An unpublished opinion of the North Carolina Court of Appeals does not constitute 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. COA14-200

NORTH CAROLINA COURT OF APPEALS

Filed: 2 September 2014

KATHY BELL,

Plaintiff,

v. Wilkes County

No. 10 CVD 1004

RALPH E. BELL,

Defendant.

Appeal by Defendant from judgment entered 20 August 2013 by 

Judge Jeanie R. Houston in Wilkes County District Court. Heard 

in the Court of Appeals 13 August 2014.

Vannoy, Colvard, Triplett & Vannoy, P.L.L.C., by Daniel S. 

Johnson, for Plaintiff.

Charlotte Gail Blake for Defendant.

STEPHENS, Judge.

Procedural and Factual Background

Defendant Ralph E. Bell and Plaintiff Kathy Bell married in 

1980 and separated on 22 May 2010. Their son, Chris Bell, was 

an adult at the time of the separation. Plaintiff initiated 

this action by the filing of a complaint for equitable 

distribution and injunctive relief on 30 July 2010. At the time 
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of their separation, Plaintiff had retired from full-time work, 

but continued to work part time. Plaintiff had a 401(k) 

retirement account. Defendant had become disabled in a workrelated accident in 2008 and received both Social Security 

disability payments and a monthly lifetime retirement benefit 

from his former employer. At about the time of the parties’ 

separation, Defendant had received a workers’ compensation 

payment of just over $10,000. A final settlement of his 

workers’ compensation claim after the parties separated provided 

Defendant an additional $37,500 as well a fund for future 

medical expenses. The parties owned three pieces of real 

property: a house on eleven acres, encumbered by a mortgage 

(“the Driftwood home”); a 5.2 acre tract of land on Baptist Home 

Road, encumbered by an equity line of credit (“the land”); and a 

house on four acres on Baptist Home Road, unencumbered by any 

debt (“the Baptist Home house”). Plaintiff also owned two 

pieces of real property which had been given to her by her 

parents during the parties’ marriage.

On 30 August 2010, the trial court entered an interim 

consent order dividing possession of certain personal property. 

On 30 March 2011, Defendant fired a gun into Plaintiff’s home, 

claiming a delusion that someone was holding Plaintiff and the 
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parties’ son hostage. This event led to mental health 

evaluations of Defendant as well as the filing of criminal 

charges, for which Defendant received a probationary sentence. 

Defendant continued to experience hallucinations and lost the 

ability to care for himself. He allegedly violated his 

probation and was later incarcerated in the North Carolina 

Department of Correction.

1 It also appears that Defendant was 

involuntarily committed for some period of time.

On 28 February 2012, the court entered additional consent 

orders, dividing certain personal and real property without 

assigning value to the property. The court awarded to 

Defendant, inter alia, the Driftwood home, the land, and all of 

his retirement benefits and workers’ compensation settlement and 

to Plaintiff, inter alia, her retirement account and several 

vehicles in her possession, with each party’s award free from 

the claims of the other. The court also ordered the Baptist 

Home house be listed for sale, with each party to pay half of 

the cost required to get the house in marketable condition. The 

 

1 Despite a statement to the contrary in the equitable 

distribution order filed 20 August 2013, the transcript 

indicates that Defendant did not appear at the equitable 

distribution hearing, although his counsel and guardian both 

appeared on his behalf. The transcript of that hearing contains 

at least one reference to Defendant having been recently 

released on probation.
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court stated its intention to use “the proceeds [of the eventual 

sale] to make up [any] difference in the equity owed to either 

party.” 

On 30 March 2012, the court ordered the parties to sell 

approximately three acres of the land on Baptist Home Road to 

raise funds for needed repairs on the Baptist Home house. On 15 

June 2012, the court entered an order finding that Defendant was 

mentally unstable and unable to participate in the equitable 

distribution proceedings. A subsequent court-ordered mental 

health evaluation determined that Defendant was incompetent, and 

the court appointed Timothy B. Joines as guardian of Defendant’s 

estate. 

Joines appeared and testified on Defendant’s behalf at the 

2 April 2013 equitable distribution hearing. At that time, the 

Baptist Home house had not yet been sold, and Plaintiff 

testified at the hearing that the parties had agreed at some 

point to give the Baptist Home house to their son instead. 

Plaintiff introduced in evidence a spreadsheet which listed 

various marital property, including, inter alia, various 

personal property kept by Plaintiff; the Driftwood home; various 

retirement, workers’ compensation, and pension monies; and a 
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list of expenses for which Plaintiff sought partial 

reimbursement including attorney’s fees.

The court entered a final equitable distribution order on 

20 August 2013 which awarded the Baptist Home house to the 

parties’ son. The court ordered that the parties’ other 

personal and real property be classified and divided as set out 

in an attached exhibit. That exhibit was identical to the 

spreadsheet introduced by Plaintiff. Defendant gave timely 

notice of appeal from the final equitable distribution order. 

Discussion

On appeal, Defendant argues that the trial court abused its 

discretion in (1) classifying and distributing property 

according to Plaintiff’s spreadsheet without making its own 

independent findings of fact on conflicting evidence and (2) 

removing the Baptist Home house from the marital estate and 

awarding it to the parties’ son. We affirm in part and vacate 

and remand in part.

I. Standards of review

Equitable distribution is governed by N.C. 

Gen. Stat. § 50-20 [], which requires the 

trial court to conduct a three-step process: 

(1) classify property as being marital, 

divisible, or separate property; (2) 

calculate the net value of the marital and 

divisible property; and (3) distribute 

equitably the marital and divisible 
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property. A trial court’s determination 

that specific property is to be 

characterized as marital, divisible, or 

separate property will not be disturbed on 

appeal if there is competent evidence to 

support the determination. Ultimately, the 

court’s equitable distribution award is 

reviewed for an abuse of discretion and will 

be reversed only upon a showing that it [is] 

so arbitrary that it could not have been the 

result of a reasoned decision.

Brackney v. Brackney, 199 N.C. App. 375, 381, 682 S.E.2d 401, 

405 (2009) (citations and internal quotation marks omitted; 

emphasis added and some alterations in original); see also Riggs 

v. Riggs, 124 N.C. App. 647, 649, 478 S.E.2d 211, 212 (1996) 

(“The trial court’s findings of fact . . . are conclusive if 

supported by any competent evidence. The mere existence of 

conflicting evidence or discrepancies in evidence will not 

justify reversal.”) (citation and internal quotation marks 

omitted; emphasis added), disc. review denied, 345 N.C. 755, 485 

S.E.2d 297 (1997). In addition, “whether to impose sanctions 

and which sanctions to impose under [N.C. Gen. Stat.] § 50-21(e) 

are decisions vested in the trial court and reviewable on appeal 

for abuse of discretion.” Crutchfield v. Crutchfield, 132 N.C. 

App. 193, 195, 511 S.E.2d 31, 34 (1999). 

II. Classification and distribution of certain marital property
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Defendant first argues that the trial court abused its 

discretion in classifying and distributing property according to 

Plaintiff’s spreadsheet without making its own independent 

findings of fact on conflicting evidence. We disagree.

The equitable distribution order includes nine findings of 

fact, including finding of fact 9 which states that “[a]ll of 

the property listed on Exhibit A, attached hereto, is 

incorporated herein by reference. The property listed on 

Exhibit A is classified as listed and divided as stated on 

Exhibit A.” Exhibit A as referenced in the order is identical 

to Plaintiff’s Exhibit A. Defendant contends that the trial 

court abused its discretion because it “simply adopted 

[Plaintiff’s] classifications and valuations without making any 

of its own independent findings, without providing any 

explanation, and without acknowledging that the [trial c]ourt’s 

Exhibit A was Plaintiff’s Exhibit A.” Defendant cites no case 

law in support of his assertion that the trial court’s 

“adoption” of Plaintiff’s classifications and valuations was an 

abuse of discretion, or for his claim that the court was 

required to explain or acknowledge its inclusion of Exhibit A as 

part of the final equitable distribution order. We agree that

[r]ecitations of the testimony of each 

witness do not constitute findings of fact
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by the trial judge, because they do not 

reflect a conscious choice between the 

conflicting versions of the incident in 

question which emerged from all the evidence 

presented. Where there is directly 

conflicting evidence on key issues, it is 

especially crucial that the trial court make 

its own determination as to what pertinent 

facts are actually established by the 

evidence, rather than merely reciting what

the evidence may tend to show. 

Moore v. Moore, 160 N.C. App. 569, 571-72, 587 S.E.2d 74, 75

(2003) (citations and internal quotation marks omitted; emphasis 

in original). However, the equitable distribution order here 

does not “merely recit[e] what the evidence may tend to show.” 

See id. at 572, 587 S.E.2d at 75. Rather, the court found as 

fact that “[t]he property listed on Exhibit A is classified as 

listed and divided as stated on Exhibit A.” This finding of 

fact indicates that the trial court made a “conscious choice” 

that Plaintiff’s evidence regarding the proper valuation and 

classification of the parties’ real and personal property was 

the most credible. See id. at 571-72, 587 S.E.2d at 75. 

After carefully reviewing the transcript of the equitable 

distribution hearing, we are unsurprised that the court adopted 

Plaintiff’s classifications and valuations. Plaintiff testified 

extensively regarding the parties’ real and personal property, 

as well as their sources of income and retirement accounts. In 
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contrast, Joines, the only witness to present evidence on 

Defendant’s behalf, testified only briefly and provided evidence 

on only a few parts of the parties’ marital estate. The court’s 

inclusion of the spreadsheet to list the classification and 

valuation of the listed real and personal property was not an 

abuse of discretion.

Defendant also specifically challenges (1) the 

classification of Defendant’s workers’ compensation settlement, 

(2) attorney’s fees awarded to Plaintiff, (3) valuation of 

Plaintiff’s vehicle, and (4) the omission of the real property 

given to Plaintiff by her parents. We address each sub-argument 

in turn.

A. Defendant’s workers’ compensation settlement

Workers’ compensation awards 

acquired by the injured spouse during the 

marriage and before separation . . . will be 

marital property unless the party claiming 

it to be separate property (i.e., the 

injured spouse) proves by a preponderance of 

the evidence that the award, or some portion 

of it, was intended to compensate him for 

economic loss occurring after the date of 

separation and is therefore his separate 

property. . . . 

In situations where a spouse is injured 

during the marriage and prior to separation,

but does not receive a workers’ compensation 

award until after the date of separation, 

such an award nevertheless constitutes 
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marital property to the extent that the 

award represents compensation for economic 

loss occurring during the marriage and prior 

to separation. In such a case, because the 

award is not acquired during the marriage 

and prior to separation, the non-injured 

spouse will not have the benefit of the 

marital property presumption, and instead 

must, in order to support classification of 

the award as marital, prove by a 

preponderance of the evidence that all or 

some portion of the award is compensation 

for economic loss occurring during the 

marriage and before separation.

Freeman v. Freeman, 107 N.C. App. 644, 654, 421 S.E.2d 623, 628-

29 (1992) (citations omitted; emphasis in original). 

Defendant contends that Plaintiff presented no evidence and 

the trial court made no finding of fact about what portion of 

Defendant’s workers’ compensation settlement was compensation 

for economic loss during the parties’ marriage and before their 

separation. However, our review of the record reveals that 

Plaintiff’s Exhibit 12 at the equitable distribution hearing was 

an “Agreement for Final Compromise Settlement and Release” 

approved by the North Carolina Industrial Commission on 2 August 

2011. That exhibit states, inter alia, that Defendant received 

$10,330.66 during the parties’ marriage and before their 

separation, and thus that award was properly classified as 

marital property. See id. 
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As for the settlement Defendant received after the parties 

separated, Plaintiff’s Exhibit 12 indicates that the Industrial 

Commission had determined that Defendant was no longer disabled 

and thus no longer entitled to ongoing disability benefits as of 

2 September 2008. Defendant’s only evidence regarding the 

workers’ compensation awards was that they were received for

temporary disability. Thus, the uncontradicted evidence was 

that the entirety of the second award was compensation for 

economic loss occurring during the marriage and before 

separation, and in turn, that property was properly classified 

as marital property. See id. This argument is overruled.

B. Attorney’s fees

Defendant contends that the trial court did not make 

sufficient findings of fact to support its award of attorney’s 

fees in the amount of $985.79. We agree.

On 19 August 2011, Plaintiff moved for reasonable 

attorney’s fees and reimbursement of mortgage payments made 

while Defendant was living rent-free in the former marital 

residence as sanctions under section 50-21(e). Under our 

General Statutes, the trial court may impose a sanction, if it 

finds, inter alia, that a party “has willfully obstructed or 

unreasonably delayed or attempted to obstruct or unreasonably 
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delay any pending equitable distribution proceeding . . . .” 

N.C. Gen. Stat. § 50-21(e) (2013).

In a consent order entered 28 February 2012, the court 

stated that Plaintiff’s attorney should submit to the court an 

affidavit regarding fees and that the issue of attorney’s fees 

would be addressed at the final equitable distribution hearing. 

Plaintiff’s attorney submitted an affidavit listing the 

attorney’s fees covered by the motion totaling $985.79. That 

amount appears in Exhibit A labeled “Attorney Fee” along with 

amounts for mortgage and tax payments and other expenses for 

which Plaintiff sought reimbursement. However, the final 

equitable distribution order contains no findings of fact that 

Defendant “willfully obstructed or unreasonably delayed or 

attempted to obstruct or unreasonably delay any pending 

equitable distribution proceeding[.]” See id. Accordingly, we 

vacate the portion of the equitable distribution order which 

purports to award attorney’s fees to Plaintiff. On remand, the 

trial court shall properly consider Plaintiff’s motion for 

sanctions under section 50-21(e), make the necessary findings of 

fact and conclusions of law as supported by the evidence, and 

enter the appropriate ruling in its discretion. See 

Crutchfield, 132 N.C. App. at 195, 511 S.E.2d at 34.
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C. Other property

Defendant also contends that the trial court abused its 

discretion in not resolving disputed evidence on the value of 

the Driftwood home and the value of Plaintiff’s car. The 

evidence regarding the value of the Driftwood home was 

conflicting. Plaintiff listed its value as $171,660 on her

Exhibit A and testified that its tax value in 2011 was $171,660, 

while Joines testified that the most recent tax value of the 

property was $149,850. On redirect examination, Plaintiff 

testified that she thought the addition of a two-story garage 

which included a bathroom with a Jacuzzi tub may have raised the 

home’s value. The court asked Plaintiff, “[D]o you agree the 

current tax value [is $]149,850, or do you know that?” 

Plaintiff replied, “I don’t know that. I mean, I don’t 

understand why it’s dropped so much.” As discussed supra, the 

court’s finding of fact 9 and the listing of the value of the 

property at $171,660 indicates that the trial court resolved the 

conflict in the evidence in favor of Plaintiff’s suggested 

valuation. As for the value of Plaintiff’s car, Defendant does 

not explain what the disputed evidence was as to its value, and 

Joines did not testify about the value of any vehicles. 

Defendant’s arguments on these points are without merit.
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Defendant also contends that the court erred in failing to 

address the real property given to Plaintiff by her parents in 

the equitable distribution order. On cross-examination, 

Plaintiff was asked about the two pieces of property and 

testified that they were given to her by her parents during the 

marriage and that the taxes on them were paid from marital 

funds. At trial, Defendant never made any argument or offered 

any evidence that the properties were anything other than 

Plaintiff’s separate property. See N.C. Gen. Stat. § 50-

20(b)(2) (2013) (defining separate property, inter alia, as that 

“acquired by a spouse by devise, descent, or gift during the 

course of the marriage”). Defendant does not now contend that 

either property should have been classified as marital. Because 

the two properties were not included in the spreadsheet under 

the heading “Marital Property,” it appears that the trial court 

classified them as separate, rather than marital, property. 

Defendant’s argument on this issue is overruled.

III. The Baptist Home house

As for Defendant’s second argument, Plaintiff concedes that 

the trial court erred in removing the Baptist Home house from 

the marital estate and awarding it to the parties’ son in the 

absence of any stipulation of the parties. Accordingly, we 
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vacate this portion of the final distribution award and remand 

to the trial court for classification, valuation, and 

distribution of the Baptist Home house as part of the marital 

estate.

AFFIRMED in part; VACATED and REMANDED in part.

Judges CALABRIA and ELMORE concur.

Report per Rule 30(e).