An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-993
                       NORTH CAROLINA COURT OF APPEALS

                               Filed: 4 March 2014


NANCI WURTZ,
     Plaintiff-Appellee,

      v.                                      Iredell County
                                              No. 10 CVD 2708
THOMAS J. WURTZ,
     Defendant-Appellant.


      Appeal by Defendant from order entered 29 April 2013 by

Judge Edward L. Hedrick, IV in District Court, Iredell County.

Heard in the Court of Appeals 21 January 2014.


      Pressly, Thomas & Conley,              P.A.,   by    Jessie    Conley,     for
      Plaintiff-Appellee.

      Homesley & Wingo Law Group, PLLC, by Andrew J. Wingo, for
      Defendant-Appellant.


      McGEE, Judge.


      Nanci Wurtz (“Plaintiff”) and Thomas J. Wurtz (“Defendant”)

were married on 16 January 1988.              Plaintiff filed the complaint

in this action on 24 August 2010, including claims for child

custody     and    support,     divorce,      alimony     and     post-separation

support, equitable distribution, and attorney’s fees.                    Plaintiff

and   Defendant     were   divorced     on   21   May     2012.     An   order    on
                                         -2-
equitable distribution, alimony and child support was entered on

29 April 2013.         Defendant appeals from this order.

       The    issues     Defendant     attempts   to    address     on   appeal    are

whether, in its equitable distribution portion of the 29 April

2013 order, the trial court erred in: (1) failing to calculate,

distribute, and otherwise factor “the amount of real property

loss in the value of TJC Development, LLC,” (“TJC”)1; and (2)

failing to properly address in the order a specific piece of

personal property and $22,000.00 held in a joint account.

       Defendant       argues   that    the    trial    court      failed   to    make

certain findings and conclusions related to a purported loss in

value    of    TJC.      In   Defendant’s      brief,   he   states:     “At     trial,

[Defendant] testified that there was an expected future real

property loss of $200,000.00, and that such loss would convey to

TJC, and thus the owner of TJC’s membership interests would

receive a capital tax loss of $70,000.00.”                      Defendant further

states    that     his    equitable     distribution     affidavit       included    a

men’s Rolex watch, and that he testified concerning the watch at

trial.        Finally, Defendant asserts that “during the trial of

this     matter,       [Defendant]      testified       to   the     existence      of

$22,000.00 in funds in [an account ending in the number 1746],



1
  TJC was a real estate development company in which Plaintiff
and Defendant owned a majority interest.
                                           -3-
which funds were given to the parties by [Defendant’s] mother to

invest for her[.]”

     In     support     of     these       statements,        Defendant      cites    to

“Appendix     A.”       Appendix       A    in    Defendant’s        brief    includes

Defendant’s     purported        “Appellate         Rule      9(c)    Statement      of

Testimony.”         However,   Defendant         fails   to    acknowledge     in    his

brief that this purported Rule 9 statement of testimony was

disputed by Plaintiff, and was apparently rejected by the trial

court in an order entered 2 September 2013.                       We cannot locate

this order in the record, or Defendant’s 200 plus page Appendix

A.   Plaintiff includes it as an appendix to her brief.                       In the 2

September 2013 order, the trial court determined:

            10. [Defendant’s] summary of his testimony
            which was attached to [Plaintiff’s] request
            for judicial settlement is not factually
            accurate.

            11. Any statement in [Defendant’s] proposed
            record on appeal which infers an agreement
            with [Plaintiff] with respect to an issue or
            narrative   in   the  record   and   to  that
            statement    [Plaintiff]   has    stated   an
            objection is not factually accurate.

            12.    [Plaintiff’s]   proposed    substitute
            narrative is not factually accurate.

            13. By failing to contract for a transcript
            and by failing to promptly submit items
            required by the Rules of Appellate Procedure
            and by failing to comply with Rule 11
            regarding the scheduling of the hearing, the
            parties have made it impossible for the
            court to settle the form of the narratives
                                             -4-
               or to settle the record on appeal within the
               constraints  of   the  Rules   of  Appellate
               Procedure.

Based    on    these      findings,    the    trial   court     denied    Plaintiff’s

request for judicial settlement of the record.                        Therefore, the

record    contains        no   transcript      of   the   equitable      distribution

hearings      and    no    substitute    narrative        of   the   proceedings   in

accordance with N.C.R. App. P. 9(c).

               (1)      Composition of the Record in Civil
                        Actions and Special Proceedings. The
                        record on appeal in civil actions and
                        special proceedings shall contain:

               . . . .

               e. so much of the litigation, set out in the
               form provided in Rule 9(c)(1), as is
               necessary for an understanding of all issues
               presented   on   appeal,   or   a   statement
               specifying that the verbatim transcript of
               proceedings is being filed with the record
               pursuant to Rule 9(c)(2), or designating
               portions of the transcript to be so filed[.]

N.C.R. App. P. 9(a) (2014); see also Matter of Botsford, 75 N.C.

App. 72, 74-75, 330 S.E.2d 23, 25 (1985) (“N.C.R. App. P. 9(a)

. . . requires that the record on appeal contain so much of the

evidence, either in narrative form or in the verbatim transcript

of the proceedings, as is necessary for an understanding of all

errors assigned.            Where such evidence is not included in the

record,       it   is    presumed     that    the   findings    are    supported   by
                                     -5-
competent evidence, and the findings are conclusive on appeal.”)

(Citations omitted).

    Defendant       has   failed     to     include       either     a   verbatim

transcript of the relevant portions of the trial, or a valid

narrative of the facts as required by Rule 9.                We cannot address

Defendant’s arguments on appeal and, therefore, dismiss them.

See Joines v. Moffitt, __ N.C. App. __, __, 739 S.E.2d 177, 182-

83 (2013); Baker v. Baker, 115 N.C. App. 337, 339, 444 S.E.2d

478, 480 (1994).

    In addition, we note the Preliminary Equitable Distribution

Inventory Affidavit of Defendant included in the record was not

executed    by   Defendant   and,   though        Defendant’s   affidavit    does

include a listing for “Rolex Mens [sic] Watch,” it indicates

Defendant’s proposed distribution of this Rolex watch should be

to Plaintiff, not Defendant.

    Finally, Plaintiff and Defendant agreed upon and signed a

Pre-Trial Equitable Distribution Order, which was then signed by

the trial judge and entered on 8 March 2012.                    By that order,

Defendant    stated   that   he    agreed    “with     the   facts   and   issues

classified as agreed upon and stipulates that the facts and

issues classified as being in dispute are accurately reflected

and that there are no other issues to be determined by the

[trial   court.]”     Defendant     did     not    list   the   Rolex    watch   as
                                   -6-
disputed property and, in fact, it was not included in the pre-

trial order at all.     Concerning the alleged $22,000.00 included

in the account ending in 1746, Defendant did not mention those

funds in the pre-trial order, and simply stated that the trial

court   should   “divide”   the   assets   remaining   in   that   account

between Defendant and Plaintiff.

    Dismissed.

    Judges HUNTER, Robert C., and ELMORE concur.

    Report per Rule 30(e).
