NO. COA14-41

NORTH CAROLINA COURT OF APPEALS

Filed: 16 September 2014

LOIS A. SAULS,

Plaintiff,

v. Beaufort County

No. 06 CVD 1632

ROLAND GARY SAULS,

Defendant.

Appeal by defendant from orders entered 15 February 2013

and 11 July 2013 by Judge Darrell B. Cayton, Jr. in Beaufort

County District Court. Heard in the Court of Appeals 13 August

2014.

Attorney Jonathan McGirt, for plaintiff. 

Attorney W. Gregory Duke, for defendant.

ELMORE, Judge.

Defendant timely appeals from: 1.) an equitable 

distribution order entered 15 February 2013 ordering defendant 

to pay plaintiff an in-kind distribution of $178,667.49 in cash 

and check proceeds and 2.) an order entered 11 July 2013 denying 

defendant’s motion for a new trial pursuant to Rule 59 of the 

North Carolina Rules of Civil Procedure. After careful 

consideration, we affirm. 

I. Facts
-2-

Lois A. Sauls (plaintiff) and Roland Gary Sauls (defendant) 

married each other on 6 October 1963. Over the years, defendant 

accumulated large sums of cash, which he kept inside a safe in 

the parties’ former marital residence. Although plaintiff knew 

where the combination to the safe was hidden, she did not access 

the safe unless directed to do so by defendant. In September 

2005, the parties temporarily separated. Around this time, 

plaintiff attempted to access the safe on her own but the 

combination and keys had been removed from their usual hiding 

place. Defendant was the only other person who knew where the 

combination and keys were hidden.

The parties reconciled in January 2006. At that time, 

defendant had four checks, each for $10,000, issued and made 

payable to plaintiff. On two separate occasions, defendant 

drove plaintiff to the bank, sent her inside to endorse and cash 

one of the checks, and then plaintiff gave defendant the cash 

proceeds, which he “needed . . . for the business.” Plaintiff 

testified that she never cashed the two remaining checks and 

defendant always kept the checks in his possession. However, 

defendant claimed plaintiff cashed the remaining two checks in 

the same way as she did the first two and that plaintiff had 

just “forgot some things.” 
-3-

The parties finally separated on 13 August 2006. On 13 

December 2006, plaintiff filed a complaint asserting claims for 

post-separation support, alimony, divorce from bed and board, 

equitable distribution, and attorneys’ fees. Defendant filed an 

answer and a counterclaim for equitable distribution. In spring 

2008, the safe was opened by a locksmith in the presence of the 

parties and their attorneys. There was no cash in the safe.

On 30 January 2009, the parties divorced. Plaintiff 

subsequently dismissed the complaint against defendant with the 

exception of her claim for equitable distribution, which was 

heard in Beaufort County District Court on 29 May 2012. The 

trial court found that defendant had removed from the marital 

residence $330,000 in cash and $20,000 in certified checks, 

which were marital assets. The trial court entered an order for 

equitable distribution and, in part, ordered that defendant pay 

plaintiff $178,667.49 as an in-kind distribution of cash and 

certified checks that defendant took from the former martial 

estate.

II. Analysis

a.) Findings of Fact
-4-

First, defendant argues that the trial court erred in 

finding as fact that the parties had $350,000 in cash and checks 

as of the date of separation. We disagree.

“In reviewing a trial judge’s findings of fact, we are 

‘strictly limited to determining whether the trial judge’s 

underlying findings of fact are supported by competent evidence, 

in which event they are conclusively binding on appeal, and 

whether those factual findings in turn support the judge’s 

ultimate conclusions of law.’” State v. Williams, 362 N.C. 628, 

632, 669 S.E.2d 290, 294 (2008) (quoting State v. Cooke, 306 

N.C. 132, 134, 291 S.E.2d 618, 619 (1982)); see also Sisk v. 

Transylvania Cmty. Hosp., Inc., 364 N.C. 172, 179, 695 S.E.2d 

429, 434 (2010) (“‘[F]indings of fact made by the trial judge 

are conclusive on appeal if supported by competent evidence, 

even if . . . there is evidence to the contrary.’” (quoting 

Tillman v. Commercial Credit Loans, Inc., 362 N.C. 93, 100-01, 

655 S.E.2d 362, 369 (2008))). 

It is the duty of the trial judge “to weigh and consider 

all competent evidence, and pass upon the credibility of the 

witnesses, the weight to be given their testimony and the 

reasonable inferences to be drawn therefrom.” In re Whisnant,

71 N.C. App. 439, 441, 322 S.E.2d 434, 435 (1984) (citation 
-5-

omitted). “It is not the function of this Court to reweigh the 

evidence on appeal.” Garrett v. Burris, ___ N.C. App. ___, ___, 

735 S.E.2d 414, 418 (2012), aff'd per curiam, 366 N.C. 551, 742 

S.E.2d 803 (2013).

The record contains competent evidence to support the trial 

court’s finding regarding the value of the cash and checks. 

Most notably, under “Schedule F” of the pre-trial order 

(“Property about which there is a disagreement as to 

classification, with each party’s contentions as to the value 

and distribution.”), neither party disputed the value of the 

items listed as “$330,000 cash” and “2 Certified Checks in 

Wife’s Name.” Defendant only contended that the cash should be 

split in half because it was marital property, and that he did 

not know the location of the checks.

Additionally, although plaintiff never counted how much 

money was in the safe, she testified that defendant told her the 

amount was “three-thirty.” Defendant testified that, in the 

safe, he had “ten plus” envelopes each with “thirty or forty 

thousand dollars in an envelope at one time.” Defendant also 

stated that the last time he counted the cash was late in the 

summer of 2006, just before the parties separated, and the safe 

contained $330,000.
-6-

Moreover, plaintiff testified that she only cashed two of 

the four $10,000 checks. Although the parties offered 

conflicting testimony as to whether defendant had the two 

remaining checks, the trial court found more credible 

plaintiff’s testimony that she never cashed the remaining checks 

and that defendant had them in his possession. Thus, the trial 

court did not err in finding as fact that the parties had 

$350,000 in cash and checks as of the date of separation.

b.) “Presently Owned”

Next, although defendant offers no legal authority for his 

argument, he maintains that because the cash and checks were not 

found in the safe, the trial court could not find that they were 

“presently owned” by the parties on the date of separation. We 

disagree.

Equitable distribution is vested in the 

discretion of the trial court and will not 

be disturbed absent a clear abuse of that 

discretion. 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. 

Wiencek-Adams v. Adams, 331 N.C. 688, 691, 417 S.E.2d 449, 451 

(1992) (citations omitted).
-7-

Marital property is “all real and personal property 

acquired by either spouse or both spouses during the course of 

the marriage and before the date of the separation of the 

parties, and presently owned, except property determined to be 

separate property or divisible property[.]” N.C. Gen. Stat. § 

50-20(b)(1) (2013). “The spouse claiming that the property is 

separate bears the burden of proof, as under N.C. Gen. Stat. § 

50-20(b)(1), it is presumed that all property acquired after the 

date of marriage and before the date of separation is marital 

property[.]” Allen v. Allen, 168 N.C. App. 368, 374, 607 S.E.2d 

331, 335 (2005) (citation and quotation marks omitted). This 

Court has interpreted “presently owned” to mean property owned 

by either party as of the date of separation. See Lawrence v. 

Lawrence, 100 N.C. App. 1, 16-17, 394 S.E.2d 267, 275 

(1990)(ruling that the trial court erred in classifying certain 

funds as marital property where the funds had been used to 

purchase assets that were not owned by either party on the date 

of separation).

Here, the trial court found that defendant removed from the 

marital home $350,000 in cash and checks, which were marital 

funds. It is irrelevant whether the cash and checks were 

actually in the safe on the date of separation, especially since 
-8-

the record is devoid of any evidence that the cash or checks 

were ever owned by someone other than plaintiff or defendant. 

Thus, we hold that the cash and checks were “presently owned,” 

and defendant’s argument fails. 

c.) In-Kind Distribution

Finally, defendant argues that the trial court erred by 

ordering an in-kind distribution1 of $178,667.49 without first 

considering whether defendant had sufficient liquid assets to 

satisfy such an award. We disagree. 

N.C. Gen. Stat. § 50–20(e) (2013) “creates a presumption 

that an in-kind distribution of marital or divisible property is 

equitable, but permits a distributive award ‘to facilitate, 

effectuate, or supplement’ the distribution.” Allen, 168 N.C. 

App. at 372–73, 607 S.E.2d at 334. “[I]f 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, 601 S.E.2d 905, 908 (2004). Should a party 

 

1 The difference between a “distributive award” and an “in-kind 

distribution” is explained in 1 LLOYD T. KELSO, N.C. FAMILY LAW 

PRACTICE § 6:60 (2008): “An ‘in-kind distribution’ refers to a 

distribution of the property itself as opposed to a substitute 

for the property such as a cash award equal to the value of the 

property.” Id. § 6:60, at 447.
-9-

successfully rebut the equity of an in-kind distribution, a 

trial court may order a distributive award pursuant to N.C. Gen. 

Stat. § 50-20(c) (2013). This statute sets forth distributional 

factors that the trial court must consider before ordering a 

distributive award. Id. One of those factors is “[t]he liquid 

or nonliquid character of all marital property and divisible 

property.” Id. In other words, “[t]he trial court is required 

to make findings as to whether the defendant has sufficient 

liquid assets from which he can make the distributive award 

payment.” Urciolo, 166 N.C. App. at 507, 601 S.E.2d at 908 

(emphasis added).

Here, the trial court specifically ordered an in-kind 

distribution of the marital funds, but defendant did not rebut 

the presumption that an in-kind distribution of the cash and 

checks would be equitable. As such, the trial court was not 

required to consider the distributive award factors enumerated 

under N.C. Gen. Stat. § 50-20(c), including whether defendant 

had sufficient assets to pay the award. Furthermore, because 

the trial court specifically ordered defendant to pay 

$178,667.49 from the $350,000 in cash and check proceeds in his 

possession, it is clear that the same liquidity concerns raised 

with distributive awards are not present in this case.
-10-

III. Conclusion

In sum, the trial court did not err in finding as fact that 

the parties had $350,000 in cash and checks as of the date of 

separation, or in ordering defendant to pay plaintiff 

$178,667.49 in cash or check proceeds as an in-kind 

distribution. The trial court’s findings of fact are supported 

by competent evidence in the record, and it was not required to 

make a specific finding that defendant had sufficient liquid 

assets to pay the in-kind distribution. Accordingly, the trial 

court’s equitable distribution order and order denying 

defendant’s motion for a new trial are affirmed.

Affirmed. 

Judges CALABRIA and STEPHENS concur.