                                   NO. COA14-41

                      NORTH CAROLINA COURT OF APPEALS

                         Filed: 16 September 2014


LOIS A. SAULS,
     Plaintiff,

     v.                                    Beaufort County
                                           No. 06 CVD 1632
ROLAND GARY SAULS,
     Defendant.


     Appeal by defendant from orders entered 15 February 2013

and 11 July 2013 by Judge Darrell B. Cayton, Jr. in Beaufort

County District Court.        Heard in the Court of Appeals 13 August

2014.


     Attorney Jonathan McGirt, for plaintiff.

     Attorney W. Gregory Duke, for defendant.


     ELMORE, Judge.

     Defendant       timely    appeals     from:   1.)       an   equitable

distribution order entered 15 February 2013 ordering defendant

to pay plaintiff an in-kind distribution of $178,667.49 in cash

and check proceeds and 2.) an order entered 11 July 2013 denying

defendant’s motion for a new trial pursuant to Rule 59 of the

North     Carolina   Rules    of   Civil   Procedure.    After     careful

consideration, we affirm.

                                     I. Facts
                                        -2-
    Lois A. Sauls (plaintiff) and Roland Gary Sauls (defendant)

married each other on 6 October 1963.               Over the years, defendant

accumulated large sums of cash, which he kept inside a safe in

the parties’ former marital residence.                Although plaintiff knew

where the combination to the safe was hidden, she did not access

the safe unless directed to do so by defendant.                         In September

2005,    the    parties     temporarily      separated.        Around    this    time,

plaintiff       attempted    to   access     the   safe   on    her    own    but   the

combination and keys had been removed from their usual hiding

place.    Defendant was the only other person who knew where the

combination and keys were hidden.

    The parties reconciled in January 2006.                           At that time,

defendant had four checks, each for $10,000, issued and made

payable    to    plaintiff.       On   two    separate    occasions,         defendant

drove plaintiff to the bank, sent her inside to endorse and cash

one of the checks, and then plaintiff gave defendant the cash

proceeds, which he “needed . . . for the business.”                          Plaintiff

testified that she never cashed the two remaining checks and

defendant always kept the checks in his possession.                           However,

defendant claimed plaintiff cashed the remaining two checks in

the same way as she did the first two and that plaintiff had

just “forgot some things.”
                                       -3-
    The parties finally separated on 13 August 2006.                     On 13

December 2006, plaintiff filed a complaint asserting claims for

post-separation support, alimony, divorce from bed and board,

equitable distribution, and attorneys’ fees.                Defendant filed an

answer and a counterclaim for equitable distribution.                In spring

2008, the safe was opened by a locksmith in the presence of the

parties and their attorneys.          There was no cash in the safe.

    On    30   January    2009,      the    parties    divorced.     Plaintiff

subsequently dismissed the complaint against defendant with the

exception of her claim for equitable distribution, which was

heard in Beaufort County District Court on 29 May 2012.                     The

trial court found that defendant had removed from the marital

residence   $330,000     in   cash    and    $20,000   in   certified   checks,

which were marital assets.           The trial court entered an order for

equitable distribution and, in part, ordered that defendant pay

plaintiff $178,667.49 as an in-kind distribution of cash and

certified checks that defendant took from the former martial

estate.

                                     II. Analysis

a.) Findings of Fact
                                       -4-
    First,    defendant      argues    that       the     trial    court    erred   in

finding as fact that the parties had $350,000 in cash and checks

as of the date of separation.          We disagree.

    “In reviewing a trial judge’s findings of fact, we are

‘strictly    limited   to    determining          whether    the    trial    judge’s

underlying findings of fact are supported by competent evidence,

in which event they are conclusively binding on appeal, and

whether   those    factual   findings        in    turn     support   the    judge’s

ultimate conclusions of law.’”          State v. Williams, 362 N.C. 628,

632, 669 S.E.2d 290, 294 (2008) (quoting State v. Cooke, 306

N.C. 132, 134, 291 S.E.2d 618, 619 (1982)); see also Sisk v.

Transylvania Cmty. Hosp., Inc., 364 N.C. 172, 179, 695 S.E.2d

429, 434 (2010) (“‘[F]indings of fact made by the trial judge

are conclusive on appeal if supported by competent evidence,

even if . . . there is evidence to the contrary.’” (quoting

Tillman v. Commercial Credit Loans, Inc., 362 N.C. 93, 100-01,

655 S.E.2d 362, 369 (2008))).

    It is the duty of the trial judge “to weigh and consider

all competent evidence, and pass upon the credibility of the

witnesses,   the    weight   to   be    given       their    testimony      and     the

reasonable inferences to be drawn therefrom.”                      In re Whisnant,

71 N.C. App. 439, 441, 322 S.E.2d 434, 435 (1984) (citation
                                       -5-
omitted). “It is not the function of this Court to reweigh the

evidence on appeal.” Garrett v. Burris, ___ N.C. App. ___, ___,

735 S.E.2d 414, 418 (2012), aff'd per curiam, 366 N.C. 551, 742

S.E.2d 803 (2013).

       The record contains competent evidence to support the trial

court’s finding regarding the value of the cash and checks.

Most    notably,    under    “Schedule       F”    of    the    pre-trial      order

(“Property    about      which      there    is    a     disagreement       as     to

classification, with each party’s contentions as to the value

and distribution.”), neither party disputed the value of the

items   listed     as   “$330,000    cash”   and    “2   Certified       Checks   in

Wife’s Name.”       Defendant only contended that the cash should be

split in half because it was marital property, and that he did

not know the location of the checks.

       Additionally,     although    plaintiff      never      counted   how     much

money was in the safe, she testified that defendant told her the

amount was “three-thirty.”            Defendant testified that, in the

safe, he had “ten plus” envelopes each with “thirty or forty

thousand dollars in an envelope at one time.”                     Defendant also

stated that the last time he counted the cash was late in the

summer of 2006, just before the parties separated, and the safe

contained $330,000.
                                           -6-
      Moreover, plaintiff testified that she only cashed two of

the     four    $10,000     checks.           Although     the    parties     offered

conflicting      testimony       as   to    whether      defendant      had   the   two

remaining       checks,     the       trial      court    found      more     credible

plaintiff’s testimony that she never cashed the remaining checks

and that defendant had them in his possession.                     Thus, the trial

court    did    not   err   in    finding     as   fact   that    the    parties    had

$350,000 in cash and checks as of the date of separation.

b.) “Presently Owned”

      Next, although defendant offers no legal authority for his

argument, he maintains that because the cash and checks were not

found in the safe, the trial court could not find that they were

“presently owned” by the parties on the date of separation.                          We

disagree.

               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 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).
                                            -7-
      Marital      property      is    “all       real    and     personal       property

acquired by either spouse or both spouses during the course of

the   marriage       and   before     the    date   of    the    separation       of    the

parties, and presently owned, except property determined to be

separate property or divisible property[.]”                       N.C. Gen. Stat. §

50-20(b)(1) (2013).            “The spouse claiming that the property is

separate bears the burden of proof, as under N.C. Gen. Stat. §

50-20(b)(1), it is presumed that all property acquired after the

date of marriage and before the date of separation is marital

property[.]” Allen v. Allen, 168 N.C. App. 368, 374, 607 S.E.2d

331, 335 (2005) (citation and quotation marks omitted).                                This

Court has interpreted “presently owned” to mean property owned

by either party as of the date of separation.                       See Lawrence v.

Lawrence,      100      N.C.   App.     1,    16-17,      394     S.E.2d        267,    275

(1990)(ruling that the trial court erred in classifying certain

funds    as   marital      property    where      the    funds    had    been    used    to

purchase assets that were not owned by either party on the date

of separation).

      Here, the trial court found that defendant removed from the

marital home $350,000 in cash and checks, which were marital

funds.        It   is   irrelevant     whether      the    cash    and    checks       were

actually in the safe on the date of separation, especially since
                                       -8-
the record is devoid of any evidence that the cash or checks

were ever owned by someone other than plaintiff or defendant.

Thus, we hold that the cash and checks were “presently owned,”

and defendant’s argument fails.

c.) In-Kind Distribution

       Finally, defendant argues that the trial court erred by

ordering an in-kind distribution1 of $178,667.49 without first

considering whether defendant had sufficient liquid assets to

satisfy such an award.          We disagree.

       N.C. Gen. Stat. § 50–20(e) (2013) “creates a presumption

that an in-kind distribution of marital or divisible property is

equitable,    but     permits    a   distributive   award   ‘to   facilitate,

effectuate, or supplement’ the distribution.”               Allen, 168 N.C.

App.   at   372–73,    607   S.E.2d    at    334.   “[I]f   the   trial   court

determines that the presumption of an in-kind distribution has

been rebutted, it must make findings of fact and conclusions of

law in support of that determination.”              Urciolo v. Urciolo, 166

N.C. App. 504, 507, 601 S.E.2d 905, 908 (2004).               Should a party



1
  The difference between a “distributive award” and an “in-kind
distribution” is explained in 1 LLOYD T. KELSO, N.C. FAMILY LAW
PRACTICE § 6:60 (2008): “An ‘in-kind distribution’ refers to a
distribution of the property itself as opposed to a substitute
for the property such as a cash award equal to the value of the
property.” Id. § 6:60, at 447.
                                       -9-
successfully     rebut   the    equity   of   an   in-kind       distribution,     a

trial court may order a distributive award pursuant to N.C. Gen.

Stat. § 50-20(c) (2013).         This statute sets forth distributional

factors that the trial court must consider before ordering a

distributive award.       Id.    One of those factors is “[t]he liquid

or nonliquid character of all marital property and divisible

property.”     Id.   In other words, “[t]he trial court is required

to make findings as to whether the defendant has sufficient

liquid assets from which he can make                the distributive award

payment.”     Urciolo,   166    N.C.   App.   at   507,    601    S.E.2d    at   908

(emphasis added).

      Here,    the   trial     court   specifically       ordered    an    in-kind

distribution of the marital funds, but defendant did not rebut

the presumption that an in-kind distribution of the cash and

checks would be equitable.             As such, the trial court was not

required to consider the distributive award factors enumerated

under N.C. Gen. Stat. § 50-20(c), including whether defendant

had sufficient assets to pay the award.                   Furthermore, because

the   trial     court    specifically         ordered     defendant        to    pay

$178,667.49 from the $350,000 in cash and check proceeds in his

possession, it is clear that the same liquidity concerns raised

with distributive awards are not present in this case.
                                   -10-
                             III. Conclusion

    In sum, the trial court did not err in finding as fact that

the parties had $350,000 in cash and checks as of the date of

separation,     or   in     ordering     defendant    to    pay      plaintiff

$178,667.49     in   cash     or   check    proceeds       as   an    in-kind

distribution.    The trial court’s findings of fact are supported

by competent evidence in the record, and it was not required to

make a specific finding that defendant had sufficient liquid

assets to pay the in-kind distribution.            Accordingly, the trial

court’s   equitable       distribution     order     and    order     denying

defendant’s motion for a new trial are affirmed.

    Affirmed.

    Judges CALABRIA and STEPHENS concur.
