McKee-Whipple v. Whipple

An unpublished opinion of the North Carolina Court of Appeals does not constitute

controlling legal authority. Citation is disfavored, but may be permitted in accordance with

the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA25-201

Filed 18 February 2026

Wake County, No. 22CVD005293-910

CORI MCKEE-WHIPPLE, Plaintiff,

v.

DAVID WHIPPLE, Defendant.

Appeal by defendant from orders entered 30 August 2024 and 25 September

2024 by Judge Rhonda Young in Wake County District Court. Heard in the Court of

Appeals 29 January 2026.

Tortora Family Law, by Carrie B. Tortora, for plaintiff-appellee.

Sandlin Family Law Group, by Deborah Sandlin, for defendant-appellant.

FLOOD, Judge.

Defendant David Whipple (“Husband”) appeals from the trial court’s orders on

equitable distribution and his Rule 60(b)(5) motion. On appeal, Husband argues the

trial court abused its discretion in, first, its valuation and distribution of certain stock

assets in the equitable distribution order, and second, denying his Rule 60(b)(5)

motion without considering evidence of the post-hearing valuation of the stock. Upon

review, we affirm the trial court where the trial court reasonably valued the stock at

MCKEE-WHIPPLE V. WHIPPLE

Opinion of the Court

issue, acted within its discretion in the stock’s distribution, and denied Husband’s

Rule 60(b)(5) motion on sufficiently reasoned grounds.

I. Factual and Procedural Background

After experiencing marital difficulties and separating from Husband on 27

September 2021, Plaintiff Cori McKee-Whipple (“Wife”) filed a complaint on 2 May

2022 against Husband, requesting, inter alia, equitable distribution of Husband and

Wife’s marital property. The trial court held an equitable distribution hearing on 22

May 2023; during the hearing, Wife presented evidence as to the valuation of certain

marital property, namely, common stock in Measured Analytics, a privately held

cyber insurance business Husband co-founded.

The evidence consisted, in relevant part, of the testimony of Gary Gerlach, a

business valuation specialist testifying for Wife, and a 409A Valuation of Measured

Analytics by Carta Valuations, LLC, a business valuation firm that had assessed

Measured Analytics as of 1 September 2021. Gerlach testified that, pursuant to Wife’s

request, he had reviewed the Carta Valuations report and conducted independent

research in the documents contained therein. He testified that Carta used a valuation

method known as the “Backsolve Method,” which is considered to be “the most

reliable indicator of value of an early[-]stage enterprise[.]” He also testified that a

“409 [v]aluation determines the fair market value of common stock in a private

company to set the exercised price of an employee’s stock option.” Finally, Gerlach

testified that the Carta Valuations report placed the value of the common stock of

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Measured at 44 cents per share, and that this ultimate valuation was half of what

the estimated value would have been were it not for Measured’s privately held status

and lack of marketability.

On 8 August 2023, the trial court entered an order on equitable distribution,

which was amended twice before reaching its final state on 30 August 2024—the

version of the equitable distribution order Husband now challenges on appeal. In the

amended order, the trial court made, in relevant part, the following findings of fact:

33. During the marriage [Husband], with co-founder Jack

Vines, started business that is startup business in the

technology business offering cyber insurance and risk

analysis. This business is incorporated in the state of

Delaware as Measured Analytics and Insurance, Inc[.] . . .

. [Husband] owns 15.8177% of Measured Analytics which

is held in fully vested common stock. [Husband] holds

2,160,000 shares of fully vested common stock in Measured

Analytics that are marital.

34. The headquarters of Measured Analytics is in Utah.

35. [Husband] and Mr. Vines together own 33% of

Measured Analytics. [Husband] is a key employee of

Measured Analytics.

36. [Husband] is the Chief Technology Officer of Measured

Analytics and is on the board of the company. [Husband]

travels to Utah for board meetings and will stay with Mr.

Vines while in Utah for meetings.

37. For the past several years, Measured has hired

independent appraisers, Carta Valuations, LLC . . . , to

value the company’s stock by way of 409A valuation.

Specifically, Measured had 409A valuation report prepared

dated September 24, 2021 (valuation date September 1,

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2021, . . . which was approximately one week prior to the

parties’ separation.

38. Gary Gerlach testified on behalf of [Wife]. Mr. Gerlach

is Director in Forensics, Valuation and Litigation Support

at Elliott Davis, regional CPA firm. Mr. Gerlach’s role at

Elliott Davis is to value closely-held or privately-owned

companies, which he has been doing for 30 years. Mr.

Gerlach reviewed the 409A valuation prepared by Carta,

as well as financial statements and tax returns of

Measured, accounts receivable aging reports, the

Restricted Stock Purchase Agreement, and other

documents produced by Measured included in the “Series

Seed 2 Financing Binder.” In addition, Mr. Gerlach

performed research, including review of the Valuation of

Privately-Held Company Equity Securities Issues as

Compensation Accounting & Valuation Guide published by

the [American Institute of Certified Public Accountants],

as well as various publications in the BV field regarding

the use of Option Price Modeling (OPM) in early-stage

valuations. Mr. Gerlach testified that the methodology

used by Carta to value the common equity of Measured

(backsolve method in conjunction with OPM) is commonly

used to value the equity of early-stage technology

companies. He further testified that a 409A valuation is an

independent appraisal of the fair market value (FMV) of

private company’s common stock on the date of issuance,

and the purpose of 409A valuation is to determine the FMV

of equity in private company. Carta used the Fair Market

Value standard in its 409A valuation. Mr. Gerlach testified

that based on his expertise and research, the backsolve

method used by Carta is the most reliable indicator of value

of an early-stage enterprise if relevant and reliable

transactions have occurred in the enterprise’s equity

securities. The formula was based on the Series Seed 2

preferred stock financing infusing $7 million of preferred

stock at $2.12 per share in July 2021. Based on this

financing, Carta backsolved the entire equity of Measured

Analytics and then allocated this value among its various

types of equity (preferred stock, common stock and stock

options) using OPM.

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39. Per the 2021 Carta report, the value of Measured

common stock was $.44 on the date of separation. Per the

capitalization table produced by Measured, [Husband]’s

shares of common stock in Measured at the date of

separation were 2,160,000, yielding total value of

$950,400.00 for [Husband]’s Measured stock on the date of

separation. However, the 409A valuation dated 9/1/2022

dropped to $0.35 per share. Thus, the total value of

[Husband]’s shares would be $756,500.00 according to the

more recent valuation.

40. There was no evidence presented that the decline in

value of the Measured Analytics share [was] the result of

any postseparation actions of [Husband] or Measured

Analytics; thus, the decrease in value of the Measured

Analytics stock must be classified as divisible property.

41. Measured Analytics is valued at $15,346,000.00 but is

not cash flow positive at this time. A Venture Capital Firm

invested 7.1 million dollars in Measured Analytics.

42. Mr. Gerlach noted that Measured Analytics does not

have business track record nor does the business have a

history of revenue or earnings.

43. There is no established market for the Measured

Analytics stock, so the value of the stock was discounted by

50%.

44. On May 22, 2023, Measured Analytics And Insurance,

Inc. executed “Waiver of Right of First Refusal” containing

waivers of the rights of first refusal and waiver of co-sale

rights . . . . Thus, in order for [Wife] to receive one-half of

the 2,160,000 shares in Measured held in [Husband]’s

name, [Wife] would be required to sign two documents: 1)

the current Voting Agreement and Right of First Refusal;

and 2) the Co-Sale Agreement. These two agreements

already bind [Husband] in terms of his ownership rights in

the existing 2,160,000 shares of Measured Stock held in

[Husband]’s name. By [Wife] likewise executing these two

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agreements, [Wife] would be placed in the same relative

position to [Husband] in terms of her rights and obligations

concerning the ownership of her shares of the Measured

common stock.

45. [Wife] is not involved with and has never been involved

with Measured Analytics.

46. [Wife] is not familiar with the business organization or

its structure.

47. [Wife] is not familiar with cyber insurance.

48. If [Wife were] to receive common stock, she would have

limited voting power in Measured.

....

53. By greater weight of the evidence, the Court finds that

the Measured Analytics common stock owned by

[Husband] (2,160,000 shares) shall be distributed to

[Husband] at value of $756,500.00. [Wife] has rebutted the

presumption that an in-kind distribution is equitable, and

the court finds that distributive award is equitable.

....

56. The Court finds that the net value of the marital estate

is $886,867.37.

57. According to N.C.G.S. § 50-20, an equal division of the

marital and divisible assets is presumed equitable. This

presumption has been rebutted and therefore and [sic] this

Court finds that an unequal division, in favor of [Wife], of

the net value of the marital and divisible assets is

equitable.

58. [Husband] has the ability to pay the distributive award

from the assets distributed to him herein. In addition,

[Husband] testified that he has the ability to pay the

distributive award if required.

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59. [Husband] shall make distributive award in the

amount of $578,250.07 to [Wife].

60. The N.C.[G.S.]. § 50-20(d) presumption, that an in-kind

distribution of marital or divisible property is equitable,

has been rebutted by a greater weight of the evidence, as

an unequal division of the parties’ net marital and divisible

estate is equitable, and an in-kind distribution of the

parties’ assets and debts will not yield an equitable division

of the parties’ net martial divisible estate. That the

presumption that an in-kind division is equitable is also

rebutted by the fact that the most valuable marital asset is

Measured Analytics.

61. An unequal division of the marital and divisible assets

is equitable in that there are sufficient distributional

factors to justify awarding [Wife] more than 50% of the net

marital estate. [Wife] shall be awarded 60% of the net

marital estate and [Husband] shall be awarded 40% of the

net marital estate. . . .

Based on these findings, the trial court concluded as a matter of law that an equal

and in-kind distribution was inappropriate with respect to the Measured stock and

ordered Husband to pay a distributive award of $578,250.07 to Wife. Husband

appealed the amended equitable distribution order.

Prior to the amendment of the equitable distribution order, Husband had

moved the trial court for relief from judgment pursuant to Rule 60(b)(5) of our Rules

of Civil Procedure, arguing that

Measured Analytics has failed as a business venture due to

the vagaries of the economy, the volatilities of the

marketplace, regulatory issues beyond the reasonable

control of the Measured Analytics management team, the

inherent risks facing a startup venture, and other reasons

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to be presented at a hearing on this matter, but through no

significant fault or active cause of [Husband].

The matter came on for hearing; during the hearing, the trial court orally indicated

it was disinclined to allow the motion for relief from judgment because volatility was

“the nature of stock.” As such, it did not allow Husband to present evidence of the

valuation of the Measured stock after the date of the equitable distribution hearing.

The trial court entered an order denying his Rule 60(b)(5) motion, and Husband

appealed once more.

II. Jurisdiction

This Court has jurisdiction to hear this appeal pursuant to N.C.G.S. § 7A-27(b)

(2023).

III. Standard of Review

“The standard of review on appeal from a judgment entered after a non-jury

trial is whether there is competent evidence to support the trial court’s findings of

fact and whether the findings support the conclusions of law and ensuing judgment.”

Pegg v. Jones, 187 N.C. App. 355, 358 (2007) (citations and internal quotation marks

omitted), aff’d per curiam, 362 N.C. 343 (2008). “The trial court’s findings of fact are

binding on appeal as long as competent evidence supports them, despite the existence

of evidence to the contrary.” Id. (citation omitted).

The ultimate decision on “[e]quitable distribution is vested in the discretion of

the trial court and will not be disturbed absent a clear abuse of that discretion.”

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Wiencek-Adams v. Adams, 331 N.C. 688, 691 (1992) (citation omitted). “Only a finding

that the judgment was unsupported by reason and could not have been a result of

competent inquiry or a finding that the trial judge failed to comply with the statute[]

. . . will establish an abuse of discretion.” Id. (citations omitted).

Likewise, “the standard of review of a trial court’s denial of a Rule 60(b) motion

is abuse of discretion.” Davis v. Davis, 360 N.C. 518, 523 (2006).

IV. Analysis

On appeal, Husband argues (A) the trial court’s equitable distribution order

reflects an abuse of discretion as to the valuation and distribution of the Measured

stock, and (B) the trial court erred in denying Husband’s Rule 60(b)(5) motion.

A. Stock Valuation and Distribution

Husband first argues that the trial court abused its discretion in entering the

equitable distribution order due to its alleged misreliance on the evidence at trial.

Specifically, Husband argues the trial court’s order (1) reflected legally insufficient

factfinding; (2) improperly relied upon evidence that pertained to general stock

valuations rather than valuations pertinent to the specific stock at issue; (3) in the

alternative, should have ordered in-kind distribution of the measured stock; and (4)

should not have ordered unequal distribution. We disagree.

1. “Mere Recitation”

At the threshold, we note that Husband, in arguing the trial court abused its

discretion in its stock valuations, specifically challenges the trial court’s findings of

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fact, arguing the factfinding of the trial court “constitute[s] mere recitation of

testimony rather than actual findings of fact.” In arguing for the invalidity of these

findings—namely, the trial court’s findings of fact 38, 39, and 42—Husband

specifically calls our attention to the fact that the trial court phrases its findings by

stating that Gerlach “testified” or “noted” a given fact, or that a given finding was

“[p]er the 2021 Carta report[.]”

This argument misunderstands our jurisprudence concerning the factfinding

of a trial court. While we have, from time to time, overturned an order of a trial court

on the basis that the factfinding reflected the “mere recitation” of testimony, see, e.g.

Long v. Long, 160 N.C. App. 664, 668 (2003) (applying the “mere recitation” rule to

the termination of alimony); Schmeltzle v. Schmeltzle, 147 N.C. App. 127, 132 (2001)

(same), the thrust of the rule is that reciting testimony cannot serve as a replacement

for the case-specific logical reasoning a trial court must employ when finding the facts

necessary to support a legal ruling, see Williamson v. Williamson, 140 N.C. App. 362,

364 (2000) (“These findings are mere recitations of the evidence and are not the

ultimate facts required to support the trial court’s conclusions of law regarding the

needs of the parties.”). It is not a catch-all prohibition on a trial court indicating the

evidentiary sources of specific facts found. Indeed, if such a rule were to exist, it would

only serve to frustrate the trial court’s obligation to establish that its findings are

supported by competent evidence on the Record. See Pegg, 187 N.C. App. at 358.

Here, read in context, findings 38, 39, and 42 are clearly indications of the

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testimony the trial court found credible and supportive of both the ultimate findings

and legal conclusions in its equitable distribution order. As Husband challenges these

findings strictly on the basis of their purported status as “mere recitation,” his

challenges to these findings of fact are without merit.

2. Specificity of Stock Valuation

Husband next argues the trial court abused its discretion in applying its stock

valuation. While a trial court is not bound to a particular methodology, we have said

that a trial court, when evaluating marital interest in a business, must “reasonably

approximate[]” its value using a “sound valuation method”:

In an equitable distribution proceeding, the trial court is to

determine the net fair market value of the parties’ property

based on the evidence offered by the parties. While there is

no required method to follow in assessing the value of the

parties’ marital property, the approach utilized must be

sound. In other words, the trial court must determine

whether the methodology underlying the testimony offered

in support of the value of a marital asset is sufficiently

valid and whether that methodology can be properly

applied to the facts in issue. In valuing a marital interest

in a business, the task of the trial court is to arrive at a

date of separation value which reasonably approximates

the net value of the business interest. The trial court’s

findings of fact regarding the value of a spouse’s business

should be specific, and the trial court should clearly

indicate the evidence on which its valuations are based,

preferably noting the valuation method or methods on

which it relied.

Robertson v. Robertson, 174 N.C. App. 784, 785–86 (2005) (citation modified). “Where

it appears that the trial court has reasonably approximated the net value of the

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business based on competent evidence and on a sound valuation method or methods,

the valuation will not be disturbed on appeal.” Id. at 786 (citation modified).

In contesting the reasonableness of the trial court’s stock valuation, Husband

relies on Stowe v. Stowe, 272 N.C App. 423 (2020). In Stowe, we held that the trial

court’s valuation of the stock at issue was unreasonable where the trial court, first,

based its valuation on an article whose author had no “background or qualifications

to assert an opinion of value[,]” id. at 432; second, failed to consider several factors

discussed in our precedent relating to intangible goodwill to the business, including

“the history of the enterprise from its inception, the economic outlook in general and

the condition and outlook of the specific industry in particular, the financial condition

of the business, the company’s earning capacity, [and] the market price of

corporations engaged in the same or a similar line of business,” id. at 435; and third,

inequitably credited the same funds to a single spouse twice, id. at 436. Ultimately,

we held the trial court abused its discretion in its equitable distribution order and

reversed with respect to the stock valuation issue. Id. at 444–45.

Here, Husband argues the trial court’s reliance on Gerlach’s valuation

testimony was unreasonable where Gerlach, in turn, relied on reports of the value of

Measured from Carta Valuations, LLC. He specifically argues that, like the article in

Stowe, the trial court’s attribution of credibility to the Carta Valuations report was

unreasonable because the valuation “does not identify the individual evaluator or

his/her credentials or qualifications”; therefore, “there is no way of knowing if the

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evaluator holds any credentials.” He also argues reliance on the report was

unreasonable because the valuation of the stock was done for tax purposes and

therefore could not serve as a reliable metric for valuation in an equitable distribution

case. Finally, he argues Gerlach could not testify to the contents of the Carta

Valuations report because he lacked the requisite personal knowledge to verify that

the methodology of the report was correctly applied.

In addressing these arguments, we first observe that Husband makes no

contention this evidence was objected to at trial on admissibility grounds. To the

extent that any of his arguments sound in admissibility, we will consider these

arguments only for the purpose of determining whether the trial court’s valuation

was reasonable. See Kabasan v. Kabasan, 257 N.C. App. 436, 457–58 (2018) (“Our

Supreme Court has long held that where a theory argued on appeal was not raised

before the trial court, the law does not permit parties to swap horses between courts

in order to get a better mount in the appellate courts.” (citation omitted)).

Having so established, we do not think Husband’s arguments have

demonstrated an abuse of discretion by the trial court. While Husband discusses at

length the alleged similarities between this case and Stowe, Stowe differs from this

case for at least two salient reasons. First, in Stowe, the trial court improperly relied

upon the article of an individual author whose qualifications were unknown. 272 N.C

App. at 432. Here, by contrast, the report at issue was attributed to an institutional

author whose qualifications as an entity were apparent from the Record:

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Carta Valuations LLC has a team of over 50 valuation

personnel with more than 175 collective years of experience

in valuation. Team members have previous experience at

some of the most well-known valuation shops and audit

firms. Members of the team hold various credentials,

including CFA, CPA, ABV, and CVA.

Second, the abuse of discretion holding in Stowe was predicated not on the identified

instance of misreliance alone, but on the trial court’s reliance on insubstantial

evidence alongside inadequate findings on an issue material to its ultimate ruling

and the improper double-crediting of a marital asset. Id. at 435–36. To apply Stowe

in the way Husband asks this Court to would not only distort the significance of

Stowe’s analysis of the trial court’s misreliance on the article, but also reduce to a

single factor what was, in actuality, a multi-pronged analysis of the trial court’s

reasoning—reasoning that amounted only in sum to an unreasonable valuation and

consequent abuse of discretion. We therefore find this comparison inapposite.

Next, as to the alleged impropriety of using a tax valuation for equitable

distribution purposes, Husband relies primarily on Edwards v. Edwards, 251 N.C.

App. 549 (2017), a case he argues stands for the general proposition that “valuation

of a house prepared for tax assessment is not sufficient evidence to value the house

for distribution purposes[,]” and by analogy, that the tax valuation of the stock in this

case cannot reasonably rely upon their taxable value. In Edwards, we did indeed

observe that, per the practice of our Supreme Court, certain tax records are not

competent to establish property value; namely, that “ad valorem tax records are not

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competent to establish the market value of real property.” Id. at 551 (citations

omitted). But, in that case, we went on to clarify that this was due to the unique

character of ad valorem tax records, not a general holding that documents prepared

for tax purposes are, ipso facto, incompetent to establish market value. Id. (“It is well

understood that it is the custom of the assessors to fix a uniform, rather than an

actual, valuation.” (citation omitted)). Here, there is no argument that the Carta

Valuations report displayed the degree of variance from the true market value of the

Measured stock that ad valorem tax records typically have from the true market

value of real property. In fact, Gerlach—who was stipulated at trial by Husband to

be an expert and testified without objection at trial—testified that the values

reflected in the Carta Valuations report were prepared to reflect the actual market

value of the Measured stock. Husband has, therefore, not established the trial court’s

valuation was unreasonable on this basis.

Finally, as to Husband’s arguments pertaining to Gerlach’s personal

knowledge of the Carta Valuations report, where Husband did not challenge the

admissibility of the testimony, this issue goes to the weight of the evidence—a matter

delegated to the trial court as factfinder, Watson v. Watson, 261 N.C. App. 94, 101

(2018)—and does not, standing alone, establish the trial court unreasonably valuated

the stock at issue. This is especially the case given that, on appeal, Husband has not

pointed to any alternative numerical analysis or different result he would have had

Gerlach, the Carta Valuations report, or the trial court reach; rather, he contests only

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the reasonableness of the valuation and the thoroughness of the trial court’s

factfinding relative to extrinsic standards. But “there is no required method to follow

in assessing the value of the parties’ marital property,” Robertson, 174 N.C. App. at

785; if Husband believed a more thorough or detailed inquiry regarding the value of

the Measured stock would have yielded a more appropriate figure, he was at liberty

to present methodology he felt was more thorough as evidence to the trier of fact.

Given the case- and fact-specific nature of our reasonableness inquiry, see id.,

Husband’s failure to demonstrate any methodological errors occurred at trial leaves

him far from the mark of meeting his burden to show the trial court’s valuation was

unreasonable—let alone so unreasonable as to constitute an abuse of discretion.

Wachovia Bank v. Clean River Corp., 178 N.C. App. 528, 531 (2006) (“To demonstrate

an abuse of discretion, the appellant must show that the trial court’s ruling was

manifestly unsupported by reason, or could not be the product of a reasoned decision.”

(emphasis in original) (citation omitted)). Thus, we affirm the trial court’s equitable

distribution order as to its valuation of the stock.

3. In-Kind Distribution

Husband further argues the trial court abused its discretion in failing to order

in-kind distribution of the Measured stock. Under N.C.G.S. § 50-20(e),

it shall be presumed in every action that an in-kind

distribution of marital or divisible property is equitable.

This presumption may be rebutted by the greater weight of

the evidence, or by evidence that the property is a closely

held business entity or is otherwise not susceptible of

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division in-kind. In any action in which the presumption is

rebutted, the court in lieu of in-kind distribution shall

provide for a distributive award in order to achieve equity

between the parties. The court may provide for a

distributive award to facilitate, effectuate, or supplement a

distribution of marital or divisible property. The court may

provide that any distributive award payable over a period

of time be secured by a lien on specific property.

N.C.G.S. § 50-20(e) (2023); see also Distribution, Black’s Law Dictionary (12th ed.

2024) (defining “distribution in kind” as “[a] transfer of property in its original state,

such as a distribution of land instead of the proceeds of its sale”). We have interpreted

this statute to require that the trial court must presumptively distribute marital

assets in-kind and that, “if the trial court determines that the presumption of an in-

kind distribution has been rebutted, it must make findings of fact and conclusions of

law in support of that determination.” Urciolo v. Urciolo, 166 N.C. App. 504, 507

(2004). Where no such findings are made, we must reverse the trial court’s

determination and remand for proper findings. Id.

Here, the trial court made findings on the differences in the parties’ positions

rebutting the presumption of distribution in-kind:

33. During the marriage [Husband], with co-founder Jack

Vines, started business that is startup business in the

technology business offering cyber insurance and risk

analysis. This business is incorporated in the state of

Delaware as Measured Analytics and Insurance, Inc . . . .

[Husband] owns 15.8177% of Measured Analytics which is

held in fully vested common stock. [Husband] holds

2,160,000 shares of fully vested common stock in Measured

Analytics that are marital.

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34. The headquarters of Measured Analytics is in Utah.

35. [Husband] and Mr. Vines together own 33% of

Measured Analytics. [Husband] is key employee of

Measured Analytics.

....

45. [Wife] is not involved with and has never been involved

with Measured Analytics.

46. [Wife] is not familiar with the business organization or

its structure.

47. [Wife] is not familiar with cyber insurance.

48. If [Wife were] to receive common stock, she would have

limited voting power in Measured.

From these findings of fact, the trial court concluded as a matter of law that,

“[a]ccording to N.C.G.S. [§] 50-20(e) it shall be presumed in every action that an in-

kind distribution of marital or divisible property is equitable, unless rebutted. This

presumption has been rebutted by the greater weight of the evidence.”

In light of these findings, the trial court sufficiently rebutted the presumption

of in-kind distribution with respect to the Measured stock. While Husband makes

further challenges to the characterization of Wife’s involvement with Measured—

specifically, that “[t]here is nothing in the [R]ecord that all the shareholders have a

close relationship or may somehow operate to [Wife]’s detriment”—there is no

meaningful contention that Husband and Wife were similarly situated within, or

familiar with, Measured. Rather, the trial court found, inter alia, that Wife has not

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Opinion of the Court

been involved with Measured, is not familiar with the business structure, and is not

familiar with cyber insurance. While a ruling to the contrary may have been

appropriate, as with the issue of valuation, many of Husband’s arguments pertain to

the characterization, weight, and credibility assigned to the evidence in making the

ultimate distributive determination, which is the purview of the trier of fact. Watson,

261 N.C. App. at 101. Insofar as Husband further argues the trial court’s conclusion

was unsupported because it made no findings Measured was closely held, no such

specific finding is required. See N.C.G.S. § 50-20(e) (2023) (“This presumption may be

rebutted by the greater weight of the evidence, or by evidence that the property is a

closely held business entity or is otherwise not susceptible of division in-kind.”

(emphasis added)).

Husband also argues the trial court mischaracterized the nature of the

Measured stock as “liquid” in Finding of Fact 55(f). Assuming arguendo that the stock

was, as Husband contends, an illiquid asset, this factual error does not, standing

alone, warrant a finding of abuse of discretion. The trial court otherwise explicitly

found that Husband had the ability to pay the distributive award, and he does not

contend the illiquid nature of the asset impeded that ability. As the trial court’s

inquiry into the liquidity of an asset is designed to answer the ultimate question of

whether the paying party has the ability to make the distribution award, see

Comstock v. Comstock, 240 N.C. App. 304, 321 (2015) (holding the trial court’s

distributive award did not reflect an abuse of discretion where “a separate liquid

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Opinion of the Court

asset[] was available as a resource from which the trial court could order a

distributive award”), an unsupported finding as to the liquidity of a specific asset does

not demonstrate an abuse of discretion where findings were otherwise sufficient to

show Husband could pay the distributive award, cf. Squires v. Squires, 178 N.C. App.

251, 267 (2006) (holding the trial court abused its discretion in failing to distribute

assets in-kind where “the [trial] court failed to make the required findings that

defendant had sufficient liquid assets from which to pay the distributive award”).

As the distinctions relied upon by the trial court were supported by the

evidence and the trial court made the required findings, we cannot say the trial court

acted outside its discretion in declining to distribute the Measured stock in-kind.

4. Unequal Distribution

Husband next argues the trial court abused its discretion when it ordered an

unequal distribution of marital assets. In the course of his argument, Husband

challenges the trial court’s findings of fact 6, 55(a), 55(c), 55(d), 55(f), 55(g), 57, 58,

59, 60, and 61. He also challenges conclusion of law 6, arguing the aggregate error

in the findings of fact amounts to an abuse of discretion.

Under N.C.G.S. § 50-20(c),

[t]here shall be an equal division by using net value of

marital property and net value of divisible property unless

the court determines that an equal division is not

equitable. If the court determines that an equal division is

not equitable, the court shall divide the marital property

and divisible property equitably.

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N.C.G.S. § 50-20(c) (2023). “‘When evidence tending to show that an equal division of

marital property would not be equitable is admitted’ in an equitable distribution

proceeding, the trial court has wide discretion to divide the property unequally.”

Barlowe v. Barlowe, 113 N.C. App. 797, 799 (1994) (quoting White v. White, 312 N.C.

770, 777 (1985)), aff’d, 339 N.C. 732 (1995). No specific factor in determining the

propriety of an unequal distribution is determinative, and “we [will] []not say that

the evidence fails to show any rational basis for the distribution” simply because the

trial court “could have weighed the evidence differently . . . .” White, 312 N.C. at 778.

The first of the challenged findings of fact, finding 6, reads as follows in

relevant part: “Plaintiff [(Wife)] has full custody of his adopted son from prior

marriage, Brenner Whipple[.]” Wife is the plaintiff in this case; however, the use of

the male pronoun “his,” together with the uncontroverted status of Brenner Whipple

as residing in the custody of Husband, indicates that the reference to “Plaintiff” in

this excerpt is a clerical error. “Appellate courts do not set aside verdicts and

judgments for technical or harmless error.” Icenhour v. Icenhour, 298 N.C. App. 502,

511 (2025) (citation omitted).

Next, finding 55(a) reads as follows:

N.C.[G.S. §] 50-20(c)(1). The income, property, and

liabilities of each party at the time the division of property

is to become effective. At the time of the hearing in May

2023 [Wife] was earning $180,000.00 and [Husband] was

earning $150,000.00. At the [date of separation] [Wife] was

not earning an income. [Husband] has the ability to earn

more income in the corporate world than the income he was

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Opinion of the Court

earning at Measured. [Husband] has the ability to earn

additional income to pay distributive award to [Wife].

[Husband] testified that he has the ability to pay a

distributive award.

Husband argues this finding is unsupported because evidence of earnings between

the parties at various other points before and during their marriage does not support

a finding of disparity between the parties’ ability to earn more money than the other.

In support of this position, Husband points us to additional information in the Record

he contends establishes there was relative parity between Husband’s and Wife’s

financial positions. But, as the additional information Husband points to

supplements—rather than conflicts with—finding 55(a), this is a question of weight

and emphasis, not sufficiency. See White, 312 N.C. at 778. Husband also argues that

this finding is unsupported with respect to his ability to pay because he testified

during the hearing that paying the distributive award would “hurt [his] current

financial position.” Unfavorable outcomes to Husband’s financial position are not

mutually exclusive with his ability to pay the distributive award and are, generally

speaking, a natural consequence of being required to pay a sum of money. This finding

of fact is supported.

Finding 55(c) reads as follows:

N.C.[G.S. §] 50-20(c)(3). The need of parent with custody of

a child or children of the marriage to occupy or own the

marital residence and to use or own its household effects.

[Wife] has primary physical custody of the minor child

Maya. [Wife] and [Husband] share custody of the minor

child Landon. The marital residence is mixed property and

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Opinion of the Court

shall be distributed to [Husband]. Due to the expectation

that marital residence will be distributed to [Husband], an

unequal distribution of martial and divisible property to

[Wife] is equitable.

Husband argues this finding is unsupported because Husband “had custody of

Brenner full time and custody of Landon half of the time and visitation with Maya on

a temporary basis,” arguing the trial court erred because “both of the parties were in

need of housing for the children and equally in need.” The trial court’s finding that

“[Wife] has primary physical custody of the minor child Maya” is not incompatible

with Husband having temporary visitation, and, as with the previous finding, the fact

that the trial court opted to highlight certain facts in evidence over others does not

render findings as to the highlighted facts unsupported. See id. This finding of fact is

supported.

Finding 55(d) reads as follows:

N.C.[G.S. §] 50-20(c)(5). The expectation of pension,

retirement, or other deferred compensation rights that are

not marital property. [Wife] did not have retirement at the

[date of separation] but had separate retirement totaling

$14,719.55 at trial. [Husband] had separate retirement

totaling $113,205.98 at the [date of separation] which

increased to $126,096.90 as of October 31, 2022. [Husband]

has total of $1,842,262.91 in separate and divisible assets

from retirement, brokerage and IRA accounts. Due to the

expectation of pension, retirement and other deferred

compensation rights of [Husband] at the time of the

division of property, an unequal distribution of marital and

divisible property to [Wife] is equitable.

Husband argues this finding is unsupported because “both parties had little

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Opinion of the Court

retirement as of the date of the trial.” Husband concedes he has “only $126,096.90”

in a retirement account and “does have investments from the sale of his prior business

[] that is his separate property and not subject to division[,]” reflecting the trial court’s

findings as to his separately held assets. This constitutes another challenge to the

trial court’s characterizations and conclusions, not the sufficiency of the evidence. See

id. This finding of fact is supported.

Findings 55(f) and 55(g) read as follows, respectively:

N.C.[G.S. §] 50-20(c)(9). The liquid or nonliquid character

of all marital property and divisible property owned by

[Wife] and [Husband]. [Husband] has access to and shall

be distributed 2,160,000 in stocks from Measured which is

liquid asset. [Husband] shall also be distributed the

nonliquid real property assets. Due to the liquid and

nonliquid distributions, an unequal distribution of marital

and divisible property to [Wife] is equitable.

. . . . The tax consequences of any distribution by

[Husband]. The Court has considered the Federal and

State consequences that [Husband] could incur to pay

distributive award to [Wife]. [Husband] will incur tax

consequences if he chooses to sell stocks or liquidate IRA

accounts to pay distributive award.

Husband argues these findings are unsupported because the Measured stock was not

a liquid asset. As stated previously, we assume arguendo the Measured stock was

illiquid, and any finding of fact predicated on the liquidity of the Measured stock was

erroneous.

Finding 57 reads as follows: “According to N.C.G.S[.] § 50-20, an equal division

of the marital and divisible assets is presumed equitable. This presumption has been

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Opinion of the Court

rebutted and therefore and this Court finds that an unequal division, in favor of

[Wife], of the net value of the marital and divisible assets is equitable.” Husband

correctly argues this finding would be more appropriately labeled a conclusion of law.

See Isom v. Duncan, 279 N.C. App. 171, 188 (2021) (“The labels ‘findings of fact’ and

‘conclusions of law’ employed by the lower tribunal in a written order do not

determine the nature of our standard of review. If the lower tribunal labels as a

finding of fact what is in substance a conclusion of law, we review that ‘finding’ as a

conclusion de novo.” (citation modified)). As a legal conclusion, this statement was

supported by the trial court’s findings of fact. See Pegg, 187 N.C. App. at 358 (“The

standard of review on appeal from a judgment entered after a non-jury trial is

whether there is competent evidence to support the trial court’s findings of fact and

whether the findings support the conclusions of law and ensuing judgment.” (citations

and internal quotation marks omitted)).

Finding 58 reads as follows: “[Husband] has the ability to pay the distributive

award from the assets distributed to him herein. In addition, [Husband] testified that

he has the ability to pay the distributive award if required.” As discussed with respect

to finding 55(d), this finding of fact is supported. To the extent Husband further

argues the finding is erroneous with respect to his ability to pay the award because

doing so would require the liquidation of a separate asset, the trial court was

permitted to take that fact into consideration. Comstock, 240 N.C. App. at 321.

At points throughout his brief, Husband purports to challenge finding 59, yet

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Opinion of the Court

he has offered no substantive discussion of this finding. Any challenge to this finding

is therefore abandoned. N.C. R. App. P. 28(b)(6) (2025) (“Issues . . . in support of which

no reason or argument is stated[] will be taken as abandoned.”).

Finding 60 reads as follows:

The N.C.[G.S. §] 50-20(d) presumption, that an in-kind

distribution of marital or divisible property is equitable,

has been rebutted by greater weight of the evidence, as an

unequal division of the parties’ net marital and divisible

estate is equitable, and an in-kind distribution of the

parties’ assets and debts will not yield an equitable division

of the parties’ net martial divisible estate. That the

presumption that an in-kind division is equitable is also

rebutted by the fact that the most valuable marital asset is

Measured Analytics.

Husband correctly argues this finding would be more appropriately labeled a

conclusion of law. See Isom, 279 N.C. App. at 188. As a legal conclusion, this

statement was supported by the trial court’s findings of fact. See Pegg, 187 N.C. App.

at 358.

Finding 61 reads, in relevant part, as follows:

An unequal division of the marital and divisible assets is

equitable in that there are sufficient distributional factors

to justify awarding Plaintiff more than 50% of the net

marital estate. Plaintiff shall be awarded 60% of the net

marital estate and Defendant shall be awarded 40% of the

net marital estate, not including the Marazzi Trail or

Beach Properties which are distributed equally[.]

Husband argues this finding is unsupported by virtue of the trial court’s purportedly

incorrect valuation of the marital estate. For the reasons discussed above, Husband

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has not shown the trial court abused its discretion in its valuation of the estate.

Finally, conclusion of law 6 reads as follows: “According to N.C.G.S[.] § 50-20,

an equal division of the marital and divisible assets is presumed equitable. This

presumption has been rebutted and this Court finds that an unequal division of the

net value of the marital and divisible assets is equitable.” As discussed above, the

trial court’s findings of fact support this conclusion of law. See id.

As with Husband’s argument pertaining to in-kind distribution, the only error

Husband has demonstrated in the trial court’s determination that an unequal

distribution is equitable is in the characterization of the Measured stock as “liquid.”

As discussed previously, however, the trial court’s inquiry into the liquidity of an

asset is designed to answer the ultimate question of whether the paying party has

the ability to make the distribution award. See Comstock, 240 N.C. App. at 321. Here,

where the trial court’s unequal division of assets and consequent order of a

distributive award to Wife was otherwise based on supported findings that Husband

had the ability to pay the distributive award, we cannot say the unequal distribution

amounted to an abuse of discretion, even assuming the characterization of the

Measured stock as “liquid” was erroneous.

B. Rule 60(b)(5) Motion

Finally, Husband argues the trial court erred in denying his Rule 60(b)(5)

motion because the trial court improperly refused to consider evidence as to the value

of the Measured stock that became available only after the equitable distribution

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Opinion of the Court

hearing. Under Rule 60(b)(5),

[o]n motion and upon such terms as are just, the court may

relieve a party or his legal representative from a final

judgment, order, or proceeding . . . [because] [t]he judgment

has been satisfied, released, or discharged, or a prior

judgment upon which it is based has been reversed or

otherwise vacated, or it is no longer equitable that the

judgment should have prospective application[.]

N.C.G.S. § 1A-1, Rule 60(b)(5) (2023). “Rule 60(b) is an unusual rule, having been

described as ‘a grand reservoir of equitable power.’” Carter v. Clowers, 102 N.C. App.

247, 253 (1991) (quoting Jim Walter Homes, Inc. v. Peartree, 28 N.C. App. 709, 712

(1976)). “The purpose of Rule 60(b) is to strike a proper balance between the

conflicting principles of finality and relief from unjust judgments.” Id. at 254.

Here, although Husband argues the trial court erred in its ruling on his Rule

60(b)(5) motion because it refused to hear evidence pertaining to the valuation of

Measured after the equitable distribution hearing, Husband has made no arguments

pertaining to the admissibility of evidence; rather, he challenges only the ultimate

ruling of the trial court on his Rule 60(b)(5) motion. Notwithstanding the trial court’s

refusal to hear evidence pertaining to Measured’s post-hoc valuation, the trial court

specified on the Record that it was inclined to deny Husband’s Rule 60(b)(5) motion,

even with the understanding that the stock had little to no value at the time of the

hearing on the motion:

[HUSBAND’S TRIAL COUNSEL]: That’s our argument,

Your Honor that it’s highly volatile stock and it’s gone from

thirty-five cents per share to twenty cents per share of –

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Opinion of the Court

less than a month after your order was entered, Your

Honor, it went down to two cents per share.

THE COURT: So at the time the order was entered it was

– I mean at – and that’s just the nature of stock. That’s the

nature of business, but I mean at the time of the trial I had

a value that was given to me. There was nothing that you

guys decided to say, hey, that’s not what we think the value

is. We think – they think the value is seven hundred

thousand, we think the value is three hundred thousand.

Or whatever that number was. But on the day of trial, that

was the number that the Court used, that was the number

that was presented, that was not disputed. Or when I say

not disputed, that was – there was nothing that was given

to me by [Husband] . . . that would have given the court

any reason to adjust my number as to the value of the

property.

....

[HUSBAND’S TRIAL COUNSEL:] . . . [A]re you allowing

me to put on my evidence of the new value or lack of value

of Measured Analytics, or no? I just want to understand

what I’m being permitted to put on evidence today[.]

THE COURT: No. Their Motion In Limine is going to be

granted.

The trial court also made clear it accounted for the stock’s volatility when

determining the allocation of assets during the equitable distribution hearing.

While perhaps an unfortunate result with the benefit of retrospect, the trial

court clarified its position that its initial distribution took the volatility of Measured

into account. It also clarified that, given the “nature of stock[,]” it would not be

inclined to grant a Rule 60(b)(5) motion regardless of the post-hoc valuation of

Measured. We cannot say the trial court’s reasoning, even presented as categorical,

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Opinion of the Court

constituted an abuse of discretion when the trial court considered market volatility

in determining the distribution of marital assets. See Davis, 360 N.C. at 523.

IV. Conclusion

Husband has not shown an abuse of discretion by the trial court in its valuation

of marital property, division of marital property, distribution of marital property, or

denial of his Rule 60(b)(5) motion. We therefore affirm the trial court in full.

AFFIRMED.

Judges COLLINS and MURRY concur.

Report per Rule 30(e).

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