                               NO. COA14-150

                    NORTH CAROLINA COURT OF APPEALS

                           Filed: 7 October 2014


MICHAEL L. GREEN,
     Plaintiff,

    v.                                  Nash County
                                        No. 09-CVD-2527
JANA M. GREEN,
     Defendant.


    Appeal by defendant from judgment entered 12 July 2013 by

Judge John J. Covolo in District Court, Nash County.           Heard in

the Court of Appeals 12 August 2014.


    Teresa DeLoatch Bryant, for plaintiff-appellee.

    Judith K. Guibert, for defendant-appellant.


    STROUD, Judge.


    Defendant Estate of Jana M. Green1 appeals from a judgment

on equitable distribution entered by the District Court, Nash

County on 12 July 2013.         On appeal, defendant argues, inter

alia, that the trial court erred by imposing sanctions against

her which decreed that she had “forfeited her right to file her

equitable   distribution    affidavit   or   any   other   documents   or

1
  Defendant died during the pendency of this appeal, on 7
February 2014, and by order of this Court her estate was
substituted as a party to this appeal.      We will nevertheless
refer to the appellant as “defendant” in this opinion.
                                               -2-
matters    pertaining         to        same     and      that      the    identification,

valuation, and classification of assets and debts as set forth

in the Plaintiff’s said affidavit shall be those that shall be

considered by the Court.”                 The record indicates that the order

which   set    a    deadline       of    4     December      2012    for     the    filing      of

defendant’s equitable distribution affidavit was entered after 4

December 2012, on 10 December 2012, so that she had no notice of

the deadline until after it had passed.                             Due to the lack of

notice and other serious procedural and legal errors, we reverse

the order of 10 December 2012, the 19 December 2012 judgment,

and the 12 July 2013 judgment thereafter entered.

                                         I.      Background

      Plaintiff and defendant were married in 1990 and separated

from one another on or about 15 October 2009.                                On 1 December

2009, plaintiff filed a complaint for divorce from bed and board

and equitable distribution. On 28 December 2009, attorney Larry

A.   Manning       obtained    an       extension      of     time     for    defendant         to

answer,    extending      the       time        to   30      January      2009.           Through

defendant’s counsel Mr. Manning, defendant filed her answer and

counterclaims for divorce from bed and board, post-separation

support,      equitable       distribution,            and    attorney’s           fees    on    2

February 2010.        On 5 August 2010, plaintiff filed a request for
                                       -3-
production of documents regarding defendant’s counterclaim for

post-separation support, which had been served upon defendant,

through her counsel; on the same date, plaintiff also filed a

reply to defendant’s counterclaims, which was also served upon

defendant’s counsel.         At this point, the record falls silent for

nearly two years.

      The next document which appears in the supplement to the

record is a hand-written letter, dated 3 February 2012, from

defendant to the Nash County Clerk of Court, which states as

follows:       “Please send any documents or order in this case to

[defendant’s name and an address in Indiana.]                 Mr. Larry Manning

has   refused    to    notify   or   forward    any   court    dates,    motions,

orders in this case so I can have a chance to protect my right.”

The   record    does   not   contain   a     motion   for   withdrawal    by   Mr.

Manning, any order releasing him as the attorney of record for

defendant, nor any indication of why he disappeared from the

case.2



2
  “An attorney at law is a sworn officer of the court with an
obligation to the public, as well as his clients, for the office
of attorney at law is indispensable to the administration of
justice. The attorney’s obligation crystallizes into one of
noblesse oblige. As between the attorney and his client the
relationship may ordinarily be dissolved in good faith at any
time, but before an attorney of record may be released from
litigation he must satisfy the court that he is justified in
withdrawing. The first requirement for his withdrawal is proof
                                            -4-
       On 17 October 2012, the trial court entered the “Seventh

District      Judge       Designation       on     Equitable           Distribution      of

Property[;]” (“Judge Designation”) (original in all caps), this

document stated that “the parties hereby request designation of

John    J.    Covolo      as    the    judge      to     determine       the     equitable

distribution claim.”            Although the “Judge Designation” document

has blanks for the signatures of attorneys for both plaintiff

and defendant to agree to Judge Covolo, the document was signed

only   by    R.    D.    Kornegay,    attorney         for    plaintiff;       defendant’s

attorney’s signature line is blank.                          The “Judge Designation”

document also has a             second section which states that “[t]he

parties      are   unable      to   agree   upon   designation          of   a   Judge   to

determine      the      equitable     distribution           issues.    [(sic)]     hereby

applies to the Court for designation of a Judge.”                              Plaintiff’s

attorney signed the second section of the “Judge Designation”



of timely notice to his client.” Smith v. Bryant, 264 N.C. 208,
211, 141 S.E.2d 303, 306 (1965) (citations and quotation marks
omitted). Rule 16 of North Carolina’s General Rules of Practice
for the Superior and District Courts, entitled “Withdrawal of
Appearance[,]” provides that “No attorney who has entered an
appearance in any civil action shall withdraw his appearance, or
have it stricken from the record, except on order of the court.
Once a client has employed an attorney who has entered a formal
appearance, the attorney may not withdraw or abandon the case
without (1) justifiable cause, (2) reasonable notice to the
client, and (3) the permission of the court.” North Carolina’s
General Rules of Practice for the Superior and District Courts,
rule 16.
                                         -5-
document   as   well,     so   it   is   unclear   whether     the   parties   had

agreed on the designation or if they did not agree.                       In any

event, the Chief Judge of District Court in Nash County, William

C. Farris, signed the “Judge Designation” document, designating

Judge Covolo to determine the equitable distribution claim.

    On     22   October    2012,    nearly     three   years   after    plaintiff

filed    his    equitable      distribution      complaint,     he     filed   his

equitable distribution affidavit (“ED Affidavit”).3                  There is no

certificate of service indicating that plaintiff’s ED Affidavit

was served upon defendant or any counsel for defendant.4                   On the



3
   North Carolina General Statute § 50-21(a) requires that
“[w]ithin 90 days after service of a claim for equitable
distribution, the party who first asserts the claim shall
prepare and serve upon the opposing party an equitable
distribution inventory affidavit listing all property claimed by
the party to be marital property and all property claimed by the
party to be separate property, and the estimated date-of-
separation fair market value of each item of marital and
separate property.”     N.C. Gen. Stat. § 50-21(a) (2009).
Furthermore, in District Court in Nash County, North Carolina
Rule 4 of the “Rules for Trial and Settlement Procedures in
Equitable Distribution and Other Family Financial Cases[,]”
(“Local Rules”) (original in all caps), the ED Affidavit
“required by G.S. 50-21(a) shall be prepared using the form of
affidavit attached to the Rules. Unless extended for good cause
by the court, statutory time limits on the exchange of properly
prepared affidavits are to be strictly observed. There shall be
a presumption that sanctions are to be imposed upon willful non-
compliance.” Local Rules, rule 4.
4
  According to the Cc: line of the letter from plaintiff’s
counsel to the Nash County Assistant Clerk of Court, requesting
that the ED Affidavit be filed, he sent both plaintiff and
                                        -6-
same    date,       plaintiff   filed   a     notice   of   hearing     upon    the

equitable distribution claim, setting the hearing for 6 November

2012, and this notice of hearing was served upon defendant by

mail to her at the address she provided in Indiana.5                   The record

contains no indication that plaintiff had complied with any of

the requirements of North Carolina General Statute § 50-21(d),

including       a    scheduling   and    discovery     conference6,      possible

mediation7, and a final pretrial conference.8

       Thereafter,       the    trial    court     entered     an      “ORDER    OF

CONTINUANCE” which continued “this matter” to 4 December 2012

(“Continuance        Order”).     We    cannot   discern     exactly    what    was


defendant a copy of the ED Affidavit on or about 17 October
2012.
5
  The notice also stated that “[t]he issuing party is ready for
hearing upon the issues to be calendared, but the parties have
not agreed upon the court date.” (Emphasis in original.)
6
  “Within 120 days after the filing of the initial pleading or
motion in the cause for equitable distribution, the party first
serving the pleading or application shall apply to the court to
conduct a scheduling and discovery conference.” N.C. Gen. Stat.
§ 50-21(d) (2009).
7
  Mediation is required by Rule 7 of the Local Rules prior to
scheduling an equitable distribution case for trial, unless the
case has been exempted from mediation. See Local Rules, rule 7.
Mediation is to “be completed within 90 days of the scheduling
conference or 210 days of the filing of the complaint, whichever
occurs first.” Local Rules, rule 10(c).
8
  Rule 10(d) of the Local Rules requires that “[a] final pre-
trial conference shall be held within 60 days of the completion
of mediation.” Local Rules, rule 10(d).
                                           -7-
continued to when by the Continuance Order, nor could counsel at

the   oral   argument     of   this   case        explain     the    meaning    of    the

Continuance Order.        Normally hearings are continued to a date in

the future instead of the past, but here though the Continuance

Order was filed on 6 November 2012, the trial court signed the

order on 6 December 2012.           To be clear, the trial court did not

even abbreviate the date but wrote out “6th . . . December[.]”

We assume that the clock for the Clerk of Court’s office was

working properly, so perhaps the trial judge inadvertently wrote

the wrong month when signing the Continuance Order. But there

were court dates set for both 6 November 2012 -- plaintiff’s

notice of hearing for the equitable distribution claim -- and 4

December     2012   --    Continuance            Order     for      “this    matter[.]”

Furthermore,     though    the     Continuance           Order   provides      numerous

reasons for the trial court to check for why the matter is being

continued, none are checked on this Continuance Order.                          Lastly,

in    the    consent     portion      of     the        Continuance     Order,       only

plaintiff’s attorney has signed.                 There is no indication in the

record that the Continuance Order was served upon defendant or

any counsel for defendant.

      On 10 December 2012, the trial court entered an order (“ED

Affidavit    Order”)     which     states        that    it   was    based    upon   the
                               -8-
hearing held on 6 November 2012, “upon the Plaintiff’s request

for the Court to structure a time frame within which any and all

matters pertaining to equitable distribution or any remaining
                                                                  9
issues raised in the pleading would be disposed of . . . .”

Defendant was not present or represented.        The   ED Affidavit

Order stated as follows:

         [I]t appearing that the Plaintiff has in
         fact   filed    his   equitable      distribution
         affidavit    in   timely     fashion    but   the
         Defendant, for whatever reason has failed or
         refused to do so; and it appears as if the
         Defendant has not appeared in court but has
         had some alleged reason not to be in court
         each occasion the case has been set for
         trial; and on the occasion first mentioned
         hereinabove,    the   Defendant     forwarded   a
         correspondence dated November 5, 2012, which
         she did not copy Plaintiff’s attorney with
         (with the exception of the copy of a
         purported medical document at the bottom
         thereof) which was either in the file or
         provided to the presiding judge by the Clerk
         when   the     calendar    was     called;    and
         Plaintiff’s attorney indicated to the Court
         that   they    thought    it    was    frivolous,
         unreasonable,    and    inequitable     for   the
         Defendant to be able to continually avoid a
         hearing in this case for reasons that cannot

9
  We note that the Local Rules, particularly Rule 10, provide
detailed “timelines” for equitable distribution cases.        See
Local Rules, rule 10(c). Under Rule 11, “[f]or good cause the
Presiding Judge may modify the [rule 10] timelines[,]” but the
record contains no indication of any order modifying the rules.
See Local Rules, rule 11.    Perhaps the 10 December 2012 order
could be considered as an order modifying the requirements of
the rules except that it does not mention any statute or local
rule nor does it mention any “good cause” for modification. Id.
                              -9-
         be substantiated when they have otherwise
         complied with the law and needed for the
         Court to take action to structure time
         limits within which things could happen; and
         the Court reviewed the medical document at
         the bottom of the Plaintiff’s November 5
         correspondence but could not decipher or
         understand the handwriting therein and did
         not find the letter or the attachment to be
         reasonable under the circumstances; and,
         based upon the pleadings in the file and the
         motion of Plaintiff’s counsel, the Court
         does ORDER,
         ADJUDGE, AND DECREE as follows:

              1.   That the Defendant shall have
         until December 4, 2012 in which to file her
         equitable distribution affidavit, which is
         already well passed [(sic)] the time allowed
         by law, and should she not have her
         affidavit filed by that time her right to do
         so shall be forfeited and she and the Court
         will be bound by the information set forth
         in the Plaintiff’s Equitable Distribution
         Affidavit and thereafter she will not be
         allowed any additional time within which to
         file said document.

              2.   That if either party desires any
         further discovery, it shall be completed on
         or before December 4.

              3.   That at the December 4 calendar,
         the Court shall determine a final date for
         trial in this matter.

              4.   For such other and further relief
         as the Court seems just and proper in the
         nature of this cause.

The record contains no indication that the ED Affidavit Order

was served on defendant or any counsel for defendant.
                                       -10-
       The letter regarding a medical excuse referred to in the ED

Affidavit Order was a letter from defendant, dated 5 November

2012, in which she stated that her surgeon, Dr. Benjamin Chiu,

of Kokomo, Indiana, had forbidden her from traveling to the

hearing on 6 November 2012.           At the bottom of defendant’s letter

was a handwritten note, which we have no difficulty deciphering,

on a prescription form for Howard Regional Health System, of

Kokomo,     Indiana,     stating      that     “Pt.     to       be   excused     from

travel/work until follow up visit in 1-2 weeks[.]”                          Defendant

also stated in the letter that she had told plaintiff’s attorney

the dates she could attend court, and he set the 6 November 2012

date against her wishes.

       Defendant’s     medical       condition      was      a     recurring     theme

throughout the case.           Defendant’s counterclaim alleged that she

suffered “from a number of medical conditions” which made “her

unable to support herself.”              Plaintiff replied that defendant

“malingers” and would “say or do anything that she can to not

work   an   honest     day’s    work.”        But     the    record     contains      no

substantive      evidence   regarding        defendant’s         medical   condition.

In   addition,    despite      the   trial    court’s       statement      in   the   ED

Affidavit Order that “the Defendant has not appeared in court

but has had some alleged reason not to be in court each occasion
                                       -11-
the   case    has   been   set   for   trial[,]”   our   record   contains   no

indication whatsoever that this case had ever been set for any

sort of hearing before 6 November 2012.

      On 4 December 2012, the matter came on for hearing again,

and a judgment was filed on 19 December 2012 as a result of this

hearing      (“Sanctions   Order”).      The   Sanctions   Order   stated    as

follows:

              [I]t appearing that the matter was before
              the Court based upon the Plaintiff’s request
              (all of which was relayed to the Court at
              its last session when Judge Covolo was
              presiding) asking that the Defendant forfeit
              her right to file any further equitable
              distribution documents for her failure to
              have her equitable distribution affidavit
              filed   with    the   Court   the   date   first
              referenced hereinabove, and for the Court to
              set this case before the undersigned Judge
              Presiding, who is the designated judge, for
              the final equitable distribution hearing on
              January 8, 2013; and it appearing that the
              Plaintiff was in court with his attorney of
              record, Robert D. Kornegay, Jr., and that
              the Defendant was not in court, although
              attorney Katherine Fisher informed the Court
              that   she    had   been    contacted   by   the
              Defendant, and had a telephone conference
              scheduled    with   her   the    following   day
              (December 5) at 3:00 p.m.; and, based upon
              the pleadings in the file, the statement of
              counsel, and the proceedings, the Court does
              make the following FINDINGS OF FACT:

                   1.    That all parties have had due and
              adequate notice of the proceedings and that
              the     parties and the subject party are
              properly before the Court.
                       -12-


     2.    That the last order of the Court
gave   to   the    Defendant    the    right    and
opportunity      to    file     her      equitable
distribution affidavit by the date first
referenced    hereinabove,       but     that    no
pleadings of any other or further type have
been filed with or received by the Court.
That the Defendant has had plenty [of]
adequate time under all the circumstances to
file her pleadings and for her lack or
inability of having done so, the Court does
find that it is not unreasonable that the
Defendant    has    therefore     forfeited     any
further   right     to    file    her    equitable
distribution        affidavit         and       the
identification,            valuation,           and
classification of all said assets and debts
as   provided    by   the    Plaintiff     in   his
equitable    distribution      affidavit      shall
hereinafter be those values that shall be
considered and heard by the Court.

     3.   That there has been discovery
pending since August of 2010, whereby the
Plaintiff filed discovery on the Defendant
and she has not made any valid attempt to
provide the information required therein by
law.

     4.   That this matter has been pending
for a long period of time and it is right,
fair, and reasonable that the parties should
be able to move forward with their lives and
conclude the issues raised in the litigation
and therefore the case will be set for trial
on the issue of equitable distribution of
property at the undersigned Judge’s next
session of court for January 8, 2013.

NOW, THEREFORE, based upon the          foregoing
Findings the Court makes the            following
CONCLUSIONS OF LAW:
                              -13-
              1.   That all parties have had due and
         adequate notice of these proceedings and
         that the parties and the subject matter are
         properly before the Court.

              2.    That the Defendant has forfeited
         her right to file her equitable distribution
         affidavit or any other documents or matters
         pertaining     to  same    and    that   the
         identification,        valuation,        and
         classification of assets and debts as set
         forth in the Plaintiff’s said affidavit
         shall be those that shall be considered by
         the Court.

              NOW,   THEREFORE,   based    upon   the
         foregoing Findings and Conclusions the Court
         does hereby ORDER, ADJUDGE AND DECREE:

              1.    That the Defendant has forfeited
         her right to file her equitable distribution
         affidavit or any other documents or matters
         pertaining     to  same    and    that   the
         identification,        valuation,        and
         classification of assets and debts as set
         forth in the Plaintiff’s said affidavit
         shall be those that shall be considered by
         the Court.

              2.   That this case is hereby set for
         hearing   on   equitable    distribution of
         property at the Undersigned’s next session
         of court for January 8, 2013.

              3.   That this matter shall be retained
         for further consideration by the court.

The record contains no indication that the Sanctions Order was

served upon defendant or any counsel for defendant.

    The 8 January 2013 court date was continued, by consent of

both plaintiff and defendant, to the March or April 2013 term of
                                         -14-
court with Judge Covolo.              An order for peremptory setting for 5

March 2013 was filed on 17 January 2013, and this was served

upon defendant. On 23 January 2013, plaintiff’s counsel also

filed a notice of hearing on equitable distribution for 5 March

2013, and this was served upon defendant.

       The equitable distribution trial was held on 5 March 2013.

Plaintiff    was     present      with   his     attorney      and    defendant      was

present, pro se.           The 12 July 2013 judgment (“ED Judgment”)

stated,

            the Defendant has forfeited her right to
            file her equitable distribution affidavit or
            any other documents or matters pertaining to
            the same by virtue of a Judgment dated
            December 14, 2012, of record in this matter,
            and that as a result thereof the Plaintiff’s
            equitable distribution affidavit, and his
            documentation    in   support    thereof,    in
            addition to the testimony of the parties,
            and   any   documentation   offered    by   the
            Defendant, was the sole source of the
            Court’s   identification,     valuation,    and
            classification of marital property; and,
            based upon the pleadings in the file, the
            testimony    of   the   parties    and    their
            documentary evidence, and the statement of
            counsel, the Court does make the following
            FINDINGS OF FACT[.]

Ultimately, the trial court made findings of fact consistent

with   plaintiff’s        ED   Affidavit       and    evidence       and   awarded    an

unequal     distribution         of    property       in    favor     of   plaintiff.

Defendant    filed    a    pro    se   “NOTICE       OF    APPEAL”    appealing      “the
                                     -15-
ruling and judgment of the Nash County District Court entered on

July 12, 2013[.]”

                              II.    Jurisdiction

    Defendant asserts on appeal that the ED Judgment of 12 July

2013 is a final, appealable order, and she also challenges the

“December 10, 2012 discovery order and the December 19, 2012

sanctions     Judgment”   which     were   interlocutory   orders    and   not

immediately appealable; this is true, but defendant also failed

to give notice of appeal identifying the ED Affidavit Order and

the Sanctions Order, so we must first consider whether this

Court   has    jurisdiction   to    consider    her   appeal   as   to   these

decisions.

                   We note that while Rule 3(d) of the
              Rules of Appellate Procedure provides that
              the notice of appeal shall designate the
              judgment or order from which appeal is
              taken, N.C. Gen. Stat. § 1–278 (2013)
              provides:   Upon an appeal from a judgment,
              the court may review any intermediate order
              involving   the    merits   and   necessarily
              affecting the judgment. This Court has held
              that even when a notice of appeal fails to
              reference   an    interlocutory   order,   in
              violation of Rule 3(d), appellate review of
              that order pursuant to N.C. Gen. Stat. § 1–
              278   is    proper    under   the   following
              circumstances: (1) the appellant must have
              timely objected to the order; (2) the order
              must be interlocutory and not immediately
              appealable; and (3) the order must have
              involved the merits and necessarily affected
              the judgment.   All three conditions must be
                                -16-
            met.

Tinajero v. Balfour Beatty Infrastructure, ___ N.C. App. ___,

___, 758 S.E.2d 169, 175 (2014) (citation and quotation marks

omitted).

     We find that all three conditions for defendant’s appeal as

to the ED Affidavit Order and the Sanctions Order have been met.

See id.      As to the timeliness of defendant’s objection, based

upon the record before us, we cannot determine when, if ever,

the ED Affidavit Order and the Sanctions Order were served upon

defendant.     Clearly defendant became aware of the ED Affidavit

Order and the Sanctions Order at some point in time, but there

is no certificate of service10 on either document.    Under North

Carolina General Statute § 1A-1, Rule 58, the ED Affidavit Order

and the Sanctions Order should have been served upon defendant

within three days of their entry:

                 Subject to the provisions of Rule
            54(b), a judgment is entered when it is
            reduced to writing, signed by the judge, and
            filed with the clerk of court. The party

10
  North Carolina General Statute § 1A-1, Rule 5(b) requires that
“[a] certificate of service shall accompany every pleading and
every paper required to be served on any party or nonparty to
the litigation, except with respect to pleadings and papers
whose service is governed by Rule 4. The certificate shall show
the date and method of service or the date of acceptance of
service and shall show the name and service address of each
person upon whom the paper has been served.” N.C. Gen. Stat. §
1A-1, Rule 5(b) (2009).
                                          -17-
             designated by the judge or, if the judge
             does not otherwise designate, the party who
             prepares the judgment, shall serve a copy of
             the judgment upon all other parties within
             three days after the judgment is entered.
             Service and proof of service shall be in
             accordance with Rule 5.

N.C. Gen. Stat. § 1A-1, Rule 58 (2009).                     Under North Carolina

Rule of Appellate Procedure Rule 3, defendant would have had 30

days to appeal from the ED Affidavit Order or Sanctions Order if

she   had    been   served     with   them      “within    the    three    day     period

prescribed by Rule 58 of the Rules of Civil Procedure; or (2)

within 30 days after service upon the party of a copy of the

judgment     if     service    was       not   made     within    that     three        day

period[.]”        N.C.R. App. P. 3(c).           Since we do not know when or

if defendant was ever “served” with the ED Affidavit Order or

the Sanctions Order, we cannot discern how she would have made

any more timely objection to the ED Affidavit Order and the

Sanctions Order than she has by her appeal of the ED Judgment

resulting from them.

      Next, both the ED Affidavit Order and Sanctions Order were

interlocutory, as they did not make a final determination of all

claims and issues. See Hamilton v. Mortg. Info. Servs., Inc.,

212   N.C.     App.    73,     76,    711      S.E.2d     185,    188     (2011)    (“An

interlocutory       order     is   one    made    during    the    pendency        of   an
                                          -18-
action, which does not dispose of the case, but leaves it for

further    action       by   the    trial    court    in       order       to    settle    and

determine the entire controversy.” (citation and quotation marks

omitted)).

       Finally, both the ED Affidavit Order and Sanctions Order

“involved      the     merits   and    necessarily        affected         the    judgment.”

Tinajero, ___ N.C. App. at ___, 758 S.E.2d at 175.                               As a result

of the ED Affidavit Order and Sanctions Order defendant could

not    challenge       plaintiff’s     evidence      as    to    the       identification,

classification, and valuation of the martial property and debts;

these    are    the     central     issues    in    any    equitable            distribution

claim.         Thus,    we   have     jurisdiction        to    consider         defendant’s

appeal as to the ED Affidavit Order and Sanctions Order.                                   See

Tinajero ___ N.C. App. at ___, 758 S.E.2d at 175.

                  III. Imposition of Sanctions Without Notice

       Defendant       first    argues      that   “the        trial   court       erred    in

imposing sanctions against defendant which prohibited her from

filing    an    equitable       distribution       affidavit         and    prevented      her

from    presenting       her    case.”       (Original          in   all     caps.)        The

sanctions were imposed in the trial court’s Sanctions Order,

which found that defendant had failed to comply with the ED

Affidavit       Order.       Defendant      contends       that      the     ED    Affidavit
                                         -19-
Order, which set a 4 December 2012 deadline for filing her ED

Affidavit,    had   not    yet    been    entered       when    the    deadline      had

passed. We need not engage in any analysis to determine that

defendant’s argument is factually correct -- 10 December 2012 is

after 4 December 2012.            Even if defendant had been present in

court on 6 November 2012, when it seems that the trial court

addressed this issue, an order is not entered until it is signed

and filed, and the ED Affidavit was signed on 24 November 2012

and filed on 10 December 2012.             See N.C. Gen. Stat. § 1A-1, Rule

58 (2011) (“Subject to the provisions of Rule 54(b), a judgment

is entered when it is reduced to writing, signed by the judge,

and filed with the clerk of court.”)

      Plaintiff does not even attempt to argue in his brief that

defendant had notice of the 4 December 2012 deadline, but in his

approximately two page argument which is devoid of citation of

any   authority,    claims       that    defendant      had    “a     full   and   fair

opportunity to present her case at trial[,]” (original in all

caps),    because   at    trial    the    trial       court    did    permit   her    to

testify    and   asked     her    “broad        and    open-ended      questions[.]”

Plaintiff also contends that the 10 December 2012 order actually

gave defendant an extension of time to file her ED Affidavit, an

argument which is directly contradicted by the order itself.
                               -20-
Plaintiff argues that defendant “began representing herself” on

3 February 2012 –- this fact is not supported by the record --

and that she “was served on 17 October 2012 with the Plaintiff’s

Equitable Distribution   Inventory    Affidavit[.]”   Actually, the

only indication in the record of the service of plaintiff’s ED

Affidavit is the Cc: line at the bottom of plaintiff’s counsel’s

transmittal letter to the Assistant Clerk of Court, asking that

plaintiff’s ED Affidavit be filed; there is no certificate of

service on defendant.    But even if we assume that plaintiff is

correct, and plaintiff mailed his ED Affidavit to defendant on

17 October 2012, plaintiff argues that defendant’s ED Affidavit

would have been due on 19 November 2012.11    Plaintiff claims that

since the ED Affidavit Order deadline was 4 December 2012, the

ED Affidavit Order actually gave defendant 15 extra days to file

her ED   Affidavit, beyond the   time    allowed by North Carolina

General Statute § 50-21.    Plaintiff’s argument is inexplicable,

given the finding in the ED Affidavit Order, based upon the

stated hearing date of 6 November 2012, that “Defendant, for

whatever reason has failed or refused to” file her ED Affidavit

in a “timely fashion[.]” (Emphasis added.) In addition, the ED

11
   Plaintiff’s brief actually argues that “Defendant’s EDIA was
due on or before 19 November 2014[;]” we assume plaintiff means
2012, as that was the year when the 10 December 2012 order was
entered.
                                          -21-
Affidavit Order decreed that “the Defendant shall have until

December 4, 2012 in which to file her equitable distribution

affidavit, which is already well passed [(sic)] the time allowed

by law[.]”          (Emphasis added.)           That is, on 6 November 2012,

despite the fact that according to plaintiff, defendant’s ED

Affidavit was not due until 19 November 2012, the trial court

found that defendant has “for whatever reason . . . failed or

refused to” file her ED Affidavit in a “timely fashion” and that

the   time    for    filing    of   her    ED    Affidavit   was   “already   well

passed” (sic).          Plaintiff’s argument is, to use the words of

the   trial    court’s    ED     Affidavit       Order   describing   defendant’s

failure to appear in court on 6 November 2012, “frivolous [and]

unreasonable[.]”

      We realize that many things may have happened in this case

which are not revealed by the record, despite the fact that

counsel      for     plaintiff      and    defendant     participated    in    the

settlement of the record on appeal and would presumably have

included all documents necessary for us to review the issues

presented.         In fact, several of the documents which do show

various important dates were added as supplements to the record.

We agree that this equitable distribution case took entirely too

long, far beyond the time guidelines set by both North Carolina
                                          -22-
General Statute         § 50-21 and by the Local Rules.             See N.C. Gen.

Stat. § 50-21; Local Rules, rule 10.                  Yet we feel compelled to

note    that    plaintiff     filed   the    initial    equitable    distribution

claim,    and    thus    he   had   the    obligation    under     North    Carolina

General Statute § 50-21(a) to file his ED Affidavit within 90

days.    See N.C. Gen. Stat. § 50-21(a).               Instead, plaintiff filed

his ED Affidavit approximately two years and 10 months after he

filed his complaint. This is not, as the ED Affidavit Order

described it, “timely[.]”             The trial court also found in its

Sanctions Order that defendant failed to respond to the “REQUEST

FOR PRODUCTION OF DOCUMENTS” served upon her in August of 2012;

this    is     true,    but   essentially        irrelevant   to   the     equitable

distribution claim, as this request for production included only

three requests, the first of which was directed to defendant’s

counterclaim for post-separation support.                While it is true that

defendant also failed to take actions that she should and could

have taken to comply with the time requirements of equitable

distribution and have the case resolved sooner, both parties

were complicit in the delay. Also, the record before this Court

does not reveal that defendant ever failed to respond to any

sort of discovery request relevant to the equitable distribution

claim and does not reveal that she ever failed to appear at any
                                           -23-
court date other than the 6 November 2012 and 4 December 2012

dates previously discussed.

       As we have established that defendant had no notice of the

4    December    2012   deadline       before      it    had    passed,    we     must   now

consider whether she had sufficient notice that she may face

sanctions,      in   the    form      of   barring       her    from    presentation      of

evidence as to the identification, valuation, and classification

of the property to be distributed and a decree that the trial

court    would       determine     the      “identification,            valuation,       and

classification of assets and debts” according to plaintiff’s ED

Affidavit.        Although      neither      the    trial       court’s    ED     Affidavit

Order or Sanctions Order cite any statutory basis for imposition

of    sanctions      against    defendant,         nor    did    plaintiff        file   any

motion seeking relief based upon any statute or rule, it appears

that    the     sanctions      were    based      upon     North       Carolina    General

Statute § 50-21(e):

                   (e) Upon motion of either party or
              upon the court’s own initiative, the court
              shall impose an appropriate sanction on a
              party when the court finds that:
                   (1) The party has willfully obstructed
                        or unreasonably delayed, or has
                        attempted     to     obstruct     or
                        unreasonably     delay,    discovery
                        proceedings, including failure to
                        make discovery pursuant to G.S.
                        1A-1, Rule 37, or has willfully
                        obstructed or unreasonably delayed
                               -24-
                    or   attempted     to    obstruct    or
                    unreasonably   delay     any    pending
                    equitable distribution proceeding,
                    and
              (2)   The    willful      obstruction      or
                    unreasonable      delay      of     the
                    proceedings    is     or    would    be
                    prejudicial to the interests of
                    the opposing party.

         Delay consented to by the parties is not
         grounds for sanctions. The sanction may
         include an order to pay the other party the
         amount   of   the    reasonable   expenses   and
         damages incurred because of the willful
         obstruction or unreasonable delay, including
         a reasonable attorneys’ fee, and including
         appointment by the court, at the offending
         party’s     expense,     of   an     accountant,
         appraiser, or other expert whose services
         the court finds are necessary to secure in
         order for the discovery or other equitable
         distribution     proceeding    to   be    timely
         conducted.

N.C. Gen. Stat. § 50-21(e).

     This Court has determined in Megremis v. Megremis that the

adequacy of notice of potential sanctions under North Carolina

General Statute § 50-21 is a question of law which we review de

novo:

               Notice and opportunity to be heard
         prior to depriving a person of his property
         are essential elements of due process of law
         which    is   guaranteed  by  the  Fourteenth
         Amendment of the United States Constitution.
         Whether a party has adequate notice is a
         question    of   law.    In  order  to   pass
         constitutional muster, the person against
         whom sanctions are to be imposed must be
                                     -25-
             advised   in   advance   of   such  charges.
             Moreover, a party has a due process right to
             notice both (1) of the fact that sanctions
             may be imposed, and (2) the alleged grounds
             for the imposition of sanctions.

179   N.C.    App.   174,   178-79,     633    S.E.2d    117,   122   (2006)

(citations,    quotation    marks,   and    brackets    omitted);   see   also

Suntrust Bank v. Bryant/Sutphin Prop., LLC, ___ N.C. App. ___,

___, 732 S.E.2d 594, 598 (2012) (“For questions of law, we apply

de novo review.” (citation and quotation marks omitted)).

      As also noted in Megremis, North Carolina General Statute

§ 50-21(e) does not set forth any specific requirements for

notice, so we have looked to similar statutory provisions for

guidance:

                  N.C.G.S. § 50-21(e) is silent as to
             what type of notice is required under the
             statute and how far in advance notice must
             be given to a party facing sanctions. Under
             N.C. Gen. Stat. § 1A-1, Rule 11, a motion
             requesting sanctions must be served within
             the period prescribed by N.C. Gen. Stat. §
             1A-1, Rule 6(d), not later than five days
             before the hearing on the Rule 11 motion.
             N.C.G.S.   §   50-21(e)   includes   conduct
             sanctioned under N.C. Gen. Stat. § 1A-1,
             Rule 37, as well as a separate, more
             general, sanctions provision specific to an
             equitable distribution proceeding.     Under
             Rule 37, a trial court may impose sanctions,
             including attorney’s fees, upon a party for
             discovery violations.   Our Court has held
             that a party sanctioned under Rule 37 had
             ample notice of sanctions where the moving
             party’s written discovery motion clearly
                                         -26-
             indicated the party was seeking sanctions
             under Rule 37.     Moreover, at a hearing on
             the discovery motion, the sanctioned party
             was given the opportunity to explain to the
             trial   court   any   justification   for the
             party’s    delinquency    in   responding  to
             discovery.

Megremis, 179 N.C. App. at 179, 732 S.E.2d at 121 (citations

omitted).

      As in Megremis, “plaintiff filed no written motion seeking

sanctions.”       Id. at 179, 732 S.E.2d at 121.                Here, the sanctions

issue was initially addressed at the hearing on 6 November 2012.

The   notice     of   hearing     for    6    November     2012   stated    that    the

hearing was set for plaintiff to “make application for relief in

the   form       of   equitable     distribution           of   property     and    for

attorney’s fees, costs and such other relief as provided in

Chapter 50 of the North Carolina General Statutes and as prayed

for   in   the    pleadings.”       No       motion   to   compel   or     motion   for

sanctions was filed.        No scheduling or pretrial conferences were

ever held, although both are required by North Carolina General

Statute § 50-21(d) and by the Local Rules.                      See N.C. Gen. Stat.

§ 50-21(d); Local Rules, rule 10. Instead, plaintiff asked the

trial court at the 6 November 2012 hearing, where defendant was

not present, “to structure a time frame within which any and all

matters pertaining to equitable distribution or any remaining
                                          -27-
issues raised in the pleading would be disposed of[,]” and the

trial   court      did    this    by   setting     forth      the    4    December      2012

deadline previously discussed at length.

       We can safely say that the complete absence of notice of

potential sanctions under North Carolina General Statute § 50-

21(e) is not adequate notice.                  See N.C. Gen. Stat. § 50-21(e).

We also disagree with plaintiff that the Sanctions Order “did

not adversely affect [defendant] during the hearing.” Plaintiff

does    not   dispute      that    the    trial    court’s      ED       Judgment       makes

findings      of    fact     and       conclusions       of     law       as     to     “the

identification,          valuation,      and    classification           of    assets    and

debts” strictly in accord with plaintiff’s ED Affidavit, as the

Sanctions Order decreed.

       As we must reverse the ED Judgment, we will not address

each of defendant’s arguments about the failure of the trial

court to properly classify, value, and distribute the property.

But    because     these    issues       will    arise     again     on       remand,    for

guidance to the trial court, we will note that North Carolina §

50-20(c) creates a presumption of an equal distribution, and the

trial court must make findings of fact as to the factors under

North Carolina General Statute                 § 50-20(c) to support an unequal
                              -28-
distribution. N.C. Gen. Stat. § 50-20(c) (2009).      In its ED

Judgment, the trial court based its unequal distribution on

         reasons that include but are not limited to
         the following:
              a.    The Defendant’s failure to work
         and contribute to the marital estate.
              b.    The   debt   that   the   Defendant
         incurred during the marriage and the fact
         that Plaintiff had to pay off what he did
         both during the marriage and after the
         separation.
              c.    The Defendant was not a stay at
         home mother but spent a large part of her
         time up and down the road and with her
         family and friends in Indiana, that although
         it appears to the Court that she was capable
         and able bodied, did not work substantially
         or materially and contribute towards the
         marital estate or the needs of the family.
              d.    The   fraud   perpetrated  on   the
         Plaintiff to believe that the child born
         during their relationship was his and the
         fact that he was primarily responsible for
         that child’s support to and through the age
         of 19.
              e.    The fact that the Plaintiff ended
         up paying the educational loans for the
         Defendant’s son by another relationship
         without any help or contribution from the
         Defendant.
              f.    The Defendant took out a false and
         frivolous domestic violence action against
         the Plaintiff in order to better her
         position in court when she could not sustain
         the burden of proof with regards thereto.
              g.    The   fact   that   the   Plaintiff
         basically raised and supported her three
         children from a prior marriage from the date
         they became married until the date they aged
         out or moved out of their home.

Most if not all of these factors except possibly (b) appear to
                                          -29-
fall under the “catch-all” provision of North Carolina General

Statute § 50-20(c)(12):          “Any other factor which the court finds

to be just and proper[,]” but only factors which address the

economic       aspects    of     the      marriage     are       relevant      to     the

distribution.12 See Smith v. Smith, 314 N.C. 80, 87, 331 S.E.2d

682,   687     (1985)    (“Thus,      under    50-20(c)(12),        the     only    other

considerations which are just and proper within the theory of

equitable      distribution      as      expressed    by    50-20(c)(1)-(11)          are

those which are relevant to the marital economy. Therefore, we

hold that marital fault or misconduct of the parties which is

not related to the economic condition of the marriage is not

germane to a division of marital property under 50-20(c) and

should not be considered.” (quotation marks omitted)).                         Many of

the    trial    court’s    findings       of   fact   and       conclusions    of    law

address      factors     which     are     simply     irrelevant       to    equitable

distribution because they are not economic factors as defined by

Smith.    See id.

       One   particularly      egregious       example     of    the   trial   court’s

consideration of irrelevant evidence is the paternity of the



12
  In fact, the findings as to distributional factors which were
disapproved by the Supreme Court in Smith v. Smith, bear some
resemblance to those in this case, as the trial court there
found that defendant generally failed in many ways in her duties
as a wife and mother. 314 N.C. 80, 331 S.E.2d 682 (1985).
                                          -30-
parties’        now-adult   child.    Plaintiff      alleged     in   his      complaint

that “one child was born of the marriage who is past the age of

majority[;]” defendant’s answer admitted this fact.                          Since this

fact was judicially admitted by both parties, it would appear

that paternity of the child was not a disputed issue.                                  See

Hinton v. Hinton, 70 N.C. App. 665, 672, 321 S.E.2d 161, 165

(1984) (“It has long been established that where there is an

admission in the final pleadings defining the issues and on

which     the    case    goes   to   trial,   such    admission       is   a   judicial

admission        which    conclusively      establishes     the       fact     for     the

purposes of that case and eliminates it entirely from the issues

to   be    tried.”).        Furthermore,         support   of    a    child     of     the

marriage, minor or adult, is not a proper distributional factor

under North Carolina General Statute                 § 50-20(c).       See N.C. Gen.

Stat. § 50-20(c); see also Godley v. Godley, 110 N.C. App. 99,

117, 429 S.E.2d 382, 393 (1993) (“Defendant further argues that

the trial court’s finding that plaintiff has voluntarily taken

in their 22 year old son, David, was irrelevant to the equitable

distribution proceeding.             We agree and hold that this factor was

improperly        considered    as    a   distributional        factor.      The     trial

judge also improperly considered the fact that the minor child,

Catherine, was still residing at the marital residence at the
                                        -31-
time    of   trial.    North     Carolina      General   Statutes          §   50-20(f)

provides that the court shall provide for equitable distribution

without regard to alimony or child support.”).                            Yet in this

equitable distribution case, to which the adult son is not a

party, plaintiff sought to bastardize his child.

       At trial, plaintiff took the position that his son is not

his biological child.            Defendant had become pregnant prior to

the marriage, and plaintiff was aware of the possibility that he

may not be the child’s father, as defendant “told the Plaintiff

that she was 99.5% sure that the child was his[.]”                             Plaintiff

testified that he had a DNA test performed on his son, on the

pretense     of   doing   a    drug   test,    and   attempted       to    present   as

evidence the results of this DNA test to prove that he was not

the    biological     father     of   said    son.    The     trial       court   quite

properly     sustained    defendant’s        objection   to    the    admission      of

this DNA evidence.            Despite the exclusion of the evidence, the

trial court then made finding of fact number 6 “[t]hat in the

recent past the Plaintiff had DNA samples tested and established

to the best of scientific means under current circumstances that

the child was and is not his biological child.”                            Based upon

finding of fact number 6, the trial court concluded that this

factor was one which supported the unequal distribution:                          “[t]he
                                        -32-
fraud perpetrated on the Plaintiff to believe that the child

born during their relationship was his and the fact that he was

primarily responsible for that child’s support to and through

the age of 19.”       Many of the other factors upon which the order

relies are also irrelevant as they do not relate to the marital

economy.13 As the judgment must be reversed, we will not address

any   of    the    other    findings    of     fact   or   conclusions    of    law

challenged by defendant.

      For   the    foregoing    reasons,       we   reverse   the   ED   Affidavit

Order,     the    Sanctions    Order,    and    the   ED   Judgment.       We   are

particularly troubled by the need to vacate the ED Judgment, and

thus prolong this case which has already been pending for over

four and one-half years, especially since defendant has died

during this case.          In addition, an equitable distribution claim

is one of the very few types of cases which has a statutory

scheme which sets forth a timeline for each stage of the case.

See N.C. Gen. Stat. § 50-21.             We are concerned by the complete

13
  Factor (b) supporting the unequal distribution was “[t]he debt
that the Defendant incurred during the marriage and the fact
that Plaintiff had to pay off what he did both during the
marriage and after the separation.” Factor (b) seems to address
the economy of the marriage, but was perhaps misplaced; the
trial court may classify debts as marital or separate and may
determine what credit should be given for payment of debts after
the date of separation, but should not both give credit for
payment of debts and give an unequal distribution on this basis,
as this gives double credit for the debt payment.
                                     -33-
absence   of   any    mention       of    the      timeline      and        scheduling

requirements of North Carolina General Statue § 50-21 and the

Local Rules; such statutory provisions and rules are intended to

prevent   exactly    the    sort    of     delay       and    waste    of     judicial

resources which this case demonstrates. On remand, we direct the

Chief   District    Court   Judge    to    set     a   date    for    a     scheduling

conference, as directed by Rule 10(b) of the Local Rules, with

proper notice of this scheduling conference to plaintiff and

defendant, so that the trial court may set forth a new schedule

for this case on remand in accord with North Carolina General

Statute § 50-21 and the Local Rules, to the extent possible from

this point forward.

                                   IV.    Conclusion

           For the foregoing reasons, we reverse the ED Affidavit

Order, the Sanctions Order, and the ED Judgment; and we remand

for further proceedings consistent with this opinion.

    REVERSED and REMANDED.

    Judges MCGEE and BRYANT concur.
