              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA19-638

                                 Filed: 5 May 2020

Cabarrus County, No. 16-CVD-1938

KIMBERLY BEST (formerly Best-Staton), Plaintiff,

             v.

RANDALL STATON, Defendant.


      Appeal by Plaintiff from judgment entered 21 December 2018 and from order

entered 18 September 2018 by Judge William G. Hamby, Jr., in Cabarrus County

District Court. Heard in the Court of Appeals 19 February 2020.


      Plumides, Romano, Johnson, & Cacheris, P.C., by Richard B. Johnson, for
      Plaintiff-Appellant.

      No brief filed for Defendant-Appellee.


      DILLON, Judge.


      Plaintiff appeals from an Order Dismissing Plaintiff’s Claim for Equitable

Distribution and Denying Plaintiff’s Motion to Dismiss Defendant’s Claim for

Equitable Distribution and from Judgment of Equitable Distribution.

                                   I. Background

      On 25 April 2009, Defendant Randall Staton (“Husband”) and Plaintiff

Kimberly Best (“Wife”) were married.       In November 2016, Husband and Wife

officially separated.
                                    BEST V. STATON

                                   Opinion of the Court



      In this action, Husband and Wife each filed a claim seeking equitable

distribution. Wife filed her claim for equitable distribution three months before the

parties separated.    One month before the parties separated, Husband filed a

responsive pleading, which included his statement of intent to file a claim for equitable

distribution.   Then, a month after the parties separated, Husband filed his

counterclaim for equitable distribution.

      Husband and Wife each moved to dismiss the other’s claim for equitable

distribution. The trial court granted Husband’s motion and denied Wife’s motion,

reasoning that because Wife’s claim was filed before the parties’ date of separation,

it lacked jurisdiction over her claim.

      Later, in December 2018, the trial court entered a Judgment of Equitable

Distribution based on Husband’s claim.

                                         II. Analysis

      Wife makes three arguments on appeal, which we address in turn.

                            A. Subject Matter Jurisdiction

      First, Wife argues that the trial court did not have subject matter jurisdiction

over Husband’s equitable distribution claim. We disagree and conclude that the trial

court had jurisdiction over that claim.




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                                   Opinion of the Court



      Whether a trial court has subject matter jurisdiction is a question of law,

reviewed de novo on appeal. Azure Dolphin, LLC v. Barton, 371 N.C. 579, 594, 821

S.E.2d 711, 722 (2018).

      Our courts have consistently found there to be no subject matter jurisdiction

where a party files an equitable distribution claim prior to the date of the couple’s

separation. See, e.g., Atkinson v. Atkinson, 350 N.C. 590, 590, 516 S.E.2d 381, 381

(1999) (per curiam). However, our Court has found subject matter jurisdiction over

a defendant’s counterclaim for equitable distribution filed after separation though

plaintiff filed her complaint for equitable distribution before the date of separation.

Gurganus v. Gurganus, 252 N.C. App 1, 4-5, 796 S.E.2d 811, 814 (2017).

      Wife argues that Husband’s statement in his responsive pleading filed a month

before separation was, in effect, a claim for equitable distribution. We disagree.

Husband did not pray for equitable distribution in that pleading, but rather simply

prayed that he be allowed to file such claim when the parties separated.             He

specifically requested to “be allowed to file for equitable distribution upon separation

of the parties or a ruling on the Divorce from Bed and Board.” (Emphasis added).

      Wife, though, contends that this case is controlled by our decision in Coleman

v. Coleman, 182 N.C. App. 25, 641 S.E.2d 332 (2007). In that case, we determined

that a counterclaim that “hereby requests and reserves the right for equitable

distribution” was a valid equitable distribution claim. 182 N.C. App. at 26, 641 S.E.2d



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                                   Opinion of the Court



at 334 (emphasis added). We held that the defendant’s “request” was “sufficient to

put [p]laintiff on notice that [d]efendant was [presently] asking the court to equitably

distribute the parties’ marital and divisible property[.]” Id. at 29, 641 S.E.2d at 336.

Our Court concluded that the use of the word “request” showed that “[the d]efendant

did not merely assert that she intended to file a claim for equitable distribution . . .

at some indefinite time in the future.” Id. at 30, 641 S.E.2d at 337.

      But Husband’s language in his initial pleading is different. Husband merely

expressed an intent to file an equitable distribution claim in the future “upon

separation of the parties[.]” Husband’s did not pray for equitable distribution until

after the couple’s date of separation. Therefore, we conclude that the trial court had

subject matter jurisdiction over Husband’s equitable distribution claim.

                         B. Property Value of Marital Home

      Wife next argues that the trial court abused its discretion when it determined

on its own that the marital home had a property value increase of $23,700 from the

date of separation to the date of the hearing, based on the property’s tax value.

      In its order, the trial court noted that the parties agreed that the marital home

had a net value at the time of separation of $91,195. The trial court then made

findings which generally reflected this value, finding a gross value of $352,000 and a

debt of $260,805 at the time of separation (for a net value of $91,195). However, the




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                                   Opinion of the Court



trial court found that after the date of separation, the value of the marital home

passively increased in value by $23,700:

             Item I-8 is the passive increase in the value of the marital
             residence, which the Court determines from the public
             records to be $23,700, in the absence of any other credible
             evidence of current valuation, leaving the residence with a
             current valuation of $275,700 [sic] as opposed to the
             valuation of $252,000 [sic] at the time of separation.

Wife, though, states in her brief that neither party offered the tax value into evidence

to show a passive increase in the home value. As explained below, tax value evidence

is incompetent to prove value, and it would be an abuse of discretion for a trial court

to take judicial notice of and rely upon a tax value to support a finding. Husband has

not filed an appellee’s brief. The record is rather voluminous, and our review has not

uncovered a point in the proceeding before the trial court where the tax value was

offered by either party as evidence to prove a passive increase in value.

      The tax value – that is, the value assigned by the county in assessing ad

valorem taxes against real estate – is not competent evidence of a property’s value.

See Mfg. Co. v. R.R., 222 N.C. 330, 332, 23 S.E.2d 32, 36 (1942) (emphasis added)

(“The rule with us, ordinarily, is that evidence of tax value listings on real estate is

not competent on an issue of valuation[.]”). This is so because, as our Supreme Court

has explained, “in the valuation of [ ] land for taxation the owner is not consulted . . .

It is well understood that it is the custom of the assessors to fix a uniform rather than

an actual valuation.” Bunn v. Harris, 216 N.C. 366, 373, 5 S.E.2d 149, 153 (1939).


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                                   Opinion of the Court



We note, though, that the tax value of real property “may be considered by the fact-

finder if its introduction is not properly objected to.” Edwards v. Edwards, 251 N.C.

App. 549, 551, 795 S.E.2d 823, 825 (2017) (emphasis added).

      Though a trial court is vested with broad discretion in ordering equitable

distribution, Wiencek-Adams v. Adams, 331 N.C. 688, 691, 417 S.E.2d 449, 451

(1992), we hold that it is an abuse of discretion for a trial court rely on incompetent

evidence that was not introduced into evidence by either party. As to this issue, we

direct the trial court to act as indicated in the Conclusion section below.

                C. Plaintiff’s Consolidated Judicial Retirement Plan

      Finally, Wife argues that the trial court abused its discretion when it admitted

hearsay evidence of Wife’s consolidated judicial retirement plan. For the following

reasons, we hold that Wife has failed to preserve this issue for our review.

      Our Rules of Appellate Procedure state that “[i]n order to preserve an issue for

appellate review, a party must have presented to the trial court a timely request,

objection, or motion, stating the specific grounds for the ruling the party desired the

court to make if the specific grounds were not apparent from the context.” N.C. R.

App. P. 10(a)(1). Rule 10 also requires that the complaining party “obtain a ruling

upon the party’s request, objection, or motion.” Id.

      Wife argues on appeal that the trial court erred by admitting into evidence a

valuation of her retirement plan and an affidavit from the expert who valued it



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                                    Opinion of the Court



because “[t]he valuation and affidavit do not fall under any of the exceptions of Rule

803.” However, Wife did not object at trial to the admission of this evidence on

hearsay grounds.    Furthermore, although Wife objected to the admission of the

valuation and affidavit based on a violation of deadlines set in a pretrial order, Wife

failed to obtain a ruling upon her objection:

             [Husband’s Counsel:] And Your Honor, along with that, if
             I may … admit the affidavit of Ann Marie Joseph along
             with that - -

             [Wife’s Counsel:] Objection, I’ve never seen the affidavit.
             Didn’t even know it existed until a few minutes ago. And
             objection, uh, note - - I’d ask the court to note my exception
             to Number 15.

             [Judge:] Absolutely.

             [Wife’s Counsel:] And Your Honor, may we approach?
             (Inaudible – 03:12:30) objection with the exception to your
             ruling.

             [Judge:] Absolutely.

The parties continued to question the witness following this interaction, but the judge

never ruled on Wife’s objection and Wife never sought a ruling. Thus, Wife has failed

to preserve this issue for our review.

                                     III. Conclusion

      We hold that the trial court had subject matter jurisdiction over Husband’s

equitable distribution claim.




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                                   BEST V. STATON

                                   Opinion of the Court



      Regarding the trial court’s reliance on the tax value to support its finding of a

post-separation, passive increase in the value of the marital home, we have been

unable to locate anything in the record indicating that either party offered the tax

value as evidence for this purpose. And Husband has not filed an appellee’s brief to

counter Wife’s contention that no such evidence was offered. Therefore, we must

vacate and remand the Judgment of Equitable Distribution.

      On remand, the trial court must reconsider its finding regarding the post-

separation, passive increase in value of the marital home. If the record, indeed, shows

that the tax value was offered as evidence of a passive increase and if this evidence

was not objected to, then we direct the trial court to re-enter its judgment with a cite

from the record of that evidence. Otherwise, the trial court may make a new finding

of a passive increase (or decrease) based on any competent or unobjected-to

incompetent evidence in the record. But if there is no such evidence in the record,

then the trial court shall strike its finding regarding the passive increase in value of

the marital home.     If the trial court modifies its finding regarding the passive

increase, the trial court shall then modify the remainder of the order, if necessary, to

achieve a distribution that it determines to be equitable.

      VACATED AND REMANDED.

      Judges BERGER and COLLINS concur.




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