Wheeler v. Wheeler

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA 25-376

Filed 4 March 2026

Onslow County, No. 21CVD002254-660

CRAWFORD WHEELER, Plaintiff,

v.

KIYOKA WHEELER, Defendant.

Appeal by Plaintiff from Order entered 16 August 2024 by Judge William P.

Shanahan, III, in Onslow County District Court. Heard in the Court of Appeals 16

October 2025.

Hayes Law Offices, PLLC, by Mark L. Hayes, for Plaintiff-Appellant.

No brief filed by Defendant-Appellee.

HAMPSON, Judge.

Factual and Procedural Background

Crawford Wheeler (Plaintiff) appeals from an Equitable Distribution Order

awarding an unequal division of marital property to his ex-wife Kiyoka Wheeler

(Defendant). The Record before us tends to reflect the following:

Plaintiff had a thirty-year career in the military. Defendant is from Japan. The

parties met in Japan, married there in February 2005, and later moved to North

Carolina. Plaintiff retired from the military in 2009.

The parties separated in July 2014. Plaintiff filed a Complaint for Absolute

WHEELER V. WHEELER

Opinion of the Court

Divorce on 29 June 2021. Defendant filed an Answer and Counterclaim on 1

September 2021. In the Counterclaim, Defendant stated, “on June 13, 2015[,] the

parties entered into a Separation Agreement[.]” She attached a copy of the Separation

Agreement as an exhibit. Among other provisions, the Separation Agreement

required Plaintiff to pay Defendant $1,000 per month in spousal support. Defendant

requested the Separation Agreement be incorporated into the divorce judgment.

Defendant filed an Amended Counterclaim on 16 September 2021. In this

pleading, Defendant described the action as one for “absolute divorce, post separation

support, alimony[, and] equitable distribution of the marital property[.]” Defendant

sought an unequal division of the marital estate, with “a greater majority of the

assets” going to her. Defendant’s Amended Counterclaim departed from her first

responsive pleading in two pertinent ways: it did not reference the Separation

Agreement or attach it as an exhibit.

Plaintiff made a motion to sever the issue of Absolute Divorce, which the trial

court allowed. The trial court entered a Judgment of Absolute Divorce on 27

September 2021; the Judgment clarified that “all other matters pending in this action

shall remain open for a court to determine at a separate date.”

On 29 March 2023, the trial court entered an order requiring Plaintiff to pay

Defendant $614 per month in spousal support and the “marital share” of his monthly

military retirement pay. The issue of spousal support and military retirement pay

arrears was held open for future orders.

-2-

WHEELER V. WHEELER

Opinion of the Court

The trial court held a bench trial on the Equitable Distribution and Alimony

claims on 25 April 2024. Plaintiff introduced the Separation Agreement into evidence

without objection. Plaintiff acknowledged the document was missing a notarized page

containing Defendant’s signature, as is required by statute.1 Plaintiff testified there

once “was [a] second page” containing Defendant’s notarized signature. Plaintiff

asserted the document was “still a valid contract” even without the missing page. In

an opening argument, defense counsel referred to the Separation Agreement as “void

because of the fact it was not notarized.” During cross-examination, defense counsel

asked Plaintiff if the Separation Agreement had required him to “pay [Defendant]

$1,000 per month” in spousal support, which Plaintiff confirmed. At closing, defense

counsel asked the trial court to “consider the fact that [the parties] did have [a

separation] agreement[,]” but asserted it “wasn’t . . . binding.”2

Defendant testified Plaintiff abused alcohol in the years leading up to their

separation, had been verbally and physically abusive, and had made threats to kill

her. Plaintiff disputed Defendant’s testimony alleging alcohol abuse, testifying he

1 To be “legal, valid, and binding,” a separation agreement “must be in writing and

acknowledged by both parties before a certifying officer[.]” N.C. Gen. Stat. § 52-10.1 (2025). Notaries

public are qualified certifying officers. Id. § 52-10(b).

2 Defense counsel also claimed at closing that the Separation Agreement’s non-binding status

had “already been determined.” This appears to have been a suggestion that a prior trial court had

determined the Separation Agreement was non-binding. However, at this trial, no evidence was

introduced of any prior trial court finding the Separation Agreement invalid. Nor is there any such

evidence in the Record. Additionally, “it is axiomatic that the arguments of counsel are not evidence.”

Blue v. Bhiro, 381 N.C. 1, 6, 871 S.E.2d 691, 695 (2022) (citation and quotation marks omitted). Thus,

we do not consider defense counsel’s assertions about the Separation Agreement during opening or

closing arguments as evidence.

-3-

WHEELER V. WHEELER

Opinion of the Court

drank alcohol “minimally.” Plaintiff also denied being abusive to Defendant during

their marriage and stated he had never threatened to kill her.

The trial court entered its Order on Equitable Distribution and Alimony on 16

August 2024. The trial court made Findings of Fact regarding the assets and debts

the parties had “jointly identified . . . as property for equitable distribution[.]” It did

not make a Finding addressing the validity of the parties’ alleged Separation

Agreement.

After tallying the assets, the trial court found: (1) $252,018 of the marital

estate was in Plaintiff’s possession; (2) $31,410 of the marital estate was in

Defendant’s possession; and thus (3) “a cash distributive award of $110,304 from

Plaintiff to Defendant would result in an equal distribution of marital property.”

However, the trial court found “[a]n unequal distribution in favor of Defendant

is equitable based on the following factors:”

a. 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.

i. [Defendant] lost her Social Security benefits in her

home country of Japan.

ii. [Plaintiff] has income from Veteran’s Affairs Disability,

Social Security, and rental income from his home in

California.

iii. Plaintiff’s rental income from the California home is

artificially low given the lack of increases over such a

long period of time.

iv. Plaintiff has a large separate property estate value

because of his ownership of the California home.

-4-

WHEELER V. WHEELER

Opinion of the Court

b. N.C.G.S 50-20(c)(3): The duration of the marriage and the age

and physical and mental health of both parties.

i. The parties had a 9-year marriage. Plaintiff had health

problems throughout the marriage that have worsened

since the date of separation and said health problems

are in part due to excessive alcohol use.

c. N.C.G.S 50-20(c)(7): Any direct or indirect contribution made

by one spouse to help educate or develop the career potential

of the other spouse.

i. [Defendant’s] role in the marriage caused her to forgo

developing job skills and work history, which limits her

earning potential moving forward.

d. N.C.G.S 50-20(c)(12): Any other factor which the court finds to

be just and proper.

i. Plaintiff’s excessive alcohol use and Domestic Violence,

including taking [Defendant’s] cards, ID, and passport

as well as [Plaintiff’s] threat to kill [Defendant] during

the marriage.

The trial court concluded, as a matter of law, “an unequal distribution in the

Defendant’s favor . . . is equitable.” It then ordered Plaintiff to pay Defendant a “cash

distributive award” of $250,000 within thirty days.3

Additionally, in a section of the Decree titled “Retirement Benefits,” the trial

court stated Defendant received military retirement pay. In a pertinent part of this

3 The trial court also resolved Defendant’s alimony claim by ordering Plaintiff to pay $21,632

in spousal support arrears within thirty days and provided that once this payment was made,

Plaintiff’s “post separation support payments” would be terminated. The trial court also ordered

Plaintiff to pay Defendant’s attorney fees. The alimony and attorney fees issues are not before us in

this appeal.

-5-

WHEELER V. WHEELER

Opinion of the Court

section, the trial court ordered: “Plaintiff shall maintain Survivor Benefit Plan

Coverage with Defendant as the beneficiary of said coverage.”

Plaintiff provided written Notice of Appeal on 6 September 2024.

Issues

The issues on appeal are whether the trial court: (I) erred by failing to make a

Finding of Fact regarding the validity of the alleged Separation Agreement; (II) erred

in its consideration of statutory distributional factors in determining an unequal

division of marital property was equitable; and (III) erred by ordering Plaintiff to

maintain Survivor Benefit Plan Coverage with Defendant as the beneficiary.

Analysis

I. Finding on Separation Agreement

Plaintiff first argues the trial court erred by failing to make a finding about the

validity of the parties’ alleged Separation Agreement. Plaintiff contends the alleged

Separation Agreement raised an issue of ultimate fact on which the trial court was

required to make a finding, because if the document were found to be valid, it would

be “a bar to [Defendant’s] equitable distribution claim.” We disagree.

Under our Rules of Appellate Procedure, “[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) (2025). “It is well-established that a contention not raised and argued

-6-

WHEELER V. WHEELER

Opinion of the Court

in the trial court may not be raised and argued for the first time in the appellate

court.” Smallwood v. Smallwood, 227 N.C. App. 319, 331, 742 S.E.2d 814, 822 (2013)

(citation and quotation marks omitted). The purpose of Rule 10(a)(1) “is to require a

party to call the [trial] court’s attention to a matter upon which [the party] wants a

ruling before [the party] can assign error to the matter on appeal.” Kaylor v. Kaylor,

296 N.C. App. 80, 88, 907 S.E.2d 758, 765 (2024) (citation and quotation marks

omitted). 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].’ ” State v.

Sharpe, 344 N.C. 190, 194-95, 473 S.E.2d 3, 5 (1996) (quoting Weil v. Herring, 207

N.C. 6, 10, 175 S.E. 836, 838 (1934)) (other citations omitted).

Additionally, where, as here, a trial court sits without a jury, it must “find the

facts specially and state separately its conclusions of law[.]” N.C. Gen. Stat. § 1A-1,

Rule 52(a)(1) (2025). “There are two kinds of facts: . . . . Ultimate facts are the final

facts required to establish the plaintiff’s cause of action or the defendant’s defense;

and evidentiary facts are those subsidiary facts required to prove the ultimate facts.”

Woodard v. Mordecai, 234 N.C. 463, 470, 67 S.E.2d 639, 644 (1951) (citations

omitted).

Rule 52(a)(1) does not require the trial court to recite all of the

evidentiary facts; it is required only to find the ultimate facts, i.e.,

those specific material facts which are determinative of the

questions involved in the action and from which an appellate

court can determine whether the findings are supported by the

-7-

WHEELER V. WHEELER

Opinion of the Court

evidence and, in turn, support the conclusions of law reached by

the trial court.

Mann Contractors, Inc. v. Flair with Goldsmith Consultants-II, Inc., 135 N.C. App.

772, 774, 522 S.E.2d 118, 120-21 (1999) (citing Farmers Bank v. Brown Distribs., Inc.,

307 N.C. 342, 298 S.E.2d 357 (1983)).

In the instant case, Plaintiff argues the trial court was required to make a

finding on the validity of the alleged Separation Agreement because it raised an issue

of ultimate fact. Plaintiff accurately states a valid separation agreement can serve as

a bar to an equitable distribution claim. Hagler v. Hagler, 319 N.C. 287, 295, 354

S.E.2d 228, 234-35 (1987). But in the proceeding below, Plaintiff never asserted a

theory that the alleged Separation Agreement barred Defendant’s equitable

distribution claim. Plaintiff’s pleadings did not mention the alleged Separation

Agreement, much less raise it as a defense.4 To the contrary, Plaintiff’s Reply

admitted key allegations in Defendant’s Amended Counterclaim concerning equitable

distribution. Namely, Plaintiff admitted: (1) the parties acquired during the marriage

4 In a related argument, Plaintiff contends “[g]enerally, the invocation of a separation

agreement to defeat an equitable distribution claim is an affirmative defense which must be pled,” but

even when the defense is not pled, it may be tried by express or implied consent. However, Plaintiff

cites no authorities that support this assertion.

The cases Plaintiff cites to suggest the issue may have been tried by consent are inapposite.

See Miller v. Talton, 112 N.C. App. 484, 487, 435 S.E.2d 793, 796-97 (1993) (affirmative defense of

statute of limitations tried by consent). Indeed, in Howell v. Landry, this Court held unpled affirmative

defenses of duress and undue influence were tried by consent where the trial court determined those

issues as part of its ruling without objection. 96 N.C. App. 516, 526, 386 S.E.2d 610, 616 (1989). On

the other hand, the Court held the affirmative defenses of unconscionability, fraud, and inadequate

disclosure were neither pled nor litigated, and thus were not properly raised on appeal. Id. (citation

omitted). Here, no party sought affirmative relief under the Separation Agreement, and the trial court

did not make any determination on the validity of the Separation Agreement.

-8-

WHEELER V. WHEELER

Opinion of the Court

marital and divisible property subject to equitable distribution under N.C. Gen. Stat.

§ 50-20(b); and (2) “the circumstances of this case and the respective parties . . .

warrant that an unequal division of marital property is equitable.” Furthermore, at

trial, Plaintiff did not contend the alleged Separation Agreement barred Defendant’s

equitable distribution claim. Nor did Plaintiff ask the trial court to rule on this issue.

In fact, Plaintiff acknowledged the Separation Agreement exhibit he introduced was

missing a notarized page containing Defendant’s signature. Plaintiff confirmed he

understood the absence of this page meant the document “didn’t meet the statutory

definition of a separation agreement[.]”

Thus, because Plaintiff did not raise the alleged Separation Agreement as a

defense to Defendant’s equitable distribution claim in his pleadings or his arguments

and evidence at trial, the document did not raise an issue of ultimate fact “required

to establish [his] defense” about which the trial court was required to make a finding.

See Woodard, 234 N.C. at 470, 67 S.E.2d at 644. Therefore, because Plaintiff did not

request a ruling from the trial court on this issue pursuant to N.C. R. App. P. 10(a)(1),

this argument is not preserved for our review. Consequently, this argument is

dismissed.

II. Equitable Distribution

Plaintiff next argues the trial court erred in its application of the statutory

distributional factors in determining an unequal division of marital property in favor

of Defendant was equitable.

-9-

WHEELER V. WHEELER

Opinion of the Court

N.C. Gen. Stat. § 50-20 governs the distribution of marital and divisible

property upon divorce. “Equitable distribution is a three-step process requiring the

trial court to (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.”

Kaylor, 296 N.C. App. at 82-83, 907 S.E.2d at 761 (citations and quotation marks

omitted).

“An equal division of marital property is equitable unless, after considering the

factors listed in [N.C.G.S.] § 50-20(c) that were raised by the evidence, the trial court

finds that an equal division of marital property would not be equitable under the

circumstances.” Id. at 83, 907 S.E.2d at 761 (citing Truesdale v. Truesdale, 89 N.C.

App. 445, 450, 366 S.E.2d 512, 516 (1988)).

If the trial court so finds that an equal division is not equitable,

it must make specific findings of fact setting forth the reasons for

an unequal division. The trial court need not make exhaustive

findings of the evidentiary facts, but must include the ultimate

facts considered. The trial court has discretion in determining

how much weight to accord to each factor, and a single factor may

be sufficient to support an unequal distribution[.]

Id. at 83, 907 S.E.2d at 761-62 (citations and quotation marks omitted).

Here, Plaintiff argues the trial court improperly considered factors related to

marital fault and misconduct in deciding to order an unequal division of marital

property in Defendant’s favor. We agree.

In determining whether an unequal division of marital property is equitable,

- 10 -

WHEELER V. WHEELER

Opinion of the Court

the trial court “shall consider”5 the twelve distributional factors listed in N.C. Gen.

Stat. § 50-20(c)(1)-(12). The twelfth factor authorizes consideration of “[a]ny other

factor that the [trial] court finds just and proper.” N.C. Gen. Stat. § 50-20(c)(12)

(2025).

In Smith v. Smith, our Supreme Court interpreted the Section 50-20(c)(12)

catch-all factor through the lens of the statute’s eleven enumerated factors, all of

which “concern the economy of the marriage, i.e., the source, availability, and use by

a wife and husband of economic resources during the course of their marriage.” 314

N.C. 80, 86, 332 S.E.2d 682, 686 (1985) (footnote omitted); see, e.g., N.C. Gen. Stat. §

50-20(c)(1) (2025) (the trial court shall consider “[t]he income, property, and liabilities

of each party at the time the division of property is to become effective.”). In keeping

with the economic focus of the enumerated factors, the Court concluded that “under

[Section] 50-20(c)(12), the only other considerations which are ‘just and proper’ . . .

are those which are relevant to the marital economy.” Smith, 314 N.C. at 87, 332

S.E.2d at 687. Therefore, the Court “h[e]ld that marital fault or misconduct of the

parties which is not related to the economic condition of the marriage is not germane

to a division of marital property under [Section] 50-20(c) and should not be

considered” by the trial court. Id. (citations omitted). In other words, “[m]arital fault,

5 While Section 50-20(c) requires consideration of all twelve distributional factors, the trial

court “must only make findings concerning those factors for which evidence was presented.” Tucker v.

Miller, 113 N.C. App. 785, 789, 440 S.E.2d 315, 318 (1994) (citation omitted).

- 11 -

WHEELER V. WHEELER

Opinion of the Court

without economic consequences, is not properly considered as a distributional factor.”

Fountain v. Fountain, 148 N.C. App. 329, 341, 559 S.E.2d 25, 34 (2002) (citing Smith,

314 N.C. at 87, 331 S.E.2d at 687).

In the case sub judice, the trial court, expressly citing Section 50-20(c)(12),

stated the following in Finding 21(d): “Plaintiff’s excessive alcohol use and Domestic

Violence, including taking [Defendant’s] cards, ID, and passport as well as

[Plaintiff’s] threat to kill [Defendant] during the marriage.” Finding 21(d) is clearly

improper under Smith v. Smith; alcohol abuse, domestic violence, death threats, and

taking a spouse’s identity documents are examples of marital misconduct that are

“not related to the economic condition of the marriage.” 314 N.C. at 87, 332 S.E.2d at

687. Therefore, because this information is “not germane” to the division of marital

property under Section 50-20(c), the trial court erred by considering it. See id.

The trial court made three other Findings6 in determining “an unequal division

in favor of Defendant is equitable[.]” However, on appellate review, “we cannot

determine the weight assigned by the trial court . . . [to the] inappropriate

distributional factors” stated in Finding 21(d). Fountain, 148 N.C. App. at 342, 559

S.E.2d at 35 (citation omitted). Therefore, we must vacate the Order and remand this

case to the trial court “for a reassessment of its decision to order an unequal division

6 Plaintiff also challenges portions of Findings 21(a), 21(b), and 21(c). Plaintiff argues these

Findings are not supported by competent evidence. We disagree. Upon careful review of the Record,

we conclude the challenged Findings are supported by competent evidence. Therefore, we do not

address Plaintiff’s challenges to Findings 21(a), 21(b), and 21(c).

- 12 -

WHEELER V. WHEELER

Opinion of the Court

without considering the improper factors.” Id. (citing Becker v. Becker, 127 N.C. App.

409, 412, 489 S.E.2d 909, 912 (1997)).

III. Survivor Benefit Plan

In his final argument, Plaintiff asserts the trial court erred by ordering him to

“maintain Survivor Benefit Plan Coverage with Defendant as the beneficiary of said

coverage.”

This Court has described the Survivor Benefit Plan (SBP) as

a plan, managed by the [Department of] Defense Finance and

Accounting Service (“DFAS”), available to eligible military

retirees whereby some retirement pay is withheld monthly to

participate in a plan to provide a surviving spouse, former spouse,

or other designate, with monthly benefits upon the death of the

participating serviceperson.

Ellison v. Ellison, 242 N.C. App. 386, 387, 776 S.E.2d 522, 523-24 (2015). See also 10

U.S.C. § § 1448-1455 (statutory provisions related to SBP).

Plaintiff first contends no evidence about SBP was introduced at trial, and

therefore the trial court had “no evidentiary basis” on which to classify SBP as marital

property or order Plaintiff to maintain SBP with Defendant as the beneficiary. We

disagree. There is evidence in the Record on Appeal supporting the existence of SBP

coverage as part of Plaintiff’s overall military retirement benefits.

The Record contains a copy of Plaintiff’s military “Retiree Account Statement,”

which lists an effective date of 23 January 2023 (Retirement Statement). The

Retirement Statement references “SURVIVOR BENEFIT PLAN (SBP) COVERAGE”

- 13 -

WHEELER V. WHEELER

Opinion of the Court

and indicates the coverage type as “SPOUSE ONLY.” A sum of $63.49 for “SBP

COSTS” appears to have been deducted from Plaintiff’s gross retirement pay. In a

separate box, labeled “ARREARS OF PAY BENEFICIARY INFORMATION,” the

Retirement Statement lists “WHEELER, KIYOKA” (Defendant) as the sole

beneficiary, and Defendant’s relationship to Plaintiff as “WIFE.” Further, the

Retirement Statement was introduced by defense counsel as “Defendant’s Exhibit

17.”7 Defense counsel cross-examined Plaintiff about Exhibit 17, though he was not

questioned about its references to SBP, and gave no testimony about SBP. Thus, the

Record tends to show that as of January 2023, Plaintiff paid for SBP coverage and

Defendant was the beneficiary. Therefore, we cannot agree with Plaintiff’s claim that

the Record “is devoid of any reference” to SBP.

Next, we consider whether the trial court erred by classifying and distributing

SBP to Defendant as marital property. “Equitable distribution is a three-step process

requiring the trial court to (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.” Kaylor, 296 N.C. App. at 83, 907 S.E.2d at 761 (citations and quotation

marks omitted). As relevant here, the duty to classify requires the trial court to

7 Defense counsel later moved to introduce “Defendant’s Exhibits 1 through 19,” which would

include the Retirement Statement as Exhibit 17. Plaintiff’s counsel objected on the basis he had “not

read all of [Defendant’s exhibits]” and asked the trial court to “keep[ ] it to what the evidence was

presented today.” The trial court stated “[i]t’s admitted in terms of the documents supporting the

testimony today.” Because Exhibit 17 supported testimony at trial, we consider it as having been

admitted into evidence.

- 14 -

WHEELER V. WHEELER

Opinion of the Court

“ascertain upon appropriate findings of fact, what is marital property[.]” Willis v.

Willis, 86 N.C. App. 546, 550, 358 S.E.2d 571, 573 (1987) (citation omitted). Parties

may stipulate to the classification of property. Zurofsky v. Shaffer, 236 N.C. App. 219,

236, 763 S.E.2d 755, 765 (2014) (citation omitted).

Here, the trial court’s Order stated the parties had stipulated that a “marital

portion” of Plaintiff’s “military pension or retired pay . . . is subject to marital property

division.” The trial court therefore found “Defendant is entitled to a share of

Plaintiff’s military retirement benefits, as set out in the Decree below.” In its Decree,

the trial court stated “Plaintiff’s military retired pay constitutes marital property to

the extent it coincided with the marriage and shall be divided as follows: . . . . Plaintiff

shall maintain Survivor Benefit Plan Coverage with Defendant as the beneficiary of

said coverage.”

At trial, neither party specifically raised the status of SBP for the purpose of

classification. In particular, we observe that Plaintiff did not even mention SBP at

trial—much less challenge its status as distributable marital property, as he now

does on appeal. Absent specific arguments by the parties, the trial court appears to

have analyzed SBP using the only evidence it had: Plaintiff’s Retirement Statement.

The Retirement Statement indicates that as of January 2023, money was being

deducted from Plaintiff’s gross military retirement pay to cover the cost of “Spouse

Only” SBP coverage. The trial court, following the parties’ stipulation to classifying

Plaintiff’s military retirement benefits as marital property, found “Defendant is

- 15 -

WHEELER V. WHEELER

Opinion of the Court

entitled to a share of Plaintiff’s military retirement benefits[.]” Finally, in its Decree,

the trial court ordered Plaintiff to maintain SBP coverage with Defendant as the

beneficiary. Thus, we cannot say the trial court, based on the stipulations and

evidence before it, exceeded its authority by classifying SBP as marital property and

ordering Plaintiff to maintain it with Defendant as the beneficiary.

The remaining question is whether this Court should reach the issue of how

SBP—a federally administered benefit for military veterans—should interact with

the North Carolina equitable distribution statute. Our appellate courts have not yet

addressed this issue. In his brief, Plaintiff points us to Ellison v. Ellison, where this

Court observed, “[i]t is unclear that SBP benefits are allocated pursuant to equitable

distribution[.]” 242 N.C. App. at 390, 776 S.E.2d at 525. To be clear, this sentence is

dicta. As the Ellison Court “[did] not recognize the present action as one for equitable

distribution,” it did not analyze the question of SBP in the context of equitable

distribution. Id. Plaintiff next claims “no subsequent decision [after Ellison] has

definitively resolved [the] issue” of SBP’s status vis-a-vis equitable distribution. Our

research does not reveal such a case either. But, contrary to Plaintiff’s argument, it

does not follow that this Court should now weigh in on an issue not argued at trial

and barely referenced in the Record with scant briefing. We therefore decline

Plaintiff’s request to conclude the trial court “erred in ordering [Plaintiff] to obtain

- 16 -

WHEELER V. WHEELER

Opinion of the Court

SBP for [Defendant].”8

Instead, on remand, we instruct the trial court to hold a hearing wherein the

parties may present arguments and evidence on the SBP issue. This hearing should

permit arguments regarding the appropriate methods of classification, valuation, and

distribution of SBP, including, but not limited to, the subject of whether SBP should

be considered a component of Plaintiff’s military retirement benefits or as a distinct

asset subject to independent distribution. In its discretion, the trial court may

reconsider whether Plaintiff may be required to “maintain” SBP as part of an

equitable distribution order.

Conclusion

Thus, the trial court erroneously considered improper non-economic factors in

determining an unequal distribution was equitable in this case. Therefore, the trial

court erred in awarding an unequal distribution based on those factors.

Consequently, the trial court’s Order is vacated. Accordingly, for the foregoing

reasons, we vacate the Order and remand this case to the trial court for further

proceedings to reconsider its equitable distribution. In addition, the trial court may

also reconsider the classification, valuation, and distribution of SBP based on

argument and evidence presented by the parties.

8 We note this assertion in Plaintiff’s brief misstates the contents of the Order. The trial court

ordered Plaintiff to “maintain” SBP, not to “obtain” it.

- 17 -

WHEELER V. WHEELER

Opinion of the Court

VACATED AND REMANDED.

Judges CARPENTER and FREEMAN concur.

- 18 -