An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                                NO. COA14-200
                       NORTH CAROLINA COURT OF APPEALS

                              Filed: 2 September 2014


KATHY BELL,
     Plaintiff,

       v.                                     Wilkes County
                                              No. 10 CVD 1004
RALPH E. BELL,
     Defendant.


       Appeal by Defendant from judgment entered 20 August 2013 by

Judge Jeanie R. Houston in Wilkes County District Court.                      Heard

in the Court of Appeals 13 August 2014.


       Vannoy, Colvard, Triplett & Vannoy, P.L.L.C., by Daniel S.
       Johnson, for Plaintiff.

       Charlotte Gail Blake for Defendant.


       STEPHENS, Judge.


                    Procedural and Factual Background

       Defendant Ralph E. Bell and Plaintiff Kathy Bell married in

1980 and separated on 22 May 2010.                 Their son, Chris Bell, was

an adult at the time of the separation.                    Plaintiff initiated

this    action    by    the    filing    of    a    complaint     for     equitable

distribution and injunctive relief on 30 July 2010.                     At the time
                                                -2-
of their separation, Plaintiff had retired from full-time work,

but    continued        to    work       part    time.      Plaintiff     had    a     401(k)

retirement account.                Defendant had become disabled in a work-

related     accident         in    2008    and    received     both    Social        Security

disability payments and a monthly lifetime retirement benefit

from his former employer.                   At about the time of the parties’

separation,           Defendant      had    received       a   workers’       compensation

payment     of    just       over    $10,000.         A    final   settlement         of    his

workers’ compensation claim after the parties separated provided

Defendant        an    additional         $37,500     as   well    a   fund    for     future

medical     expenses.             The    parties      owned    three   pieces        of    real

property:         a house on eleven acres, encumbered by a mortgage

(“the Driftwood home”); a 5.2 acre tract of land on Baptist Home

Road, encumbered by an equity line of credit (“the land”); and a

house on four acres on Baptist Home Road, unencumbered by any

debt   (“the      Baptist         Home    house”).         Plaintiff    also     owned      two

pieces of real property which had been given to her by her

parents during the parties’ marriage.

       On   30    August      2010,       the    trial     court   entered      an    interim

consent order dividing possession of certain personal property.

On 30 March 2011, Defendant fired a gun into Plaintiff’s home,

claiming a delusion that someone was holding Plaintiff and the
                                              -3-
parties’     son       hostage.          This       event    led     to   mental    health

evaluations       of     Defendant       as   well    as     the   filing     of   criminal

charges, for which Defendant received a probationary sentence.

Defendant continued to experience hallucinations and lost the

ability     to     care      for    himself.          He     allegedly       violated   his

probation    and       was     later     incarcerated        in    the    North    Carolina

Department of Correction.1                It also appears that Defendant was

involuntarily committed for some period of time.

    On 28 February 2012, the court entered additional consent

orders,    dividing        certain       personal      and    real    property     without

assigning        value    to       the   property.           The     court    awarded    to

Defendant, inter alia, the Driftwood home, the land, and all of

his retirement benefits and workers’ compensation settlement and

to Plaintiff, inter alia, her retirement account and several

vehicles in her possession, with each party’s award free from

the claims of the other.                  The court also ordered the Baptist

Home house be listed for sale, with each party to pay half of

the cost required to get the house in marketable condition.                             The

1
   Despite a statement to the contrary in the equitable
distribution order filed 20 August 2013, the transcript
indicates that Defendant did not appear at the equitable
distribution hearing, although his counsel and guardian both
appeared on his behalf. The transcript of that hearing contains
at least one reference to Defendant having been recently
released on probation.
                                           -4-
court stated its intention to use “the proceeds [of the eventual

sale] to make up [any] difference in the equity owed to either

party.”

    On 30 March 2012, the court ordered the parties to sell

approximately three acres of the land on Baptist Home Road to

raise funds for needed repairs on the Baptist Home house.                            On 15

June 2012, the court entered an order finding that Defendant was

mentally unstable and unable to participate in the equitable

distribution        proceedings.       A    subsequent            court-ordered      mental

health evaluation determined that Defendant was incompetent, and

the court appointed Timothy B. Joines as guardian of Defendant’s

estate.

    Joines appeared and testified on Defendant’s behalf at the

2 April 2013 equitable distribution hearing.                         At that time, the

Baptist      Home    house    had   not     yet       been    sold,        and    Plaintiff

testified at the hearing that the parties had agreed at some

point   to    give    the    Baptist   Home      house       to    their    son   instead.

Plaintiff     introduced      in    evidence      a    spreadsheet          which    listed

various      marital     property,        including,          inter     alia,       various

personal property kept by Plaintiff; the Driftwood home; various

retirement,     workers’      compensation,       and        pension    monies;      and   a
                                           -5-
list      of    expenses         for     which         Plaintiff       sought        partial

reimbursement including attorney’s fees.

       The court entered a final equitable distribution order on

20   August     2013    which    awarded        the    Baptist      Home    house     to   the

parties’       son.      The     court    ordered        that    the       parties’    other

personal and real property be classified and divided as set out

in   an   attached      exhibit.         That    exhibit      was     identical       to   the

spreadsheet         introduced    by     Plaintiff.          Defendant        gave    timely

notice of appeal from the final equitable distribution order.

                                       Discussion

       On appeal, Defendant argues that the trial court abused its

discretion       in     (1)      classifying          and    distributing           property

according      to     Plaintiff’s      spreadsheet          without    making       its    own

independent findings of fact on conflicting evidence and (2)

removing the Baptist Home house from the marital estate and

awarding it to the parties’ son.                      We affirm in part and vacate

and remand in part.

I. Standards of review

               Equitable distribution is governed by N.C.
               Gen. Stat. § 50-20 [], which requires the
               trial court to conduct a three-step process:
               (1) classify property as being marital,
               divisible,    or   separate  property;   (2)
               calculate the net value of the marital and
               divisible   property;   and (3)   distribute
               equitably    the   marital   and   divisible
                                     -6-
           property.    A trial court’s determination
           that    specific    property    is    to   be
           characterized as marital, divisible, or
           separate property will not be disturbed on
           appeal if there is competent evidence to
           support the determination.    Ultimately, the
           court’s equitable distribution award is
           reviewed for an abuse of discretion and will
           be reversed only upon a showing that it [is]
           so arbitrary that it could not have been the
           result of a reasoned decision.

Brackney v. Brackney, 199 N.C. App. 375, 381, 682 S.E.2d 401,

405   (2009)   (citations    and    internal   quotation    marks   omitted;

emphasis added and some alterations in original); see also Riggs

v. Riggs, 124 N.C. App. 647, 649, 478 S.E.2d 211, 212 (1996)

(“The trial court’s findings of fact . . . are conclusive if

supported by any competent evidence.              The mere existence of

conflicting    evidence     or   discrepancies    in   evidence     will    not

justify   reversal.”)     (citation     and    internal    quotation       marks

omitted; emphasis added), disc. review denied, 345 N.C. 755, 485

S.E.2d 297 (1997).        In addition, “whether to impose sanctions

and which sanctions to impose under [N.C. Gen. Stat.] § 50-21(e)

are decisions vested in the trial court and reviewable on appeal

for abuse of discretion.”          Crutchfield v. Crutchfield, 132 N.C.

App. 193, 195, 511 S.E.2d 31, 34 (1999).

II. Classification and distribution of certain marital property
                                                    -7-
      Defendant           first    argues          that     the    trial       court    abused    its

discretion in classifying and distributing property according to

Plaintiff’s             spreadsheet      without           making        its    own     independent

findings of fact on conflicting evidence.                               We disagree.

      The equitable distribution order includes nine findings of

fact, including finding of fact 9 which states that “[a]ll of

the     property          listed        on        Exhibit     A,     attached          hereto,     is

incorporated            herein     by    reference.               The     property      listed     on

Exhibit       A    is    classified          as    listed     and    divided       as    stated    on

Exhibit A.”             Exhibit A as referenced in the order is identical

to Plaintiff’s Exhibit A.                         Defendant contends that the trial

court        abused       its     discretion              because        it     “simply     adopted

[Plaintiff’s] classifications and valuations without making any

of    its         own     independent             findings,        without       providing        any

explanation, and without acknowledging that the [trial c]ourt’s

Exhibit A was Plaintiff’s Exhibit A.”                              Defendant cites no case

law     in    support        of    his        assertion           that    the     trial    court’s

“adoption” of Plaintiff’s classifications and valuations was an

abuse    of       discretion,       or       for     his     claim       that    the     court    was

required to explain or acknowledge its inclusion of Exhibit A as

part of the final equitable distribution order.                                 We agree that

                  [r]ecitations of the testimony of each
                  witness do not constitute findings of fact
                                  -8-
           by the trial judge, because they do not
           reflect a conscious choice between the
           conflicting versions of the incident in
           question which emerged from all the evidence
           presented.      Where   there   is  directly
           conflicting evidence on key issues, it is
           especially crucial that the trial court make
           its own determination as to what pertinent
           facts   are  actually   established  by  the
           evidence, rather than merely reciting what
           the evidence may tend to show.

Moore v. Moore, 160 N.C. App. 569, 571-72, 587 S.E.2d 74, 75

(2003) (citations and internal quotation marks omitted; emphasis

in original).    However, the equitable distribution order here

does not “merely recit[e] what the evidence may tend to show.”

See id. at 572, 587 S.E.2d at 75.           Rather, the court found as

fact that “[t]he property listed on Exhibit A is classified as

listed and divided as stated on Exhibit A.”             This finding of

fact indicates that the trial court made a “conscious choice”

that   Plaintiff’s   evidence   regarding    the   proper   valuation   and

classification of the parties’ real and personal property was

the most credible.    See id. at 571-72, 587 S.E.2d at 75.

       After carefully reviewing the transcript of the equitable

distribution hearing, we are unsurprised that the court adopted

Plaintiff’s classifications and valuations.          Plaintiff testified

extensively regarding the parties’ real and personal property,

as well as their sources of income and retirement accounts.             In
                                         -9-
contrast,   Joines,       the    only    witness      to   present   evidence     on

Defendant’s behalf, testified only briefly and provided evidence

on only a few parts of the parties’ marital estate.                   The court’s

inclusion   of    the    spreadsheet      to   list    the   classification      and

valuation of the listed real and personal property was not an

abuse of discretion.

      Defendant         also     specifically          challenges       (1)      the

classification of Defendant’s workers’ compensation settlement,

(2)   attorney’s    fees       awarded   to    Plaintiff,     (3)    valuation   of

Plaintiff’s vehicle, and (4) the omission of the real property

given to Plaintiff by her parents.              We address each sub-argument

in turn.

      A. Defendant’s workers’ compensation settlement

      Workers’ compensation awards

            acquired by the injured spouse during the
            marriage and before separation . . . will be
            marital property unless the party claiming
            it to be separate property (i.e., the
            injured spouse) proves by a preponderance of
            the evidence that the award, or some portion
            of it, was intended to compensate him for
            economic loss occurring after the date of
            separation and is therefore his separate
            property. . . .

            In situations where a spouse is injured
            during the marriage and prior to separation,
            but does not receive a workers’ compensation
            award until after the date of separation,
            such   an  award   nevertheless  constitutes
                                          -10-
           marital property to the extent that the
           award represents compensation for economic
           loss occurring during the marriage and prior
           to separation.    In such a case, because the
           award is not acquired during the marriage
           and prior to separation, the non-injured
           spouse will not have the benefit of the
           marital property presumption, and instead
           must, in order to support classification of
           the   award    as    marital,  prove   by   a
           preponderance of the evidence that all or
           some portion of the award is compensation
           for economic loss occurring during the
           marriage and before separation.

Freeman v. Freeman, 107 N.C. App. 644, 654, 421 S.E.2d 623, 628-

29 (1992) (citations omitted; emphasis in original).

      Defendant contends that Plaintiff presented no evidence and

the trial court made no finding of fact about what portion of

Defendant’s   workers’       compensation        settlement    was    compensation

for economic loss during the parties’ marriage and before their

separation.       However,       our review of the record reveals that

Plaintiff’s Exhibit 12 at the equitable distribution hearing was

an   “Agreement     for    Final        Compromise     Settlement    and   Release”

approved by the North Carolina Industrial Commission on 2 August

2011.   That exhibit states, inter alia, that Defendant received

$10,330.66    during       the     parties’      marriage     and    before   their

separation,   and    thus        that    award   was    properly    classified   as

marital property.         See id.
                                              -11-
       As for the settlement Defendant received after the parties

separated, Plaintiff’s Exhibit 12 indicates that the Industrial

Commission had determined that Defendant was no longer disabled

and thus no longer entitled to ongoing disability benefits as of

2   September       2008.          Defendant’s       only   evidence      regarding      the

workers’ compensation awards was that they were received for

temporary      disability.            Thus,    the    uncontradicted       evidence      was

that    the   entirety        of     the    second    award      was   compensation      for

economic       loss        occurring        during    the     marriage         and     before

separation, and in turn, that property was properly classified

as marital property.             See id.      This argument is overruled.

       B. Attorney’s fees

       Defendant          contends    that     the    trial      court    did    not    make

sufficient findings of fact to support its award of attorney’s

fees in the amount of $985.79.                 We agree.

       On     19     August        2011,      Plaintiff       moved      for    reasonable

attorney’s         fees    and     reimbursement       of   mortgage      payments      made

while    Defendant         was     living     rent-free     in    the    former      marital

residence      as     sanctions       under     section       50-21(e).         Under    our

General Statutes, the trial court may impose a sanction, if it

finds, inter alia, that a party “has willfully obstructed or

unreasonably delayed or attempted to obstruct or unreasonably
                                      -12-
delay any pending equitable distribution proceeding . . . .”

N.C. Gen. Stat. § 50-21(e) (2013).

    In a consent order entered 28 February                  2012, the court

stated that Plaintiff’s attorney should submit to the court an

affidavit regarding fees and that the issue of attorney’s fees

would be addressed at the final equitable distribution hearing.

Plaintiff’s        attorney     submitted    an    affidavit     listing     the

attorney’s fees covered by the motion totaling $985.79.                      That

amount appears in Exhibit A labeled “Attorney Fee” along with

amounts for mortgage and tax payments and other expenses for

which   Plaintiff      sought     reimbursement.        However,    the     final

equitable distribution order contains no findings of fact that

Defendant     “willfully      obstructed     or   unreasonably     delayed    or

attempted     to     obstruct    or   unreasonably      delay    any      pending

equitable distribution proceeding[.]”             See id.      Accordingly, we

vacate the portion of the equitable distribution order which

purports to award attorney’s fees to Plaintiff.                 On remand, the

trial   court      shall   properly   consider     Plaintiff’s     motion     for

sanctions under section 50-21(e), make the necessary findings of

fact and conclusions of law as supported by the evidence, and

enter   the     appropriate       ruling     in   its   discretion.           See

Crutchfield, 132 N.C. App. at 195, 511 S.E.2d at 34.
                                          -13-
      C. Other property

      Defendant also contends that the trial court abused its

discretion in not resolving disputed evidence on the value of

the   Driftwood      home   and    the    value        of    Plaintiff’s        car.      The

evidence     regarding      the     value     of        the     Driftwood        home    was

conflicting.        Plaintiff listed its value as $171,660                            on her

Exhibit A and testified that its tax value in 2011 was $171,660,

while Joines testified that the most recent tax value of the

property    was     $149,850.        On    redirect           examination,       Plaintiff

testified that she thought the addition of a two-story garage

which included a bathroom with a Jacuzzi tub may have raised the

home’s value.        The court asked Plaintiff, “[D]o you agree the

current     tax    value    [is     $]149,850,          or     do   you    know        that?”

Plaintiff    replied,       “I    don’t    know        that.        I    mean,    I     don’t

understand why it’s dropped so much.”                       As discussed supra, the

court’s finding of fact 9 and the listing of the value of the

property at $171,660 indicates that the trial court resolved the

conflict    in     the   evidence    in     favor       of     Plaintiff’s       suggested

valuation.        As for the value of Plaintiff’s car, Defendant does

not explain what the disputed evidence was as to its value, and

Joines     did    not    testify    about        the    value       of    any    vehicles.

Defendant’s arguments on these points are without merit.
                                           -14-
      Defendant also contends that the court erred in failing to

address the real property given to Plaintiff by her parents in

the   equitable       distribution          order.          On    cross-examination,

Plaintiff    was     asked     about       the    two    pieces    of    property      and

testified that they were given to her by her parents during the

marriage    and    that    the     taxes    on    them   were     paid   from    marital

funds.     At trial, Defendant never made any argument or offered

any   evidence      that     the    properties       were    anything     other       than

Plaintiff’s       separate    property.            See   N.C.     Gen.   Stat.    §    50-

20(b)(2) (2013) (defining separate property, inter alia, as that

“acquired by a spouse by devise, descent, or gift during the

course of the marriage”).              Defendant does not now contend that

either property should have been classified as marital.                          Because

the two properties were not included in the spreadsheet under

the heading “Marital Property,” it appears that the trial court

classified    them    as     separate,       rather      than     marital,   property.

Defendant’s argument on this issue is overruled.

III. The Baptist Home house

      As for Defendant’s second argument, Plaintiff concedes that

the trial court erred in removing the Baptist Home house from

the marital estate and awarding it to the parties’ son in the

absence of any stipulation of                    the parties.        Accordingly, we
                                 -15-
vacate this portion of the final distribution award and remand

to   the   trial   court   for    classification,   valuation,   and

distribution of the Baptist Home house as part of the marital

estate.

     AFFIRMED in part; VACATED and REMANDED in part.

     Judges CALABRIA and ELMORE concur.

     Report per Rule 30(e).
