

that no evidence was presented regarding the value of the marital home as of the date

of distribution. In her prior appeal, Wife argued she did, in fact, present evidence

through her own opinion that the marital home was valued at $300,000.00 on the

date of distribution. See Lund I, __ N.C. App. at __, 779 S.E.2d at 182.

      The trial court found none of the three appraisers had opined to the value of

the marital home on the date of distribution.         The trial court addressed Wife’s

testimony in its revised order. The court found that Wife had testified she “would

like to say” the value of the home was between $290,000.00 and $300,000.00 at the

time of separation, and at the time of trial “she would like to say [the value was]

closer to $300,000.00.” The trial court declined to “choose from a range of values and

[found] Plaintiff’s testimony to be speculative.” The court also specifically determined

Wife’s testimony and estimates of the value of the marital home was speculative and

not credible. The court found “[n]either party presented credible evidence of a date

of distribution value which differs from the date of separation value relied upon by




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the Court.” The court again concluded no divisible property existed to distribute with

regard to the marital home.

      As our Court recognized in Lund I, “a finding by the trial court of ‘no credible

evidence’ being presented on the issue would not have been error, since the trial court

is free to give any weight (or no weight) to any evidence presented.” Id. (citing Bodie

v. Bodie, 221 N.C. App. 29, 38, 727 S.E.2d 11, 18 (2012)) (emphasis original). Upon

remand, the trial court made findings regarding Wife’s testimony of the value of the

marital residence, and specifically found her testimony was not credible.         This

determination rests within the discretion, duty, and prerogative of the trial court,

and will not be disturbed on appeal, when supported by findings of fact. Id.

      Myron Creson, one of the appraisers called by Wife, presented the court with

a written report stating his opinion of the value of the marital residence as of 23

January 2014, approximately four months prior to the commencement of trial. Wife

argues Mr. Creson’s appraisal was evidence of the increased value of the property at

the time of trial. The trial court made no finding on the specific value amount Mr.

Creson had opined. The court found “[n]o appraiser called by either party provided

an opinion of the date of distribution value of the marital home.” The equitable

distribution order was entered in August 2014, approximately eight months after the

date of Mr. Creson’s appraisal. Apparently, the trial court determined Mr. Creson’s

opinion was too remote in time to be considered a date of distribution value. Wife has



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failed to show this determination was manifestly unsupported by reason to amount

to an abuse of discretion. Wiencek-Adams, 331 N.C. at 691, 417 S.E.2d at 451. Wife’s

arguments related to the increased value of the marital home are overruled.

                      V. Consideration of Distributional Factors

       Wife argues the trial court failed to properly consider distributional factors she

presented at trial and failed to make appropriate findings of fact with regard to these

factors.

       In her brief, Wife sets forth, in detail, twelve distributional factors she claims

were not properly considered by the trial court in making its equal distributive award.

The only material changes to the trial court’s order on remand are discussed above

and pertain to the value of the marital residence.

       In her initial appeal before this Court, Wife argued the trial court erred by

classifying, valuing, and distributing certain marital and divisible property, and by

determining an equal distribution of the marital property was equitable. See Lund I,

__ N.C. App. at __, 779 S.E.2d at 177.

       A review of Wife’s appellant brief before this Court in Lund I shows Wife made

the identical argument before this Court in her previous appeal. She set forth, word

for word, the same factors she now claims support an unequal distribution award.

This Court rejected Wife’s argument in Lund I, and held the trial court did not abuse

its discretion in determining an equal distribution was equitable. __ N.C. App. at __,



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779 S.E.2d at 178. Wife’s attempt to have this Court reconsider an issue previously

considered and ruled upon is improper and dismissed. See Lea Co. v. N.C. Bd. of

Transp., 323 N.C. 697, 699, 374 S.E.2d 866, 868 (1989) (“A decision of this Court on

a prior appeal constitutes the law of the case, both in subsequent proceedings in the

trial court and on a subsequent appeal.”).

                              VI. Hearing After Remand

      Wife argues a hearing was required upon remand in April 2016 to determine

values of the property and distributional factors at that time, and the trial court erred

by failing to conduct a further hearing. We disagree.

      The trial court followed this Court’s mandate to consider and make findings

upon remand to determine the existence of divisible property with regard to the

marital residence. The trial court considered the competent evidence it had received

at trial and made further findings. No further hearing was required to address the

mandate of this Court. In Lund I, this Court affirmed the trial court’s determination

that an equal division of the marital estate was equitable. Lund I included no

mandate to the trial court to consider additional evidence on that issue. Wife’s

argument is overruled.

                                    VII. Conclusion

      Wife has failed to show the trial court abused its discretion by determining

Wife’s testimony was not credible regarding the date of distribution value of the



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marital residence and by finding no evidence showed the value of the marital

residence on the date of distribution. The trial court was not mandated in Lund I to

hold a new hearing upon remand.

      Wife’s argument pertaining to the trial court’s consideration of distributional

factors and conclusion that an equal division is equitable was raised and considered

during Wife’s initial appeal in Lund I and is dismissed.        The revised equitable

distribution order entered by the trial court upon remand is affirmed. It is so ordered.

      AFFIRMED.

      Judges ELMORE and Judge DIETZ concur.




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