Shropshire v. Shropshire ( 2022 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
2022-NCCOA-411
No. COA21-332
Filed 21 June 2022
Mecklenburg County, No. 16 CVD 18268
FREDERICK SHROPSHIRE, Plaintiff,
v.
SHEYENNE SHROPSHIRE, Defendant.
Appeal by plaintiff from order entered 17 November 2020 by Judge Tracy H.
Hewett in Mecklenburg County District Court. Heard in the Court of Appeals 8
March 2022.
Plumides, Romano & Johnson, P.C., by Richard B. Johnson, for Plaintiff-
Appellant.
Bratcher Adams Folk, PLLC, by Kalyn Simmons, Brice M. Bratcher, and
Jeremy D. Adams, for Defendant-Appellee.
Sheyenne Shropshire, pro se, for Defendant-Appellee.
CARPENTER, Judge.
¶1 Frederick Shropshire (“Plaintiff”) appeals from a judgment and order for
equitable distribution (the “Order”). On appeal, Plaintiff argues the trial court
abused its discretion by reopening evidence and requesting he provide evidence of his
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retirement plans’ date of trial values. He further argues the trial court abused its
discretion by: (1) making findings of fact and conclusions of law regarding his Fidelity
401(k) Plan1; (2) determining that an equal distribution of the marital estate was not
equitable; and (3) ordering Plaintiff to pay Sheyenne Shropshire (“Defendant”) a lump
sum distributive award of $20,000.00. Because the record lacks sufficient evidence
regarding Plaintiff’s retirement plans to support the trial court’s findings of fact, and
in turn its conclusions of law, we remand the matter to the trial court to allow for
entry of additional findings of fact and conclusions of law consistent with this opinion.
Accordingly, we do not reach the remaining issues.
I. Factual & Procedural Background
¶2 The record reveals the following: Plaintiff and Defendant married on 15 June
2007, separated on 12 October 2016, and divorced on 25 April 2018. Three children
were born of the marriage. Plaintiff initiated the instant action by filing a “Complaint
for Child Custody and Motion for Ex-Parte Emergency Child Custody and/or in the
Alternative Motion for Temporary Parenting Arrangement” (the “Complaint”) on 12
October 2016. On 12 October 2016, the trial court entered a temporary emergency
custody order, granting Plaintiff temporary custody of the three minor children.
¶3 On 24 October 2016, Defendant filed an answer to Plaintiff’s Complaint as well
1 The record also refers to this retirement plan as the “Disney Savings and Investment
Plan.”
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as a motion to set aside the custody order entered 12 October 2016 and a claim for
child custody. On 3 January 2017, Defendant filed an amended Answer to the
Complaint, which included counterclaims for post-separation support, alimony, child
custody, temporary and permanent child support, equitable distribution, and
attorney’s fees. On 6 March 2017, Plaintiff filed a “Reply, Defenses, and Motion in
the Cause for Equitable Distribution, Child Support and Attorney’s Fees.” On 6 July
2017, the trial court entered an order denying Defendant’s claims for post-separation
support and attorney’s fees.
¶4 Following a pre-trial discovery conference on 19 July 2017, the trial court
entered an “Initial Pretrial Conference, Scheduling, and Discovery Order in
Equitable Distribution Matter,” which ordered the parties to submit their equitable
distribution affidavits no later than 4 August 2017.
¶5 On 2 August 2017, Defendant filed her equitable distribution affidavit, and on
4 August 2017, Plaintiff filed his equitable distribution affidavit. Both parties listed
the Plaintiff’s and Defendant’s retirement plans, including Plaintiff’s Fidelity 401(k)
Plan, under Part I – Marital Property of the affidavit. Both parties also noted “TBD”
under the “date of separation” and “net value” columns pertaining to Plaintiff’s two
retirement plans. The parties did not list any property under Part II – Divisible
Property, of their respective equitable distribution affidavits. On 9 November 2017,
the trial court entered a “Status Conference Checklist and Order for Equitable
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Distribution Matter,” which set the equitable distribution hearing for 5 January
2018.
¶6 The equitable distribution trial was conducted on 7 August 2018 before the
Honorable Tracy H. Hewett, judge presiding. Defendant appeared pro se at the
hearing. Both parties testified at the hearing, and neither party offered expert
witnesses.
¶7 On 1 October 2018, Judge Hewett sent an e-mail to Defendant and counsel for
Plaintiff advising she would be reopening evidence in the equitable distribution
matter to obtain: (1) the date of trial values for Defendant’s two investment accounts,
including the Fidelity 401(k) Plan, and (2) the value of the parties’ marital residence.
She also informed the parties that she would schedule another hearing to admit the
requested evidence. Alternatively, she would allow the parties to agree “to submit
th[e] information ‘on paper.’”
¶8 In response to the trial court’s request, Plaintiff filed an “Objection, Notice of
Objection, Exception and Motion to Recuse” on 18 October 2018, in which he objected
to Judge Hewett’s request for evidence regarding his retirement accounts and sought
Judge Hewett’s recusal. On the same day, Defendant filed an objection to Plaintiff’s
motion. On 12 December 2018, the Honorable Chief Judge for Mecklenburg County
District Court, Regan Miller, entered an order denying Plaintiff’s motion to recuse.
Chief Judge Miller found, inter alia, “the Court’s request for additional documents or
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evidence prior to the close of all of the evidence can in no way be classified as ‘unfair
surprise,’ and is not grounds for a recusal.”
¶9 A hearing was held on 9 May 2019 in which the trial court put its requests on
the record and allowed the parties an opportunity to put their objections on the
record. The trial court notified the parties that it would withdraw its request for an
appraisal of the marital home but was still requesting “the evidence regarding the
passive appreciation for [Plaintiff’s Fidelity 401(k) Plan].”
¶ 10 Counsel for Plaintiff objected to the reopening of evidence on the ground
Plaintiff would be prejudiced since the parties did not identify any divisible property
in their equitable distribution affidavits nor did they supplement their affidavits to
add such property. Counsel further argued Defendant failed to meet her burden to
identify Plaintiff’s retirement accounts as divisible property and proffer evidence as
to the value of the accounts. The trial court overruled counsel’s objections, reasoning
Defendant requested the information at the equitable distribution hearing and
offered the divisible property value associated with her own retirement plan. At the
end of the hearing, the trial court requested the parties bring documentation by 12
May 2019 regarding the value of Plaintiff’s retirement plan as of the 7 August 2018
trial.
¶ 11 On 17 November 2020, the trial court entered the Order. Plaintiff timely filed
written notice of appeal from the Order.
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II. Jurisdiction
¶ 12 This Court has jurisdiction to review the Order pursuant to N.C. Gen. Stat. §
7A-27(c) (2021) and N.C. Gen. Stat. § 50-19.1 (2021).
III. Issues
¶ 13 The issues before the Court are whether: (1) the trial court abused its
discretion by reopening evidence after the close of the equitable distribution trial; (2)
the trial court abused its discretion by requesting Plaintiff provide the date of trial
value of his Fidelity 401(k) Plan; (3) findings of fact 31, 34, 40–43, 55, 57–58, and 60–
62 of the Order are supported by competent evidence; (4) the trial court abused its
discretion when it determined an equal distribution of the marital estate was not
equitable; and (5) the trial court abused its discretion by ordering Plaintiff to make a
lump sum $20,000.00 cash distributive award to Defendant.
IV. Reopening the Evidence
¶ 14 In his first argument, Plaintiff contends the trial court abused its discretion by
reopening evidence after the close of trial. Specifically, Plaintiff maintains the trial
court “was operating under the misapprehension of law that Plaintiff-Appellant was
obligated to provide the date of trial value of his [Fidelity 401(k)] Plan . . . .”
Defendant asserts the trial court acted properly because it “set forth in the record
that the evidence needed to be presented . . . and exercised its discretion to reopen
the case in order for the value to be produced.” In light of the broad discretion
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afforded to a trial judge as well as a judge’s duty to provide a fair and just trial, we
conclude Judge Hewett, as the presiding judge, did not abuse her discretion by
reopening evidence on her own initiative.
¶ 15 An “equitable distribution is a three-step process; the trial court must (1)
‘determine what is marital [and divisible] property’; (2) ‘find the net value of the
property’; and (3) ‘make an equitable distribution of that property.’” Cunningham v.
Cunningham, 171 N.C. App. 550, 555, 615 S.E.2d 675, 680 (2005); see Robinson v.
Robinson, 210 N.C. App. 319, 324, 707 S.E.2d 785, 790 (2011) (“[T]he [trial] court
must . . . classify all of the property and make a finding as to the value of all
[distributable] property.”); see also N.C. Gen. Stat. § 50-20 (2021).
¶ 16 Marital property includes “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). Divisible
property includes, inter alia, “[p]assive income from marital property received after
the date of separation,” such as interest or dividends. N.C. Gen. Stat. § 50-20(b)(4).
“[A]ll appreciation and diminution in value of marital and divisible property is
presumed to be divisible property unless the trial court finds that the change in value
is attributable to the postseparation actions of one spouse.” Cheek v. Cheek, 211 N.C.
App. 183, 184, 712 S.E.2d 301, 303 (2011) (citation omitted and emphasis in original).
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“[M]arital property shall be valued as of the date of the separation of the parties,”
while “[d]ivisible property . . . shall be valued as of the date of distribution.” N.C.
Gen. Stat. § 50-21(b) (2021).
¶ 17 On appeal, neither party offers a case or statute that specifically addresses
whether the trial court judge may sua sponte reopen the evidence in a civil proceeding
prior to the entry of judgment, absent a motion by a party or agreement by the parties.
After careful review of the relevant law, we see no reason to distinguish between a
trial court reopening evidence on its own initiative, and a trial court reopening
evidence upon a party’s motion. See, e.g., Wade v. Wade, 72 N.C. App. 372, 325 S.E.2d
260 (concluding the trial court did not abuse its discretion by allowing the defendant’s
motion to reopen evidence two weeks after the original hearing), disc. rev. denied, 313
N.C. 612, 330 S.E.2d 616 (1985); Coburn v. Roanoke Land & Timber Corp., 259 N.C.
100, 130 S.E.2d 30 (1963) (affirming the trial court’s denial of the plaintiff’s request
for leave to admit additional evidence).
¶ 18 It is well-established that “[t]he trial court has discretionary power to permit
the introduction of additional evidence after a party has rested. Whether the case
should be reopened and additional evidence admitted [is] discretionary with the
presiding judge.” McCurry v. Painter, 146 N.C. App. 547, 553, 553 S.E.2d 698, 703
(2001) (citations omitted). “A trial court may even re-open the evidence weeks after
holding the original hearing, or “[w]hen the ends of justice require[.]” In re B.S.O.,
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225 N.C. App. 541, 543, 740 S.E.2d 483, 484 (2013) (citations omitted). Our Supreme
Court has considered whether the party affected by the introduction of the evidence
would be “surprise[d] or improperly prejudice[d].” Miller v. Greenwood, 218 N.C. 146,
150, 10 S.E.2d 708, 711 (1940).
¶ 19 “Because it is discretionary, the trial judge’s decision to allow the introduction
of additional evidence after a party has rested will not be overturned absent an abuse
of that discretion.” McCurry, 146 N.C. App. at 553, 553 S.E.2d at 703 (citations
omitted). An abuse of discretion occurs when the decision to reopen evidence is
“manifestly unsupported by reason,” or “so arbitrary that it could not have been the
result of a reasoned decision.” State v. Mutakbbic, 317 N.C. 264, 273–74, 345 S.E.2d
154, 158–59 (1986) (citations omitted).
¶ 20 Further, a trial court “has broad discretion to control discovery” because its
principal role “is to control the course of the trial as to prevent injustice to any party
. . . .” Capital Res., LLC v. Chelda, Inc., 223 N.C. App. 227, 234, 735 S.E.2d 203, 209
(2012) (citations omitted). Additionally, it is the duty of the trial court judge “to see
to it that each side has a fair and impartial trial.” Miller, 218 N.C. at 150, 10 S.E.2d
at 711. In doing so, the judge has “discretion to take any action to this end within the
law . . . .” Id. at 150, 10 S.E.2d at 711.
¶ 21 The North Carolina Rules of Evidence, which afford the trial court discretion,
also support the conclusion a trial court may, on its own motion, reopen a case to
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allow for additional evidence. See generally N.C. Gen. Stat. § 8C-1 (2021). We note
the rules are to “be construed to secure fairness in administration, elimination of
unjustifiable expense and delay, and promotion of growth and development of the law
of evidence to the end that the truth be ascertained and proceedings justly
determined.” N.C. Gen. Stat. § 8C-1, Rule 102 (2021). Furthermore, the trial court
judge is “empowered to hear any relevant evidence,” N.C. Gen. Stat. § 8C-1, Rule 104,
cmt. (2021), and is not limited by the rules of evidence in determining “preliminary
questions concerning . . . the admissibility of evidence . . . .” N.C. Gen. Stat. § 8C-1,
Rule 104 (2021). The trial court has a duty to “exercise reasonable control over the
mode and order of interrogating witnesses and presenting evidence so as to . . . make
the interrogation and presentation effective for the ascertainment of the truth.” N.C.
Gen. Stat. § 8C-1, Rule 611 (2021). In fact, the trial court has the authority to
“appoint witnesses of its own selection,” N.C. Gen. Stat. § 8C-1, Rule 706 (2021),
including expert witnesses to appraise property in an equitable distribution action.
See Dorton v. Dorton, 77 N.C. App. 667, 676, 336 S.E.2d 415,422 (1985).
¶ 22 In this case, the trial judge took the equitable distribution matter under
advisement at the close of the 7 August 2018 hearing. On 1 October 2018, the trial
judge sent an email to Plaintiff’s counsel and Defendant, who was not represented by
counsel at the time. Judge Hewett sought, inter alia, the date of trial values of
Plaintiff’s two retirement accounts.
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¶ 23 A hearing was held on 9 May 2019 regarding the request. The trial court again
requested the value of Plaintiff’s retirement plans as of the date of trial. The trial
court reasoned at the 9 May 2019 hearing that Defendant offered the passive income
value on her own retirement account, so she would be prejudiced by Plaintiff not
offering the same information on his accounts. Counsel for Plaintiff objected to the
reopening of evidence, and the trial court overruled her objection. Thereafter,
Plaintiff took the stand and was asked on direct examination if he knew “the amount
of [his] retirement [plan as of] August . . . 7th, 2018.” He responded, “[n]o.” At the
end of the hearing, the trial court requested the parties provide documentation to
show the values of Plaintiff’s retirement accounts by the end of the week—12 May
2019.
¶ 24 In their respective equitable distribution affidavits, both parties listed the
retirement accounts as marital property. Moreover, neither party contended in their
affidavits that there was divisible property for the trial court to distribute. Based on
the affidavits, there is no dispute that Plaintiff’s retirement accounts have marital
property aspects. See N.C. Gen. Stat. § 50-20(b)(1). Nevertheless, Defendant’s
question to the trial court at the 7 August 2018 hearing raised the issue of whether
the retirement plans also include divisible property:
[Defendant]: You’re [sic] honor—and I don’t know if you
can answer this, but I’m just unsure why, uh, [Plaintiff]
contends that the value would be more given [my
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retirement] statement. They have date of separation, what
they felt was the value at $68,000. I don’t know why they
would value it at $75,000, but you said it only [sic] date of
separation. Is that correct?
[Trial court]: Right. And then, there can be, um, the
passive—[or] active gain, which is, uh, classified as
something else. But, uh—but we can get to that later.
[Defendant]: Okay. And then, his, uh, second 401k that he
started at this job, I don’t have a statement from them, so
I can’t confirm the value . . . .
¶ 25 During Defendant’s cross-examination of Plaintiff, the trial court returned to
the issue of active and passive gains:
[Trial court]: All right. Um, let me just make sure I’m clear
on one thing right quick, and that is on the—we have the
passive gain on [Defendant’s]—I don’t know if it was
termed to 401k. Um, do we have active or passive gain on
the TEGNA or the [Fidelity 401(k) Plan] account?
[Counsel for Plaintiff]: Your [sic] asking me or no?
[Trial court]: Yes, ma’am.
[Counsel for Plaintiff]: I’m looking. I don’t think I have it.
Let me see.
¶ 26 Again, during closing arguments, Defendant raised her concern over Plaintiff’s
undisclosed passive gains.
[Defendant]: They have the appreciated value, the passive
appreciation for mine, but not theirs, so I—you know, I
would hope that you would not count that or count it
equitably. I can’t—I mean, you can’t just list whatever
yours was at the date of separation, and whatever mine
was, and add this $17,000 to it without adding something
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to his. I’m sure he could pull it up just like I did on my
phone.
¶ 27 In this case, Judge Hewett found that the “ends of justice” and equity required
reopening the evidence based on her own action of not returning to Defendant’s
question of active and passive income at the 7 August 2018 hearing after noting she
would. See In re B.S.O., 225 N.C. App. at 543, 740 S.E.2d at 484. Judge Hewett also
based her decision to reopen evidence on Plaintiff using Defendant’s retirement plan
statement to obtain passive gains on her account despite not alleging any divisible
property in his equitable distribution affidavit. Plaintiff then refused to offer the
same evidence for his retirement accounts. Plaintiff was not “surprise[d]” by the
reopening of evidence because the trial court requested the information at the initial
equitable distribution hearing. See Miller, 218 N.C. at 150, 10 S.E.2d at 711. Chief
Judge Miller, the neutral and impartial judge ruling on Plaintiff’s motion to recuse
Judge Hewett, also found the request did not create a surprise for Plaintiff. Further,
Plaintiff was not “improperly prejudice[d]” by the request because Defendant
volunteered the passive gains earned on her own retirement plan, which the trial
court would equitably divide between the parties. See id. at 150, 10 S.E.2d at 711.
¶ 28 Therefore, the trial judge made a “reasoned decision,” see Mutakbbic, 317 N.C.
at 274, 345 S.E.2d at 159, and did not abuse her discretion by reopening evidence to
value Plaintiff’s retirement accounts as of the date of trial. See McCurry, 146 N.C.
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App. at 553, 553 S.E.2d at 703.
V. The Trial Court’s Request for Evidence Regarding Plaintiff’s
Retirement Account
¶ 29 In his second argument, Plaintiff contends the trial court abused its discretion
by “shifting the burden of proof by ordering Plaintiff-Appellant to provide
documentation or evidence of the value of his Fidelity 401(k) [Plan] at the date of trial
and failing to give Plaintiff-Appellant the ability to rebut the presumption that it was
divisible property.” Defendant argues the trial court did not abuse its discretion by
requesting information regarding Plaintiff’s retirement account because it was
necessary to equitably distribute the divisible property. We find Plaintiff’s argument
unpersuasive.
¶ 30 Here, the trial court judge offered to hold a hearing to allow the parties full
opportunity to be heard and to present additional evidence relating to Plaintiff’s
retirement accounts. As an alternative, the judge allowed the parties to submit
documentation if the parties so agreed. Although Plaintiff was given an
opportunity—but not ordered—to testify or admit additional evidence at a hearing as
to the classification and valuation of property, he declined.
¶ 31 Plaintiff cites to Miller v. Miller, 97 N.C. App. 77, 80, 387 S.E.2d 181, 184
(1990) (holding the trial court did not err in failing to classify and distribute a debt
where husband failed to meet his burden of proving the debt’s value and
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classification), Atkins v. Atkins, 102 N.C. App. 199, 208, 401 S.E.2d 784, 788 (1991)
(holding the husband did not satisfy his burden of proving a tract of land was separate
property), Albritton v. Albritton, 109 N.C. App. 36, 41, 426 S.E.2d 80, 83 (1993)
(refusing to remand a case where the “trial court failed to make a specific finding as
to the present discount value” of a party’s pension plan, and the party did not offer
evidence as to the pension plan’s value), and Montague v. Montague, 238 N.C. App.
61, 68, 767 S.E.2d 71, 76– 77 (2014) (holding the trial court did not abuse its discretion
by failing to omit a lawnmower from its equitable distribution where the husband did
not provide the requisite evidence), to argue the trial court improperly shifted
Defendant’s burden of presenting evidence regarding the classification and valuation
of Plaintiff’s retirement plans to Plaintiff. We disagree.
¶ 32 As discussed above, the trial court did not abuse its discretion by reopening the
evidence. The cases on which Plaintiff relies are distinguishable from the instant
case where the trial court, on its own motion, reopened the evidence to allow
additional information on an item of divisible property. Thus, we cannot conclude
the trial court improperly shifted the burden of proof. Although the trial court was
under no obligation to request the evidence, it found the evidence was necessary to
accurately value marital and divisible property and achieve a fair and just equitable
distribution judgment.
VI. Findings of Fact
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¶ 33 In his third argument, Plaintiff contends findings of fact 31, 34, 40–43, 55, 57–
58, and 60–62 of the Order are not supported by the evidence. Defendant argues “the
trial court’s findings of fact were supported by competent evidence from the record
and are detailed enough to not be disturbed on appeal.” Defendant further argues it
was Plaintiff who provided the information regarding his Fidelity 401(k) Plan to the
trial court; thus, he may not challenge the evidence.
¶ 34 We review a judgment entered after a non-jury trial to determine “whether
there was competent evidence to support the trial court’s findings of fact and whether
its conclusions of law were proper in light of such facts.” Montague, 238 N.C. App. at
63, 767 S.E.2d at 74. “Competent evidence is evidence that a reasonable mind might
accept as adequate to support the finding.” Lund v. Lund, 244 N.C. App. 279, 287,
779 S.E.2d 175, 181 (2015) (citation omitted). Additionally, competent evidence is
“admissible or otherwise relevant.” State v. Bradley, 2022-NCCOA-163, ¶ 14. We
note the record on appeal in this case was settled pursuant to Rule 11(b) of the North
Carolina Rules of Appellate Procedure. See N.C. R. App. P. 11(b).
¶ 35 Under Rule 11(b),
[i]f the record on appeal is not settled by agreement under
Rule 11(a), the appellant shall, within the same times
provided, serve upon all other parties a proposed record on
appeal constituted in accordance with the provisions of
Rule 9. Within thirty days . . . after service of the proposed
record on appeal upon an appellee, that appellee may serve
upon all other parties a notice of approval of the proposed
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record on appeal, or objections, amendments, or a proposed
alternative record on appeal in accordance with Rule 11(c).
If all appellees within the times allowed them either serve
notices of approval or fail to serve either notices of approval
of objections, amendments, or proposed alternative records
on appeal, appellant’s proposed record on appeal thereupon
constitutes the record on appeal.
Id.¶ 36 Here, Plaintiff composed the record on appeal and served the proposed record
upon Defendant on 30 April 2021. There is no evidence Defendant objected to, or
approved of, the record “within thirty-days . . . after service.” See id. Therefore,
Plaintiff’s “proposed record on appeal . . . constitutes the record on appeal.” See id.(emphasis added).
¶ 37 Plaintiff first challenges findings of fact 31 and 34. Finding of fact 31 provides:
“During the trial, both parties requested of the other, date of trial values on their
respective retirement accounts set out above.” Although the transcripts of the 7
August 2018 hearing reveal Defendant asked the trial court about potential passive
income on Plaintiff’s retirement accounts, and again commented on the subject
during her closing argument, there is no evidence she requested from Plaintiff the
date of trial values of his retirement accounts. Rather, the trial court told Defendant
they would return to the issue, and during Defendant’s cross examination of Plaintiff,
the trial court asked Plaintiff’s counsel whether passive or active gains had been
earned on Plaintiff’s retirement plans. Defendant again raised the issue during her
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closing argument. Therefore, we conclude finding of fact 31 is not supported by
competent evidence. See Montague, 238 N.C. App. at 63, 767 S.E.2d at 74.
¶ 38 Finding of fact 34 provides: “When Defendant asked for this information
during cross examination, the Court determined this would be provided at a later
time during trial and then neglected to return to Defendant and allow the question.”
The transcripts tend to show Defendant was testifying on direct examination
regarding marital property and the values she assigned to the property when she
asked the trial court why Plaintiff valued her account using the date of trial value.
The trial court explained that Plaintiff’s valuation concerns passive or active gain and
that the court would return to the issues. The finding that the question occurred on
cross examination is not supported by the competent evidence; however, this error
was harmless. See Hart v. Hart, 74 N.C. App. 1, 5, 327 S.E.2d 631, 634 (1985). We
conclude the remaining findings within finding of fact 34 are supported by competent
evidence. See Montague, 238 N.C. App. at 63, 767 S.E.2d at 74.
¶ 39 Plaintiff next challenges findings of fact 40, 41, 42, and 43 which provide the
following:
40. Plaintiff provided information only on the Fidelity
401(k) Plan which showed that on, or about July 16th 2018,
and without notice to Defendant/Wife or accountability for
post separation increases, Husband withdrew the entirety
of the funds from the account, leaving a zero balance on the
date of trial.
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41. No evidence was presented showing that the Fidelity
401(k) Plan had been rolled into another 401(k).
42. The total of the amount withdrawn by Husband from
the Fidelity 401(k) Plan, approximately twenty-one (21)
days prior to trial, was one hundred ninety-three thousand
one hundred seventy-nine dollars and fifty-two cents
($193,179.52), which is thirty four thousand dollars and
fifty cents ($34,000.50) more than the amount on the
statement provided at trial which showed the date of
separation value.
43. There were no post separation deposits made by
Husband, so the passive gain to the Fidelity 401(k) Plan of
thirty-four thousand dollars and fifty cents ($34,000,50), is
a marital asset to be distributed as such to the Plaintiff.
¶ 40 We are unable to determine from the record before us whether competent
evidence exists to support the trial court’s findings regarding Plaintiff’s Fidelity
401(k) Plan, or whether this evidence was intentionally omitted from the record on
appeal. Nonetheless, Defendant did not object to the proposed record on appeal, so it
“constitutes the record on appeal.” See N.C. R. App. P. 11(b). In any event, findings
of fact 40, 41, 42, 43 concerning Plaintiff’s Fidelity 401(k) Plan are not supported by
competent evidence based upon the record on appeal. See Montague, 238 N.C. App.
at 63, 767 S.E.2d at 74. Because the trial court relied on these unsupported findings
to make additional findings on the distribution factors under N.C. Gen. Stat. § 50-
20(c) and related conclusions of law, we must remand the matter to the trial court.
On remand, the trial court may hold an evidentiary hearing and, in its discretion,
admit additional evidence if it deems necessary as to findings 40, 41, 42, and 43. See
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Lund, 244 N.C. App. at 287, 779 S.E.2d at 181; Bradley, 2022-NCCOA-163, ¶ 14.
Because we remand the matter, we need not consider Plaintiff’s arguments as to the
trial court’s conclusions of law, its unequal division of property, and its order for
Plaintiff to make a distributive award.
REMANDED.
Judges GORE and GRIFFIN concur.