{ "id": 9131533, "name": "LEIGH W. WALTER, Plaintiff v. JAMES M. WALTER, JR., Defendant", "name_abbreviation": "Walter v. Walter", "decision_date": "2002-04-16", "docket_number": "No. COA01-217", "first_page": "723", "last_page": "734", "citations": [ { "type": "official", "cite": "149 N.C. App. 723" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "559 S.E.2d 25", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "29" } ], "opinion_index": 0 }, { "cite": "148 N.C. App. 329", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9365816 ], "year": 2002, "pin_cites": [ { "page": "334" } ], "opinion_index": 0, "case_paths": [ "/nc-app/148/0329-01" ] }, { "cite": "394 S.E.2d 267", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1990, "pin_cites": [ { "page": "275-76", "parenthetical": "Greene, J., concurring in the result" } ], "opinion_index": 0 }, { "cite": "100 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526211 ], "year": 1990, "pin_cites": [ { "page": "18", "parenthetical": "Greene, J., concurring in the result" } ], "opinion_index": 0, "case_paths": [ "/nc-app/100/0001-01" ] }, { "cite": "401 S.E.2d 784", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "787-8" } ], "opinion_index": 0 }, { "cite": "102 N.C. App. 199", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522997 ], "year": 1991, "pin_cites": [ { "page": "206-7" } ], "opinion_index": 0, "case_paths": [ "/nc-app/102/0199-01" ] }, { "cite": "275 S.E.2d 433", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "438", "parenthetical": "admission of evidence without an objection is \"not a proper basis for appeal\"" } ], "opinion_index": 0 }, { "cite": "302 N.C. 342", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565531 ], "year": 1981, "pin_cites": [ { "page": "349", "parenthetical": "admission of evidence without an objection is \"not a proper basis for appeal\"" } ], "opinion_index": 0, "case_paths": [ "/nc/302/0342-01" ] }, { "cite": "509 U.S. 579", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 355769 ], "weight": 2, "year": 1993, "opinion_index": 0, "case_paths": [ "/us/509/0579-01" ] }, { "cite": "461 S.E.2d 631", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "639", "parenthetical": "citing Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 125 L. Ed. 2d 469 (1993)" } ], "opinion_index": 0 }, { "cite": "341 N.C. 513", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 793165 ], "year": 1995, "pin_cites": [ { "page": "527", "parenthetical": "citing Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 125 L. Ed. 2d 469 (1993)" } ], "opinion_index": 0, "case_paths": [ "/nc/341/0513-01" ] }, { "cite": "335 S.E.2d 316", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1985, "pin_cites": [ { "page": "422" } ], "opinion_index": 0 }, { "cite": "314 N.C. 543", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4689381, 4687407, 4695924, 4688661, 4687388 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/314/0543-04", "/nc/314/0543-05", "/nc/314/0543-03", "/nc/314/0543-02", "/nc/314/0543-01" ] }, { "cite": "331 S.E.2d 266", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "270" } ], "opinion_index": 0 }, { "cite": "75 N.C. App. 414", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526019 ], "year": 1985, "pin_cites": [ { "page": "419" } ], "opinion_index": 0, "case_paths": [ "/nc-app/75/0414-01" ] }, { "cite": "494 S.E.2d 407", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "347 N.C. 396", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 551335, 551114, 551379, 551254, 551354 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/nc/347/0396-05", "/nc/347/0396-02", "/nc/347/0396-01", "/nc/347/0396-04", "/nc/347/0396-03" ] }, { "cite": "487 S.E.2d 784", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "786" } ], "opinion_index": 0 }, { "cite": "127 N.C. App. 87", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11792309 ], "year": 1997, "pin_cites": [ { "page": "91" } ], "opinion_index": 0, "case_paths": [ "/nc-app/127/0087-01" ] }, { "cite": "455 S.E.2d 885", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "888" } ], "opinion_index": 0 }, { "cite": "118 N.C. App. 501", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11919371 ], "year": 1995, "pin_cites": [ { "page": "505-06" } ], "opinion_index": 0, "case_paths": [ "/nc-app/118/0501-01" ] }, { "cite": "389 S.E.2d 113", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "326 N.C. 264", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5306405, 5304933, 5306324, 5309117, 5309023 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc/326/0264-02", "/nc/326/0264-04", "/nc/326/0264-01", "/nc/326/0264-03", "/nc/326/0264-05" ] }, { "cite": "386 S.E.2d 84", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1989, "pin_cites": [ { "page": "87" }, { "page": "87", "parenthetical": "awarding credit to spouse for making post-separation payments on mortgage for house distributed to other spouse" } ], "opinion_index": 0 }, { "cite": "96 N.C. App. 462", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522998 ], "weight": 2, "year": 1989, "pin_cites": [ { "page": "467" }, { "page": "467" } ], "opinion_index": 0, "case_paths": [ "/nc-app/96/0462-01" ] }, { "cite": "364 S.E.2d 175", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1988, "pin_cites": [ { "page": "176-77" }, { "page": "176-77" } ], "opinion_index": 0 }, { "cite": "88 N.C. App. 606", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358729 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "607-08" }, { "page": "607-08" } ], "opinion_index": 0, "case_paths": [ "/nc-app/88/0606-01" ] }, { "cite": "436 S.E.2d 374", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "335 N.C. 172", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2531301, 2526631, 2526354, 2527220, 2531354 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc/335/0172-02", "/nc/335/0172-01", "/nc/335/0172-05", "/nc/335/0172-03", "/nc/335/0172-04" ] }, { "cite": "428 S.E.2d 834", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1993, "pin_cites": [ { "page": "838" }, { "page": "840", "parenthetical": "trial court in best position to determine the most equitable treatment of post-separation payments of marital debt" } ], "opinion_index": 0 }, { "cite": "110 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524556 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "11" }, { "page": "13" } ], "opinion_index": 0, "case_paths": [ "/nc-app/110/0001-01" ] }, { "cite": "365 S.E.2d 178", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "180", "parenthetical": "misconduct during the marriage that dissipates or reduces the value of the marital assets for non-marital purposes can be considered as a distributional factor" } ], "opinion_index": 0 }, { "cite": "89 N.C. App. 107", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520601 ], "year": 1988, "pin_cites": [ { "page": "109-10", "parenthetical": "misconduct during the marriage that dissipates or reduces the value of the marital assets for non-marital purposes can be considered as a distributional factor" } ], "opinion_index": 0, "case_paths": [ "/nc-app/89/0107-01" ] }, { "cite": "331 S.E.2d 682", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1985, "pin_cites": [ { "page": "687" }, { "page": "687", "parenthetical": "only acts or circumstances affecting the marital economy are properly considered as distributional factors" } ], "opinion_index": 0 }, { "cite": "314 N.C. 80", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4687900 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "87" }, { "page": "87" } ], "opinion_index": 0, "case_paths": [ "/nc/314/0080-01" ] }, { "cite": "537 S.E.2d 845", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "853" } ], "opinion_index": 0 }, { "cite": "140 N.C. App. 552", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12131452 ], "year": 2000, "pin_cites": [ { "page": "564" } ], "opinion_index": 0, "case_paths": [ "/nc-app/140/0552-01" ] }, { "cite": "487 S.E.2d 542", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "346 N.C. 277", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 139630, 139665, 139379, 139323, 139518 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/nc/346/0277-05", "/nc/346/0277-01", "/nc/346/0277-02", "/nc/346/0277-03", "/nc/346/0277-04" ] }, { "cite": "479 S.E.2d 240", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "242" } ], "opinion_index": 0 }, { "cite": "125 N.C. App. 113", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11865488 ], "year": 1997, "pin_cites": [ { "page": "116" } ], "opinion_index": 0, "case_paths": [ "/nc-app/125/0113-01" ] }, { "cite": "341 S.E.2d 116", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "pin_cites": [ { "page": "118", "parenthetical": "findings made by the trial court must be supported by competent evidence" }, { "page": "118" } ], "opinion_index": 0 }, { "cite": "80 N.C. App. 110", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522067 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "112", "parenthetical": "findings made by the trial court must be supported by competent evidence" }, { "page": "112" } ], "opinion_index": 0, "case_paths": [ "/nc-app/80/0110-01" ] }, { "cite": "533 S.E.2d 501", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "504", "parenthetical": "\"[a]ppellate judges find such references invaluable in directing the court's attention to the pertinent portions of the record\"" } ], "opinion_index": 0 }, { "cite": "139 N.C. App. 311", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9496659 ], "year": 2000, "pin_cites": [ { "page": "316", "parenthetical": "\"[a]ppellate judges find such references invaluable in directing the court's attention to the pertinent portions of the record\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/139/0311-01" ] }, { "cite": "374 S.E.2d 376", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1988, "pin_cites": [ { "page": "378" }, { "page": "378" } ], "opinion_index": 0 }, { "cite": "323 N.C. 543", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2563389 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "546" }, { "page": "546" } ], "opinion_index": 0, "case_paths": [ "/nc/323/0543-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 50-20", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "pin_cites": [ { "page": "(b)(2)" }, { "page": "(c)(12)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 910, "char_count": 26862, "ocr_confidence": 0.758, "pagerank": { "raw": 3.616044859557101e-07, "percentile": 0.8884328777469266 }, "sha256": "5ecc9008eeda7a85e70f23b3c182e63f4375951f1df951a9ce73f09c34939aea", "simhash": "1:1fe3e56f3e4aedd6", "word_count": 4296 }, "last_updated": "2023-07-14T21:06:37.161258+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges HUNTER and TYSON concur." ], "parties": [ "LEIGH W. WALTER, Plaintiff v. JAMES M. WALTER, JR., Defendant" ], "opinions": [ { "text": "GREENE, Judge.\nJames M. Walter, Jr. (Defendant) and Leigh W. Walter (Plaintiff) separately appeal an equitable distribution judgment and order dated 4 April 2000.\nOn 21 August 1996, Plaintiff filed a complaint seeking, in pertinent part, an equitable distribution of marital property. Evidence at the equitable distribution hearing established Plaintiff and Defendant were married on 26 September 1981, separated on 21 August 1996, and divorced on 14 May 1998. No children were bom of the marriage. At the time of their marriage, Defendant was employed as an associate oral surgeon with a partnership practice. Shortly following his marriage to Plaintiff, Defendant became a sole practitioner and opened his own practice of oral and maxillofacial surgery (the Practice). Plaintiff contributed to the Practice by assuming the responsibilities of an office manager.\nBetween 21 and 22 August 1996, after the time of the parties\u2019 separation, Plaintiff and a number of helpers were observed removing several truckloads of property from the parties\u2019 marital home. When Defendant returned from a fishing trip and saw the house, he observed that: \u201cShe took basically everything. Everything [] [is] gone.\u201d\nOn 16 September 1999, the parties entered into a stipulation regarding the items Plaintiff had taken from the marital home between 21 and 22 August 1996. The stipulation provided that for the purpose of equitable distribution, these items would be distributed to Plaintiff at a value of $190,000.00. The stipulation further stated that it would not constitute an admission by Plaintiff that she removed or converted the items at any time or maintained possession of or control over them since the date of separation.\nDefendant offered testimony and Plaintiff stipulated that Defendant had applied $32,452.50 of his separate property in addition to marital funds for the purchase of a house on Meadowbrook Road (the Meadowbrook home) that the parties had bought during their marriage and to which they took title as tenants by the entirety. Defendant further testified that $11,000.00 in cash kept in a safe in the marital home was his separate property derived from his pre-marital business of selling antique British grandfather clocks. This money remained untouched during the course of the marriage as Defendant considered it a cash reserve. Plaintiff, on the other hand, claimed the cash was used periodically over the course of their marriage for marital purposes and subsequently replaced and should therefore be considered marital property.\nDefendant used his separate funds during the post-separation period but prior to the date of equitable distribution to pay for: homeowners insurance, maintenance, and other expenses with respect to the Meadowbrook home and another house that had been purchased during the marriage (the Yadkin house); the 1996 through 1999 property taxes and the mortgage on a Maplewood Avenue office building (the Maplewood office); and the parties\u2019 joint federal and state income taxes.\nDefendant offered the expert testimony of Loyd R. Daniel (Daniel) and Stanley L. Pollock (Pollock) regarding the valuation of the Practice. Plaintiff offered the expert testimony of Robert N. Pulliam (Pulliam). Pulliam valued the Practice on the date of separation at $1,131,000.00. His testimony and written report were admitted into evidence without objection.\nIn an equitable distribution judgment and order dated 4 April 2000, the trial court found \u201call three of the experts presented by . . . Plaintiff and . . . Defendant qualified] as experts in the area of the valuation of professional practices.\u201d The trial court adopted Pulliam\u2019s valuation of the Practice, which it found to be \u201cnot only based on accounting principles!] but also . . . grounded in solid appraisal practice and common sense\u201d and assigned a date-of-separation value of $1,131,000.00 to the Practice. The trial court further found in finding of fact number LIV that:\nA. The \u201cCash in Safe\u201d is determined to be the separate property of. . . Defendant at a fair market value on the date of separation of $11,000.00.\nD. [P]ursuant to [the parties\u2019] Stipulation^] . . . Defendant made a contribution of $32,452.50 of his separate property to the acquisition of and improvements to [the Meadowbrook home]. . . . Defendant has established through clear, cogent and convincing evidence that he had no intention of making a gift of his separate property to the marital estate, although said property was deeded to the parties as tenants by the entirely]. The Court finds therefore that of the date of separation value of $145,000.00[,] . . . $32,452.50 is . . . Defendant\u2019s separate property and that the remaining sum of $112,547.50 is marital property, which is distributed to Defendant.\nThe trial court distributed the Meadowbrook home, the Yadkin house, the Maplewood office, and the marital debt to Defendant. The trial court granted Defendant a credit in the amount of $4,494.87 resulting from insurance paid on marital property, including homeowners insurance for the Meadowbrook home and the Yadkin house, and a credit in the amount of $4,950.00 for maintenance on the Meadowbrook home. The trial court denied Defendant a credit for post-separation mortgage payments on the Maplewood office because the office had been distributed to Defendant, \u201ctherefore providing him with full credit for the principal reduction to the mortgage balance subsequent to the date of separation.\u201d The trial court also denied Defendant credit for post-separation property tax payments on the Maplewood office for the years 1996 through 1999. The trial court further denied Defendant\u2019s request for credit in respect to the payment of joint income taxes following the parties\u2019 separation because \u201cthe items for which Defendant was requesting credit were included as marital debt under Schedule I of the Pre-Trial Order\u201d and assigned to Defendant. Finally, the trial court denied Defendant credit for post-date-of-separation repairs and improvements to the Yadkin house, which had been awarded to Defendant, as there was \u201cno evidence that. . . Plaintiff benefitted in any respect from . . . Defendant\u2019s acquisition of this property, nor [was] there any evidence that . . . Defendant was involuntarily forced to make repairs and improvements to the property following the parties\u2019 separation.\u201d\nAmong the distributional factors listed by the trial court, the trial court considered \u201cthe acts of . . . Plaintiff in wasting, neglecting and converting marital property between the date of separation and the trial of this matter, including those assets set out in the written [stipulation by the parties\u201d on 16 September 1999. The trial court referred to these acts as \u201cthe most significant distributional factor.\u201d As a result, the trial court concluded that an equal distribution of the marital property would be inequitable and awarded Defendant 54.5% of the net marital estate. The assets covered by the 16 September 1999 stipulation in the amount of $190,000.00 were deemed part of the marital estate and distributed to Plaintiff.\nThe issues are whether: (I) (A) Defendant rebutted the presumption of a gift of $32,452.50 of his separate property to the marital estate; (B) the $11,000.00 cash in the safe was properly classified as Defendant\u2019s separate property; (II)(A) the evidence supports the finding of a distributional factor that Plaintiff wasted or converted marital assets; (B) the trial court erred in its allocation of credits; and (III) Defendant properly preserved his right to argue the trial court erred in adopting Pulliam\u2019s valuation of the Practice.\nI\nGlassification\nA\nMeadowbrook Home\nPlaintiff claims the Meadowbrook home is marital property while Defendant contends it is partly marital and partly his separate property. This property was acquired by the parties as tenants by the entirety during the marriage and before the date of separation, and Defendant applied $32,452.50 of his separate monies to the purchase price.\nAs the property was acquired by the parties during the marriage, before the date of separation, and was owned by them on the date of separation, Plaintiff met her burden of showing the property was marital. See N.C.G.S. \u00a7 50-20(b)(l) (1999). Defendant contends he acquired a portion of the Meadowbrook home in exchange for his separate monies and thus, pursuant to the \u201cexchange provision\u201d of N.C. Gen. Stat. \u00a7 50-20(b)(2), has satisfied his burden. Plaintiff, relying on McLean v. McLean, 323 N.C. 543, 546, 374 S.E.2d 376, 378 (1988), contends the transfer implicates the \u201cinterspousal gift provision\u201d of section 50-20(b)(2), and thus, Defendant made a gift of his $32,452.50 to the marital estate. The titling of the property in the entireties does indeed raise a presumption of donative intent, implicating the \u201cinterspousal gift provision\u201d; however, it is rebuttable by clear and convincing evidence. McLean, 323 N.C. at 546, 374 S.E.2d at 378.\nIn this case, the trial court found Defendant offered \u201cclear, cogent and convincing evidence that he had no intention of making a gift\u201d of the $32,452.50 to the marital estate. Defendant points to no such evidence in his brief, see N.C.R. App. P. 28(b)(5) (appellate briefs shall contain \u201call material facts ... supported by references to pages in the transcript of proceedings, the record on appeal, or exhibits\u201d); see also Naddeo v. Allstate Ins. Co., 139 N.C. App. 311, 316, 533 S.E.2d 501, 504 (2000) (\u201c[a]ppellate judges find such references invaluable in directing the court\u2019s attention to the pertinent portions of the record\u201d), nor can we find any evidence in the record to support the trial court\u2019s finding of fact. Because the trial court\u2019s finding was not supported by competent evidence, it was in error. See Nix v. Nix, 80 N.C. App. 110, 112, 341 S.E.2d 116, 118 (1986) (findings made by the trial court must be supported by competent evidence). Accordingly, the entire value of the Meadowbrook home must be classified as marital property and the trial court\u2019s order to the contrary is reversed. Defendant is, as a result of this holding, entitled to have the trial court consider the gift of his separate property to the marital estate as a distributional factor. See Collins v. Collins, 125 N.C. App. 113, 116, 479 S.E.2d 240, 242, disc. review denied, 346 N.C. 277, 487 S.E.2d 542 (1997). The weight, if any, assigned to this factor is within the discretion of the trial court. See Khajanchi v. Khajanchi, 140 N.C. App. 552, 564, 537 S.E.2d 845, 853 (2000).\nB\nCash Reserve\nPlaintiff argues the $11,000.00 found in the safe in the marital home was marital property. Defendant contends it was properly classified as his separate property.\nAt trial, Defendant offered testimony that the $11,000.00 came from the sale of clocks that had been his separate properties. Plaintiff acknowledged the original $11,000.00 as Defendant\u2019s separate property but testified funds from this source were used for marital purposes and replaced with marital funds. In determining that the $11,000.00 in cash is Defendant\u2019s separate property, it appears the trial court implicitly resolved this conflicting testimony in Defendant\u2019s favor. As there was competent evidence in the record to support this determination, the trial court committed no error in classifying the $11,000.00 as Defendant\u2019s separate property. See Nix, 80 N.C. App. at 112, 341 S.E.2d at 118.\nII\nDistribution\nA\nDistributional Factors\nIn determining whether an equal distribution of marital assets is equitable, the trial court is to consider, as a distributional factor, the post-separation \u201c[a]cts of either party to . . . waste, neglect, devalue or convert the marital property.\u201d N.C.G.S. \u00a7 50-20(c)(11a) (1999). Plaintiff\u2019s removal of truckloads of marital property from the marital home immediately pursuant to the parties\u2019 separation constituted marital misconduct. Nevertheless, marital misconduct, consistent with Smith v. Smith, 314 N.C. 80, 87, 331 S.E.2d 682, 687 (1985), only supports a distributional factor if it has an economic effect on the marriage. See also Coleman v. Coleman, 89 N.C. App. 107, 109-10, 365 S.E.2d 178, 180 (1988) (misconduct during the marriage that dissipates or reduces the value of the marital assets for non-marital purposes can be considered as a distributional factor). Accordingly, marital property is wasted, neglected, devalued, or converted only if it is, at the time of the distribution, either not available for distribution or has, as a result of a spouse\u2019s acts, decreased in value from its date of separation value. Id.; see Smith, 314 N.C. at 87, 331 S.E.2d at 687 (only acts or circumstances affecting the marital economy are properly considered as distributional factors).\nIn this case, the parties stipulated the items removed by Plaintiff from the marital home between 21 and 22 August 1996, after the time of separation, had a value of $190,000.00. The trial court found the items to be marital property and distributed them to Plaintiff, assigning the property the stipulated value. Thus, the marital estate was not deprived of any property. It follows, the trial court erred in treating Plaintiffs post-separation removal of the property from the marital home as a distributional factor under section 50-20(c)(lla).\nB\nCredits\nA spouse is entitled to some consideration, in an equitable distribution proceeding, for any post-separation payments made by that spouse (from non-marital or separate funds) for the benefit of the marital estate. Edwards v. Edwards, 110 N.C. App. 1, 11, 428 S.E.2d 834, 838, disc. review denied, 335 N.C. 172, 436 S.E.2d 374 (1993). Likewise, a spouse is entitled to some consideration for any post-separation use of marital property by the other spouse. Becker v. Becker, 88 N.C. App. 606, 607-08, 364 S.E.2d 175, 176-77 (1988). To accommodate post-separation payments, the trial court may treat the payments as distributional factors under section 50-20(c)(11a), N.C.G.S. \u00a7 50-20(c)(lla), or provide direct credits for the benefit of the spouse making the payments, see Hendricks v. Hendricks, 96 N.C. App. 462, 467, 386 S.E.2d 84, 87 (1989), disc. review denied, 326 N.C. 264, 389 S.E.2d 113 (1990). With regard to post-separation use of marital property, the trial court may treat the use as a distributional factor under N.C. Gen. Stat. \u00a7 50-20(c)(12), see Becker, 88 N.C. App. at 607-08, 364 S.E.2d at 176-77, or place some value on the use and provide a direct credit for the benefit of the spouse who did not use the property. If the property is distributed to the spouse who did not have the post-separation use of it or who did not make post-separation payments relating to the property\u2019s maintenance (i.e. taxes, insurance, repairs), the use and/or payments must be considered as either a credit or distributional factor. See Loving v. Loving, 118 N.C. App. 501, 505-06, 455 S.E.2d 885, 888 (1995) (spouse not receiving the marital debt who makes some payment on the marital debt after the date of separation and before equitable distribution is entitled to either a reimbursement from the other spouse, a credit, or an upward adjustment in the percentage distribution of the marital properties); see also Hendricks, 96 N.C. App. at 467, 386 S.E.2d at 87 (awarding credit to spouse for making post-separation payments on mortgage for house distributed to other spouse). If, on the other hand, the property is distributed to the spouse who had the post-separation use of it or who made post-separation payments relating to its maintenance, there is, as a general proposition, no entitlement to a credit or distributional factor. Nonetheless, the trial court may, in its discretion, weigh the equities in a particular case and find that a credit or distributional factor would be appropriate under the circumstances. See Edwards, 110 N.C. App. at 13, 428 S.E.2d at 840 (trial court in best position to determine the most equitable treatment of post-separation payments of marital debt).\nIn this case, the trial court denied Defendant credits for post-separation payments (from non-marital or separate funds) of: (1) monthly mortgage obligations secured by a deed of trust on the Maplewood office, (2) property taxes due on the Maplewood office, (3) the parties\u2019 joint income tax obligations, and (4) cost of repairs to the Yadkin house. The trial court granted Defendant credits for homeowners insurance paid on the Meadowbrook home and the Yadkin house and maintenance expenditures on the Meadowbrook home. As the Maplewood office, the Yadkin house, and all the marital debt were distributed to Defendant, it was within the trial court\u2019s discretion to either allow or deny Defendant the requested credits, and we find no abuse in the trial court\u2019s exercise of its discretion.\nIII\nValuation of the Practice\nIn an equitable distribution proceeding, the trial court is to determine the net fair market value of the property based on the evidence offered by the parties. Carlson v. Carlson, 127 N.C. App. 87, 91, 487 S.E.2d 784, 786, disc. review denied, 347 N.C. 396, 494 S.E.2d 407 (1997). There is no single best method for assessing that value, Poore v. Poore, 75 N.C. App. 414, 419, 331 S.E.2d 266, 270, disc. review denied, 314 N.C. 543, 335 S.E.2d 316-17 (1985), but the approach utilized must be \u201csound,\u201d id. at 422, 331 S.E.2d at 272. 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. State v. Goode, 341 N.C. 513, 527, 461 S.E.2d 631, 639 (1995) (citing Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 125 L. Ed. 2d 469 (1993)). A party believing the methodology used by a witness is not valid or, if valid, is not properly applied to the facts at issue, has an obligation to object to its admission. See N.C.G.S. \u00a7 8C-1, Rule 103(a)(1) (1999). If a timely objection is not lodged at trial, it cannot be argued on appeal that the trial court erred in relying on this evidence in determining the value of the asset at issue. See N.C.R. App. P. 10(b)(1); State v. Lucas, 302 N.C. 342, 349, 275 S.E.2d 433, 438 (1981) (admission of evidence without an objection is \u201cnot a proper basis for appeal\u201d).\nIn this case, Plaintiff offered the testimony of Pulliam, who was qualified as an expert in the area of the valuation of professional practices. He gave his opinion as to the value of the Practice, and Defendant offered no objection to that opinion, nor did Defendant object to the methodology utilized in reaching the opinion. On appeal, Defendant argues the methodology used by Pulliam was flawed and thus the trial court could not rely on it for the purpose of determining value. No objection was entered at trial to the valuation methodology utilized by Pulliam or its application to the facts of this case. Thus, Defendant is precluded from challenging the trial court\u2019s valuation findings based on this methodology on the ground that it failed to \u201creasonably approximate^ the net value of the [asset].\u201d Fountain, 148 N.C. App. at 338, 559 S.E.2d at 32. Accordingly, Defendant\u2019s assignments of error regarding the valuation of the Practice are overruled.\nSummary\nIn summary, (I) (A) the trial court erred in classifying the $32,452.50 payment made by Defendant on the Meadowbrook home as his separate property; (B) the trial court properly classified the $11,000.00 found in the safe in the marital home as Defendant\u2019s separate property; (II) (A) the trial court erred in finding as a distributional factor that Plaintiff wasted or converted marital assets; (B) the trial court did not abuse its discretion in its allocation of credits; and (III) Defendant failed to preserve his right to argue the trial court erred in adopting Pulliam\u2019s valuation of the Practice. On remand, the trial court must enter a new equitable distributional order consistent with this opinion and without the benefit of new evidence.\nReversed in part and remanded in part.\nJudges HUNTER and TYSON concur.\n. While the stipulation does not specifically state that the $190,000.00 was the date-of-separation value, we accept it as such. The trial court was required to value the marital property on the date of separation, see N.C.G.S. \u00a7 50-21(b) (1999), and neither party suggests the $190,000.00 represents the value at some other point in time or that the property decreased in value between the date of separation and the date of distribution.\n. The burden is on the party claiming property to be marital, separate, or divisible to prove that it is so. See Atkins v. Atkins, 102 N.C. App. 199, 206-7, 401 S.E.2d 784, 787-8 (1991).\n. Evidence that a gift to the marital estate was not intended \u201ccan be gathered from \u2018circumstances which led to the execution\u2019 of the deed and the parties\u2019 action after execution of the deed,\u201d such as the donor spouse\u2019s continued treatment of the property as his separate property following the conveyance. Lawrence v. Lawrence, 100 N.C. App. 1, 18, 394 S.E.2d 267, 275-76 (1990) (Greene, J., concurring in the result). Competent evidence also includes the donor spouse\u2019s intent, expressed at some point in time, not to make a gift of the property to the marital estate. Id.\n. If this testimony is believed, the exchange provision of section 50-20(b)(2) would require classification of the cash derived from the sale of the clocks as Defendant\u2019s separate property.\n. Had the $11,000.00 cash been replaced entirely with marital funds, it would have lost its separate property status. If replaced in part by marital funds, the replaced part would constitute marital property, with the other part retaining its separate property status. The commingling of the funds, in this instance, would not transmute the separate property into marital property as long as the party claiming a portion of the funds to be separate would be able to trace the initial amount deposited to the balance existing on the date of separation. See Fountain v. Fountain, 148 N.C. App. 329, 334, 559 S.E.2d 25, 29 (2002).\n. Marital misconduct that has no resulting economic impact may nonetheless have other consequences. See N.C.G.S. \u00a7 50-21(e) (1999) (spouse can be sanctioned for the willful obstruction of an equitable distribution proceeding); N.C.G.S. \u00a7 50-20(i) (1999) (spouse can be directed to pay for costs incurred for the return of the other spouse\u2019s separate property); N.C.G.S. \u00a7 1A-1, Rule 34(a) (1999) (property can be subject to inspection for the purpose of inventory and valuation).\n. If Plaintiff had, for example, expended marital funds to remove the property from the residence, the removal would have had some economic impact on the marital estate and to this extent would have been properly considered as a distributional factor. There is, however, no evidence in this case that marital funds were expended to remove the property from the residence.\n. \u201c[A] witness qualified as an expert by knowledge, skill, experience, training, or education\u201d may offer opinion testimony as to the value of an asset. N.C.G.S. \u00a7 8C-1, Rule 702(a) (1999).\n. Defendant does not contest the qualification of Pulliam as an expert.\n. We have, carefully reviewed the remaining assignments of error entered by the parties and overrule them without discussion.", "type": "majority", "author": "GREENE, Judge." } ], "attorneys": [ "Gatto Law Offices, by Joseph J. Gatto, and Bell, Davis & Pitt, P.A., by Robin J. Stinson, for plaintiff-appellant.", "White and Crumpler, by G. Edgar Parker, for defendant-appellant." ], "corrections": "", "head_matter": "LEIGH W. WALTER, Plaintiff v. JAMES M. WALTER, JR., Defendant\nNo. COA01-217\n(Filed 16 April 2002)\n1. Divorce\u2014 equitable distribution \u2014 home\u2014tenants by enti-ety \u2014 separate property part of purchase price \u2014 presumption of donative intent\nThe entire value of a home acquired by the parties as tenants by the entirety during the marriage and before the date of separation must be classified as marital property, even though defendant husband had applied $32,452.50 of his separate property to the purchase of the home, where defendant offered no evidence that he had no intention of making a gift of the $32,452.50 to the marital estate and thus failed to rebut the presumption of donative intent provided by N.C.G.S. \u00a7 50-20(b)(2).\n2. Divorce\u2014 equitable distribution \u2014 classification\u2014money found in safe of marital home \u2014 separate property\nThe trial court did not err in an equitable distribution case by classifying the $11,000 found in the safe in the marital home as defendant husband\u2019s separate property where the husband offered testimony that the $11,000.00 came from the sale of clocks that had been his separate properties, the wife acknowledged the original $11,000.00 as the husband\u2019s separate property but testified that funds from this source were used for marital purposes and replaced with marital funds, and the trial court implicitly resolved this conflicting testimony in the husband\u2019s favor.\n3. Divorce\u2014 equitable distribution \u2014 distributional factor\u2014 wasting or converting marital assets\nThe trial court erred in an equitable distribution case by finding as a distributional factor that plaintiff wife wasted or converted marital assets by her post-separation misconduct in removing truckloads of property from the marital home where the parties stipulated that the items removed by plaintiff had a value of $190,000.00; the trial court found the items to be marital property and distributed them to plaintiff, assigning thereto the stipulated value; and the marital estate was thus not deprived of any property. N.C.G.S. \u00a7 50-20(c).\n4. Divorce\u2014 equitable distribution \u2014 denial of credits \u2014 no abuse of discretion\nThe trial court in an equitable distribution case did not abuse its discretion in denying defendant husband credits for post-separation payments from separate funds for monthly mortgage obligations secured by a deed of trust on an office building, property taxes on the office building, the parties\u2019 joint income tax obligations, and the cost of repairs to a house where the office building, the house, and all the marital debt were distributed to defendant.\n5. Appeal and Error\u2014 preservation of issues \u2014 failure to object\nAlthough defendant husband contends in an equitable distribution case that the trial court erred by adopting the valuation given by plaintiff\u2019s expert regarding defendant\u2019s oral and maxillo-facial surgery practice, defendant failed to preserve this issue for appeal, because: (1) defendant failed to object to the expert\u2019s opinion, and (2) defendant failed to object at trial to the valuation methodology utilized by the expert or its application to the facts of this case.\nAppeals by defendant and plaintiff from judgment and order dated 4 April 2000 by Judge Chester C. Davis in Forsyth County District Court. Heard in the Court of Appeals 29 January 2002.\nGatto Law Offices, by Joseph J. Gatto, and Bell, Davis & Pitt, P.A., by Robin J. Stinson, for plaintiff-appellant.\nWhite and Crumpler, by G. Edgar Parker, for defendant-appellant." }, "file_name": "0723-01", "first_page_order": 757, "last_page_order": 768 }