An unpublished opinion of the North Carolina Court of Appeals does not constitute 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

NO. COA13-1347

NORTH CAROLINA COURT OF APPEALS

Filed: 7 October 2014

KIMBERLY ANN FLEMING,

Plaintiff,

v. Gaston County

No. 07 CVD 4408

DOUGLAS WADE FLEMING,

Defendant.

Appeal by plaintiff from order entered 4 June 2013 by Judge

James A. Jackson in Gaston County District Court. Heard in the 

Court of Appeals 9 April 2014.

Church Watson Law, PLLC, by Seth A. Glazer and Kary C. 

Watson, for plaintiff-appellant.

Arthurs & Foltz, LLP, by Douglas P. Arthurs and Joy M. 

Chappell, for defendant-appellee.

DAVIS, Judge.

Kimberly Ann Fleming (“Plaintiff”) appeals from the trial 

court’s child custody, child support, equitable distribution, 

and alimony order. On appeal, she argues that the trial court 

erred by (1) failing to comply with the requirements of N.C. 

Gen. Stat. § 50-20; (2) failing to appropriately calculate the 

income of Douglas Wade Fleming (“Defendant”) for purposes of 
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determining his child support obligation; and (3) failing to 

award alimony to her despite finding that she was a dependent 

spouse, Defendant was a supporting spouse, and Defendant had 

engaged in marital misconduct. After careful review, we vacate

and remand for further proceedings.

Factual Background

The parties were married on 22 June 2001 and separated on 

12 September 2007, shortly after Plaintiff learned that 

Defendant was involved in an extramarital affair. Plaintiff and 

Defendant subsequently divorced. The parties have two minor 

children together, twin daughters born in 2001.

On 24 September 2007, Plaintiff filed an action against 

Defendant for child custody, child support, post-separation 

support, alimony, and equitable distribution. Defendant filed 

an answer and counterclaims for child custody and equitable 

distribution on 29 November 2007. On 13 December 2007, the 

trial court entered an order requiring Defendant to continue to 

pay the first and second mortgages on the marital home, health 

insurance for the parties, car expenses, taxes, and for 

Plaintiff’s cellular phone service “in lieu of post-separation 

support” to her. A temporary custody order awarding primary
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physical custody of the children to Plaintiff was entered on 25

July 2008.

Defendant owns North Carolina Mohawk Tire Company d/b/a Mr. 

Nobody (“Mr. Nobody”), a tire and automotive business. Prior to 

the parties’ marriage, Defendant acquired an interest in Mr. 

Nobody by purchasing 5 of the outstanding 30 shares of stock in 

the business. During the course of the parties’ marriage,

Defendant acquired the remaining 25 shares of Mr. Nobody using 

marital funds.

Mr. Nobody has two locations, and during their marriage, 

the parties purchased the two parcels of land where the business 

operates. Mr. Nobody pays rent to the parties for the use of 

both properties. Defendant is employed by Mr. Nobody and 

received monthly income from the business throughout the course 

of the marriage. During the marriage, Mr. Nobody paid for

numerous personal expenses of the parties, including the cost of 

their vehicles and the insurance and taxes on those vehicles, 

monthly gas expenses, cell phones for the family, and for 

insurance and taxes relating to both Mr. Nobody locations.

The parties’ respective claims for child custody and

support, equitable distribution, and alimony were heard in 

Gaston County District Court in February 2012. On 4 June 2013, 
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the trial court entered an order (1) giving the parties joint 

legal custody of the minor children and Plaintiff primary 

physical custody; (2) requiring Defendant to make monthly child 

support payments to Plaintiff; (3) ordering Defendant to make a

distributive cash award to Plaintiff; and (4) denying 

Plaintiff’s request for alimony. Plaintiff gave timely notice 

of appeal to this Court.

Analysis

I. Equitable Distribution

Plaintiff’s first argument on appeal is that the trial 

court erred in the equitable distribution portion of its order 

by failing to comply with the statutory requirements set forth 

in N.C. Gen. Stat. § 50-20. Specifically, Plaintiff contends 

the trial court erred by failing to make findings regarding the 

classification or value of numerous items of property before 

distributing them in its order, including the residence at 5034 

Stone Ridge Drive; the Fleetwood Southwind motorhome; the 

parties’ household goods, furniture, furnishings, and personal 

property; the Harley Davidson Sportster; three four-wheelers; a 

dirt bike; and the parties’ bank accounts, retirement accounts, 

investment accounts, and credit card debt. We agree.

Our review of an equitable distribution 

order is limited to determining whether the 
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trial court abused its discretion in 

distributing the parties’ marital property. 

Accordingly, the findings of fact are 

conclusive if they are supported by any 

competent evidence from the record.

However, even applying this generous 

standard of review, there are still 

requirements with which trial courts must 

comply. Under N.C.G.S. § 50-20(c), 

equitable distribution is a three-step 

process; the trial court must (1) determine 

what is marital and divisible property; (2) 

find the net value of the property; and (3) 

make an equitable distribution of the 

property.

Robinson v. Robinson, 210 N.C. App. 319, 322, 707 S.E.2d 785, 

789 (2011) (citations, quotation marks, and brackets omitted). 

Thus, in order to enter a proper equitable distribution 

judgment, the trial court must first “specifically and 

particularly classify and value all assets and debts maintained 

by the parties at the date of separation” and in doing so, “be 

specific and detailed enough to enable a reviewing court to 

determine what was done and its correctness.” Id. at 323, 707 

S.E.2d at 789 (citations, quotation marks, and emphasis 

omitted).

Here, the trial court distributed various property to the 

parties without first classifying or valuing those assets. See

Wirth v. Wirth, 193 N.C. App. 657, 664, 668 S.E.2d 603, 608-09 

(2008) (“A trial court must value all marital and divisible 
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property in order to reasonably determine whether the 

distribution ordered is equitable.” (citation, quotation marks, 

and ellipses omitted)); Cunningham v. Cunningham, 171 N.C. App. 

550, 556, 615 S.E.2d 675, 680 (2005) (“[W]hen no finding is made 

regarding the value of an item of distributable property, a 

trial court’s findings are insufficient even if a determination 

is made with respect to the percentage of a distributable 

property’s value to which each party is entitled.”). By 

distributing certain items of property without classifying or 

valuing them, the trial court also disregarded its 

responsibility to calculate the total net value of the marital 

estate. See Robinson, 210 N.C. App. at 323, 707 S.E.2d at 789-

90 (explaining that failure to make finding as to total net 

value of marital estate renders equitable distribution order 

incomplete).

With regard to the parties’ residence at 5034 Stone Ridge 

Drive, the trial court ordered that the residence be placed on 

the market and sold pursuant to the parties’ stipulation and 

that the net proceeds — after the mortgage and equity line were 

satisfied — be divided equally between the parties. Although 

this Court has recognized “the trial court’s power to order the 

sale of marital assets as part of an equitable distribution,” it 
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has also recognized that the trial court must first value the 

property before distributing it. See Wall v. Wall, 140 N.C. 

App. 303, 307-08, 536 S.E.2d 647, 650 (2000) (holding that trial 

court did not err in ordering sale of marital home because it 

was classified, valued, and then distributed).

Because the trial court’s equitable distribution order 

distributes property to the parties without proper findings as 

to the classification or value of the property, we must vacate 

the equitable distribution order and remand for a new trial so 

that the trial court may “hear arguments and receive evidence 

from both parties . . . in order to address the errors discussed 

above and to properly identify, classify, and value the parties’ 

property as required by statutory law and case law.” Dalgewicz 

v. Dalgewicz, 167 N.C. App. 412, 424, 606 S.E.2d 164, 172 

(2004), see also Robinson, 210 N.C. App. at 326, 707 S.E.2d at 

791.

While Plaintiff also contends that the trial court’s 

distribution of the parties’ property was not equitable because

the trial court made an unequal distribution in favor of 

Defendant without considering the statutorily required factors

set forth in N.C. Gen. Stat. § 50-20(c), she bases this argument 

on the unequal distribution of that property which the trial 
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court actually valued. However, because the trial court failed 

to value much of the parties’ property before distributing it, 

we are unable to determine whether the distribution was, in 

fact, unequal. See Dalgewicz, 167 N.C. App. at 424, 606 S.E.2d 

at 172 (explaining that this Court could not determine whether 

trial court’s allegedly unequal distribution was inequitable 

“[w]ithout the benefit of proper classification, valuation, and 

listing of all the property owned by the parties”). Therefore, 

we vacate the equitable distribution order and remand for a new 

hearing so that the trial court may hear evidence and enter an 

order properly classifying, valuing, and distributing the 

parties’ property. 1

II. Child Support

Plaintiff’s second argument on appeal is that the trial 

court erred in its calculation of Defendant’s income for 

purposes of determining his child support obligation. The North 

Carolina Child Support Guidelines (“the Guidelines”) “apply as a 

rebuttable presumption in all legal proceedings involving the 

 

1 We note our concern as to the 14-month delay between the 

conclusion of the equitable distribution hearing and the entry 

of the trial court’s equitable distribution order and “strongly 

advise against lower courts allowing such a significant lapse of 

time to occur between the hearing date and the entry of [the 

equitable distribution] order.” Wright v. Wright, ___ N.C. App. 

___, ___, 730 S.E.2d 218, 222 (2012).
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child support obligation of a parent . . . .” Holland v. 

Holland, 169 N.C. App. 564, 567, 610 S.E.2d 231, 234 (2005) 

(citation and quotation marks omitted). This Court reviews a 

trial court’s child support order for abuse of discretion. Id. 

“To support a reversal, an appellant must show that the trial 

court’s actions were manifestly unsupported by reason.” Head v. 

Mosier, 197 N.C. App. 328, 332, 677 S.E.2d 191, 195 (2009)

(citation and quotation marks omitted).

Pursuant to the Guidelines, “[c]hild support calculations . 

. . are based on the parents’ current incomes at the time the 

order is entered.” Form AOC-A-162, Rev. 1/11. With regard to a 

parent’s income from self-employment or operation of a business, 

the Guidelines provide, in pertinent part, that

[g]ross income from self-employment, rent, 

royalties, proprietorship of a business, or 

joint ownership of a partnership or closely 

held corporation, is defined as gross 

receipts minus ordinary and necessary 

expenses required for self-employment or 

business operation. . . . In general, income 

and expenses from self-employment or 

operation of a business should be carefully 

reviewed to determine an appropriate level 

of gross income available to the parent to 

satisfy a child support obligation. In most 

cases, this amount will differ from a 

determination of business income for tax 

purposes.

Expense reimbursements or in-kind 

payments (for example, use of a company car, 
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free housing, or reimbursed meals) received 

by a parent in the course of employment, 

self-employment, or operation of a business 

are counted as income if they are 

significant and reduce personal living 

expenses.

Id.

Here, the trial court made the following findings regarding 

Defendant’s income:

18. Defendant is employed by North Carolina 

Mohawk Tire Co., Inc., of which he is the 

sole owner, and Defendant’s gross monthly 

income is Seven Thousand Ninety-Seven 

Dollars and Sixty Cents ($7,097.60), which 

excludes various items paid on Defendant’s 

behalf by the business which augment his 

gross monthly income.

19. Defendant’s federal income tax returns 

show the following income (2011 income tax 

returns were not completed as of trial):

a. In 2008, Defendant’s total taxable 

income was $139,013.00

b. In 2009, Defendant’s total taxable 

income was $166,020.00

c. In 2010, Defendant’s total taxable 

income was $172,378.00.

The trial court then calculated Defendant’s child support 

obligation under the Child Support Guidelines by utilizing the 

sum of $7,097.60 as his gross monthly income and ordered him to 

make payments of $1,036.00 in child support to Plaintiff per 

month. The sum of $7,097.60 is the figure reported on 
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Defendant’s amended affidavit of financial standing and includes 

$5,416.66 in “wages/salary,” $1,305.94 in income from rent 

payments, and $375.00 in health insurance. Although a party’s 

financial affidavit is competent evidence on which the trial 

court may base its findings regarding that party’s income, 

Parsons v. Parsons, ___ N.C. App. ___, ___, 752 S.E.2d 530, 533 

(2013), we are troubled by the court’s seemingly inconsistent 

findings concerning Defendant’s gross income.

In its findings, the trial court noted Defendant’s taxable 

income as identified by his federal tax returns for the years 

2008, 2009, and 2010 as $139,013.00, $166,020.00, and 

$172,378.00, respectively. The trial court found, however, that 

Defendant’s gross monthly income at the time of trial in 

February of 2012 was $7,097.60 — which converts to an annual 

income of $85,171.20. In determining that Defendant’s monthly 

income was $7,097.60, the trial court did not address the 

sizable difference between Defendant’s past income as shown on 

his individual income tax returns and the substantially lower 

figure it found in its order. See Form AOC-A-162, Rev. 1/11 

(explaining that child support is based on parents’ current 

income, “should be verified through documentation of both 

current and past income,” and that “[d]ocumentation of current 
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income must be supplemented with copies of the most recent tax 

return to provide verification of earnings over a longer 

period”).

Moreover, in its finding determining Defendant’s gross 

monthly income to be $7,097.60, the trial court specified that 

this sum “excludes various items paid on Defendant’s behalf by 

the business which augment his gross monthly income.” As stated 

above, the Guidelines require a trial court to include expense 

reimbursements or in-kind payments that a party receives in the 

course of employment, self-employment, or the operation of a 

business if these payments are “significant and reduce personal 

living expenses.” Id.

Here, while the trial court recognized that Mr. Nobody paid 

for “various items” for Defendant and that such payments 

increased Defendant’s income, it failed to account for that 

increase in its calculation of his income. Thus, given that the 

trial court (1) explicitly stated that its income calculation 

for Defendant excluded payments made by Mr. Nobody that 

augmented his income; and (2) made consecutive findings 

concerning Defendant’s income that showed — without explanation 

— a substantially different income amount, we cannot conclude 

that the trial court properly calculated Defendant’s income 
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pursuant to the Child Support Guidelines. See McFarland v. 

Justus, 113 N.C. App. 107, 109, 437 S.E.2d 668, 670 (1993) 

(“When findings are actually antagonistic, inconsistent or 

contradictory such that the reviewing court cannot safely and 

accurately decide the question, the judgment cannot be 

affirmed.”). As such, we remand for findings regarding 

Defendant’s actual income at the time of the child support 

hearing and for the entry of a child support order using 

Defendant’s actual income. See Holland, 169 N.C. App. at 568, 

610 S.E.2d at 235 (reversing and remanding child support order 

where findings were insufficient to support trial court’s 

calculation of party’s income).2

III. Denial of Alimony

 

2 We note that Defendant attempts to argue in his brief that the 

trial court erred in ordering him to pay one-half of the 

children’s extracurricular activity expenses. However, 

Defendant’s argument is not properly before this Court. See 

N.C.R. App. P. 10(c) (explaining that where appellee fails to 

cross-appeal, its arguments are limited to “any action or 

omission of the trial court that was properly preserved for 

appellate review and that deprived the appellee of an 

alternative basis in law for supporting the judgment, order, or 

other determination from which appeal has been taken”). Thus, 

in order to have properly preserved this issue for appellate 

review, Defendant was required to file a cross-appeal from the 

trial court’s order. Wilson v. Wilson, 214 N.C. App. 541, 546, 

714 S.E.2d 793, 796 (2011).
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Plaintiff’s final argument on appeal is that the trial 

court erred in denying her request for alimony despite making

findings that (1) Plaintiff is a dependent spouse; (2) Defendant 

is a supporting spouse; and (3) Defendant engaged in acts of 

illicit sexual behavior. We agree.

The trial court is authorized to make an award of alimony 

to a dependent spouse “upon a finding that one spouse is a 

dependent spouse, that the other spouse is a supporting spouse, 

and that an award of alimony is equitable after considering all 

relevant factors.” N.C. Gen. Stat. § 50-16.3A(a) (2013). “If 

the court finds that the supporting spouse participated in an 

act of illicit sexual behavior, as defined in G.S. 50-

16.1A(3)a., during the marriage and prior to or on the date of 

separation, then the court shall order that alimony be paid to a

dependent spouse.” Id. (emphasis added). A party’s entitlement 

to alimony is reviewed de novo. Barrett v. Barrett, 140 N.C. 

App. 369, 371, 536 S.E.2d 642, 644 (2000).

Here, the trial court made the following relevant findings 

of fact regarding Plaintiff’s alimony claim:

59. Plaintiff is the “dependent spouse” as 

that term is defined in N.C.G.S. § 50-16.1A, 

is actually substantially dependent on 

Defendant for her maintenance and support 

and is substantially in need of maintenance 

and support from Defendant. Plaintiff has 
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begun to work again, however, and the 

distributive award set forth herein is made 

in contemplation of providing Plaintiff with 

some form of support.

60. Defendant is the “supporting spouse” as 

that term is defined in N.C.G.S. § 50-16.1A, 

is capable of paying the alimony award set 

forth herein and should pay alimony to 

Plaintiff as set forth herein.

61. For the last two years of the parties’ 

marriage, and prior to their separation, 

Defendant had an affair with Traci Toney 

Hanna, to whom Defendant is now married.

62. Defendant’s affair with Traci Toney

Hanna included illicit sexual behavior 

between Defendant and Traci Toney Hanna, as 

defined by N.C.G.S. 50-16.1A(3)(a).

63. Plaintiff did not condone Defendant’s 

sexual intercourse with Traci Toney Hanna.

After making the above findings of fact, the trial court 

entered the following conclusion of law:

17. Despite Defendant’s illicit sexual 

behavior with Traci Toney Hanna, Plaintiff 

has, as of the trial in this cause, received 

a sufficient amount and duration of 

maintenance from Defendant, which includes 

payments of Plaintiff’s housing expenses, 

gasoline, car expenses and health insurance 

and this Court does not award alimony to 

Plaintiff.

By finding that Plaintiff is the dependent spouse, 

Defendant is the supporting spouse, and Defendant engaged in

illicit sexual behavior yet nevertheless denying Plaintiff 
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alimony, the trial court disregarded the mandate of N.C. Gen. 

Stat. § 50-16.3A(a). See Morningstar Marinas/Eaton Ferry, LLC 

v. Warren Cty., ___ N.C. App. ___, ___, 755 S.E.2d 75, 79 (2014) 

(“Our appellate courts have consistently held that the use of 

the word ‘shall’ in a statute indicates what actions are 

required or mandatory.”).

In denying Plaintiff’s claim for alimony, the trial court 

explained its belief that she had “received a sufficient amount 

and duration of maintenance from Defendant which includes 

payments of Plaintiff’s housing expenses, gasoline, car

expenses, and health insurance . . . .” While such a finding 

could warrant a conclusion that Plaintiff was not entitled to 

retroactive alimony, the trial court’s determination that 

Plaintiff is a dependent spouse — by definition — means that at 

the time of trial, Plaintiff continued to be “actually 

substantially dependent upon [Defendant] for . . . her 

maintenance and support or . . . substantially in need of 

maintenance and support from [Defendant].” N.C. Gen. Stat. § 

50-16.1A(2) (2013). Because the trial court also concluded 

that Defendant was a supporting spouse who had engaged in 

illicit sexual behavior, it was required to award alimony to 

Plaintiff and make specific findings of fact setting forth “the 
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reasons for its amount, duration, and manner of payment.” See 

N.C. Gen. Stat. § 50-16.3A(a)-(c). Accordingly, we must also 

vacate the portion of the 4 June 2013 order concerning alimony

and remand to the trial court so that it may enter an award of 

alimony, supported by the statutorily required findings setting 

out its reasons for the amount, duration, and manner of payment 

of the alimony award.

Conclusion

For the reasons stated above, we vacate the trial court’s 

order and remand for further proceedings consistent with this 

opinion.

VACATED AND REMANDED.

Judges ELMORE and McCULLOUGH concur.

Report per Rule 30(e).