The opinion
IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA19-638
Filed: 5 May 2020
Cabarrus County, No. 16-CVD-1938
KIMBERLY BEST (formerly Best-Staton), Plaintiff,
v.
RANDALL STATON, Defendant.
Appeal by Plaintiff from judgment entered 21 December 2018 and from order
entered 18 September 2018 by Judge William G. Hamby, Jr., in Cabarrus County
District Court. Heard in the Court of Appeals 19 February 2020.
Plumides, Romano, Johnson, & Cacheris, P.C., by Richard B. Johnson, for
Plaintiff-Appellant.
No brief filed for Defendant-Appellee.
DILLON, Judge.
Plaintiff appeals from an Order Dismissing Plaintiff’s Claim for Equitable
Distribution and Denying Plaintiff’s Motion to Dismiss Defendant’s Claim for
Equitable Distribution and from Judgment of Equitable Distribution.
I. Background
On 25 April 2009, Defendant Randall Staton (“Husband”) and Plaintiff
Kimberly Best (“Wife”) were married. In November 2016, Husband and Wife
officially separated.
BEST V. STATON
Opinion of the Court
In this action, Husband and Wife each filed a claim seeking equitable
distribution. Wife filed her claim for equitable distribution three months before the
parties separated. One month before the parties separated, Husband filed a
responsive pleading, which included his statement of intent to file a claim for equitable
distribution. Then, a month after the parties separated, Husband filed his
counterclaim for equitable distribution.
Husband and Wife each moved to dismiss the other’s claim for equitable
distribution. The trial court granted Husband’s motion and denied Wife’s motion,
reasoning that because Wife’s claim was filed before the parties’ date of separation,
it lacked jurisdiction over her claim.
Later, in December 2018, the trial court entered a Judgment of Equitable
Distribution based on Husband’s claim.
II. Analysis
Wife makes three arguments on appeal, which we address in turn.
A. Subject Matter Jurisdiction
First, Wife argues that the trial court did not have subject matter jurisdiction
over Husband’s equitable distribution claim. We disagree and conclude that the trial
court had jurisdiction over that claim.
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BEST V. STATON
Opinion of the Court
Whether a trial court has subject matter jurisdiction is a question of law,
reviewed de novo on appeal. Azure Dolphin, LLC v. Barton, 371 N.C. 579, 594, 821
S.E.2d 711, 722 (2018).
Our courts have consistently found there to be no subject matter jurisdiction
where a party files an equitable distribution claim prior to the date of the couple’s
separation. See, e.g., Atkinson v. Atkinson, 350 N.C. 590, 590, 516 S.E.2d 381, 381
(1999) (per curiam). However, our Court has found subject matter jurisdiction over
a defendant’s counterclaim for equitable distribution filed after separation though
plaintiff filed her complaint for equitable distribution before the date of separation.
Gurganus v. Gurganus, 252 N.C. App 1, 4-5, 796 S.E.2d 811, 814 (2017).
Wife argues that Husband’s statement in his responsive pleading filed a month
before separation was, in effect, a claim for equitable distribution. We disagree.
Husband did not pray for equitable distribution in that pleading, but rather simply
prayed that he be allowed to file such claim when the parties separated. He
specifically requested to “be allowed to file for equitable distribution upon separation
of the parties or a ruling on the Divorce from Bed and Board.” (Emphasis added).
Wife, though, contends that this case is controlled by our decision in Coleman
v. Coleman, 182 N.C. App. 25, 641 S.E.2d 332 (2007). In that case, we determined
that a counterclaim that “hereby requests and reserves the right for equitable
distribution” was a valid equitable distribution claim. 182 N.C. App. at 26, 641 S.E.2d
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BEST V. STATON
Opinion of the Court
at 334 (emphasis added). We held that the defendant’s “request” was “sufficient to
put [p]laintiff on notice that [d]efendant was [presently] asking the court to equitably
distribute the parties’ marital and divisible property[.]” Id. at 29, 641 S.E.2d at 336.
Our Court concluded that the use of the word “request” showed that “[the d]efendant
did not merely assert that she intended to file a claim for equitable distribution . . .
at some indefinite time in the future.” Id. at 30, 641 S.E.2d at 337.
But Husband’s language in his initial pleading is different. Husband merely
expressed an intent to file an equitable distribution claim in the future “upon
separation of the parties[.]” Husband’s did not pray for equitable distribution until
after the couple’s date of separation. Therefore, we conclude that the trial court had
subject matter jurisdiction over Husband’s equitable distribution claim.
B. Property Value of Marital Home
Wife next argues that the trial court abused its discretion when it determined
on its own that the marital home had a property value increase of $23,700 from the
date of separation to the date of the hearing, based on the property’s tax value.
In its order, the trial court noted that the parties agreed that the marital home
had a net value at the time of separation of $91,195. The trial court then made
findings which generally reflected this value, finding a gross value of $352,000 and a
debt of $260,805 at the time of separation (for a net value of $91,195). However, the
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BEST V. STATON
Opinion of the Court
trial court found that after the date of separation, the value of the marital home
passively increased in value by $23,700:
Item I-8 is the passive increase in the value of the marital
residence, which the Court determines from the public
records to be $23,700, in the absence of any other credible
evidence of current valuation, leaving the residence with a
current valuation of $275,700 [sic] as opposed to the
valuation of $252,000 [sic] at the time of separation.
Wife, though, states in her brief that neither party offered the tax value into evidence
to show a passive increase in the home value. As explained below, tax value evidence
is incompetent to prove value, and it would be an abuse of discretion for a trial court
to take judicial notice of and rely upon a tax value to support a finding. Husband has
not filed an appellee’s brief. The record is rather voluminous, and our review has not
uncovered a point in the proceeding before the trial court where the tax value was
offered by either party as evidence to prove a passive increase in value.
The tax value – that is, the value assigned by the county in assessing ad
valorem taxes against real estate – is not competent evidence of a property’s value.
See Mfg. Co. v. R.R., 222 N.C. 330, 332, 23 S.E.2d 32, 36 (1942) (emphasis added)
(“The rule with us, ordinarily, is that evidence of tax value listings on real estate is
not competent on an issue of valuation[.]”). This is so because, as our Supreme Court
has explained, “in the valuation of [ ] land for taxation the owner is not consulted . . .
It is well understood that it is the custom of the assessors to fix a uniform rather than
an actual valuation.” Bunn v. Harris, 216 N.C. 366, 373, 5 S.E.2d 149, 153 (1939).
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BEST V. STATON
Opinion of the Court
We note, though, that the tax value of real property “may be considered by the fact-
finder if its introduction is not properly objected to.” Edwards v. Edwards, 251 N.C.
App. 549, 551, 795 S.E.2d 823, 825 (2017) (emphasis added).
Though a trial court is vested with broad discretion in ordering equitable
distribution, Wiencek-Adams v. Adams, 331 N.C. 688, 691, 417 S.E.2d 449, 451
(1992), we hold that it is an abuse of discretion for a trial court rely on incompetent
evidence that was not introduced into evidence by either party. As to this issue, we
direct the trial court to act as indicated in the Conclusion section below.
C. Plaintiff’s Consolidated Judicial Retirement Plan
Finally, Wife argues that the trial court abused its discretion when it admitted
hearsay evidence of Wife’s consolidated judicial retirement plan. For the following
reasons, we hold that Wife has failed to preserve this issue for our review.
Our Rules of Appellate Procedure state that “[i]n order to preserve an issue for
appellate review, a party must have presented to the trial court a timely request,
objection, or motion, stating the specific grounds for the ruling the party desired the
court to make if the specific grounds were not apparent from the context.” N.C. R.
App. P. 10(a)(1). Rule 10 also requires that the complaining party “obtain a ruling
upon the party’s request, objection, or motion.” Id.
Wife argues on appeal that the trial court erred by admitting into evidence a
valuation of her retirement plan and an affidavit from the expert who valued it
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BEST V. STATON
Opinion of the Court
because “[t]he valuation and affidavit do not fall under any of the exceptions of Rule
803.” However, Wife did not object at trial to the admission of this evidence on
hearsay grounds. Furthermore, although Wife objected to the admission of the
valuation and affidavit based on a violation of deadlines set in a pretrial order, Wife
failed to obtain a ruling upon her objection:
[Husband’s Counsel:] And Your Honor, along with that, if
I may … admit the affidavit of Ann Marie Joseph along
with that - -
[Wife’s Counsel:] Objection, I’ve never seen the affidavit.
Didn’t even know it existed until a few minutes ago. And
objection, uh, note - - I’d ask the court to note my exception
to Number 15.
[Judge:] Absolutely.
[Wife’s Counsel:] And Your Honor, may we approach?
(Inaudible – 03:12:30) objection with the exception to your
ruling.
[Judge:] Absolutely.
The parties continued to question the witness following this interaction, but the judge
never ruled on Wife’s objection and Wife never sought a ruling. Thus, Wife has failed
to preserve this issue for our review.
III. Conclusion
We hold that the trial court had subject matter jurisdiction over Husband’s
equitable distribution claim.
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BEST V. STATON
Opinion of the Court
Regarding the trial court’s reliance on the tax value to support its finding of a
post-separation, passive increase in the value of the marital home, we have been
unable to locate anything in the record indicating that either party offered the tax
value as evidence for this purpose. And Husband has not filed an appellee’s brief to
counter Wife’s contention that no such evidence was offered. Therefore, we must
vacate and remand the Judgment of Equitable Distribution.
On remand, the trial court must reconsider its finding regarding the post-
separation, passive increase in value of the marital home. If the record, indeed, shows
that the tax value was offered as evidence of a passive increase and if this evidence
was not objected to, then we direct the trial court to re-enter its judgment with a cite
from the record of that evidence. Otherwise, the trial court may make a new finding
of a passive increase (or decrease) based on any competent or unobjected-to
incompetent evidence in the record. But if there is no such evidence in the record,
then the trial court shall strike its finding regarding the passive increase in value of
the marital home. If the trial court modifies its finding regarding the passive
increase, the trial court shall then modify the remainder of the order, if necessary, to
achieve a distribution that it determines to be equitable.
VACATED AND REMANDED.
Judges BERGER and COLLINS concur.
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