{ "id": 8914765, "name": "ANNE LITTON WHITE [DAVIS], Plaintiff v. JOHN BLEVINS DAVIS, Defendant", "name_abbreviation": "White v. Davis", "decision_date": "2004-02-17", "docket_number": "No. COA03-359", "first_page": "21", "last_page": "30", "citations": [ { "type": "official", "cite": "163 N.C. App. 21" } ], "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": "504 S.E.2d 571", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "574", "parenthetical": "\"an order rendered in open court is not enforceable [and therefore not individually appealable] until it is 'entered,' i.e., until it is reduced to writing, signed by the judge, and filed with the clerk of court\"" } ], "opinion_index": 0 }, { "cite": "130 N.C. App. 751", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11470348 ], "year": 1998, "pin_cites": [ { "page": "756", "parenthetical": "\"an order rendered in open court is not enforceable [and therefore not individually appealable] until it is 'entered,' i.e., until it is reduced to writing, signed by the judge, and filed with the clerk of court\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/130/0751-01" ] }, { "cite": "366 S.E.2d 512", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "516", "parenthetical": "the trial court must only consider those distributional factors raised by the evidence" } ], "opinion_index": 0 }, { "cite": "89 N.C. App. 445", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522677 ], "year": 1988, "pin_cites": [ { "page": "450", "parenthetical": "the trial court must only consider those distributional factors raised by the evidence" } ], "opinion_index": 0, "case_paths": [ "/nc-app/89/0445-01" ] }, { "cite": "331 S.E.2d 765", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "767", "parenthetical": "classification, evaluation, and distribution are separate and distinct steps to be followed by the trial court in an equitable distribution proceeding" } ], "opinion_index": 0 }, { "cite": "76 N.C. App. 134", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526769 ], "year": 1985, "pin_cites": [ { "page": "137", "parenthetical": "classification, evaluation, and distribution are separate and distinct steps to be followed by the trial court in an equitable distribution proceeding" } ], "opinion_index": 0, "case_paths": [ "/nc-app/76/0134-01" ] }, { "cite": "432 S.E.2d 720", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "725-26" } ], "opinion_index": 0 }, { "cite": "111 N.C. App. 321", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521878 ], "year": 1993, "pin_cites": [ { "page": "329-30" } ], "opinion_index": 0, "case_paths": [ "/nc-app/111/0321-01" ] }, { "cite": "479 S.E.2d 240", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "242", "parenthetical": "a spouse's contribution of his separate property as a gift to the marital estate, in that case property held by the entireties, is a distributional factor under subdivision (c)(12)" } ], "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", "parenthetical": "a spouse's contribution of his separate property as a gift to the marital estate, in that case property held by the entireties, is a distributional factor under subdivision (c)(12)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/125/0113-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 50-20", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "(c)(12)" } ], "opinion_index": 0 }, { "cite": "525 S.E.2d 820", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "824" } ], "opinion_index": 0 }, { "cite": "136 N.C. App. 707", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11241744 ], "year": 2000, "pin_cites": [ { "page": "713-14" } ], "opinion_index": 0, "case_paths": [ "/nc-app/136/0707-01" ] }, { "cite": "180 S.E.2d 482", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "485" } ], "opinion_index": 0 }, { "cite": "11 N.C. App. 57", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552552 ], "year": 1971, "pin_cites": [ { "page": "62" } ], "opinion_index": 0, "case_paths": [ "/nc-app/11/0057-01" ] }, { "cite": "324 S.E.2d 829", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "833", "parenthetical": "appellate review of an equitable distribution award \"is limited to a determination of whether there was a clear abuse of discretion\"" } ], "opinion_index": 0 }, { "cite": "312 N.C. 770", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4755941 ], "year": 1985, "pin_cites": [ { "page": "777", "parenthetical": "appellate review of an equitable distribution award \"is limited to a determination of whether there was a clear abuse of discretion\"" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0770-01" ] }, { "cite": "374 S.E.2d 376", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1988, "pin_cites": [ { "page": "384" }, { "page": "384" } ], "opinion_index": 0 }, { "cite": "323 N.C. 543", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2563389 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "556" }, { "page": "556" } ], "opinion_index": 0, "case_paths": [ "/nc/323/0543-01" ] }, { "cite": "358 S.E.2d 110", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "113", "parenthetical": "holding that the appellant should not be allowed to benefit on appeal when she was responsible for the delay in the entry of the divorce judgment" } ], "opinion_index": 0 }, { "cite": "86 N.C. App. 397", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12132142 ], "year": 1987, "pin_cites": [ { "page": "403", "parenthetical": "holding that the appellant should not be allowed to benefit on appeal when she was responsible for the delay in the entry of the divorce judgment" } ], "opinion_index": 0, "case_paths": [ "/nc-app/86/0397-01" ] }, { "cite": "536 S.E.2d 647", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2000, "pin_cites": [ { "page": "654", "parenthetical": "analyzing the appellant's due process rights" }, { "page": "654", "parenthetical": "holding nineteen months to be too long" } ], "opinion_index": 0 }, { "cite": "140 N.C. App. 303", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12126099 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "314" } ], "opinion_index": 0, "case_paths": [ "/nc-app/140/0303-01" ] } ], "analysis": { "cardinality": 827, "char_count": 22548, "ocr_confidence": 0.762, "pagerank": { "raw": 1.2019602949670033e-07, "percentile": 0.5939108805185167 }, "sha256": "77eb7c0b0ec6849be27d5347ba32a4fed8eb84596a1914c3079738b0429d4a54", "simhash": "1:e7b8462e7fea8468", "word_count": 3594 }, "last_updated": "2023-07-14T15:27:37.331987+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges CALABRIA and ELMORE concur." ], "parties": [ "ANNE LITTON WHITE [DAVIS], Plaintiff v. JOHN BLEVINS DAVIS, Defendant" ], "opinions": [ { "text": "BRYANT, Judge.\nAnne Litton White (plaintiff) appeals an order dated 1 December 1997 allowing John Blevins Davis (defendant) to use Robert N. Pulliam (Pulliam) as an expert, an order entered 21 March 2000 denying plaintiffs oral motion to recuse Pulliam as an expert, an order dated 31 October 2000 denying plaintiffs motion to amend the equitable distribution pretrial order, and an equitable distribution judgment entered 8 July 2002.\nOn 9 September 1994, plaintiff filed a complaint seeking custody of the parties\u2019 children, child support, and equitable distribution. The custody and support claims were resolved first, and orders with respect to those claims were entered on 19 July 1995 and 28 May 1996 respectively. On 13 November 1997, an equitable distribution pretrial order was entered containing stipulations of the parties as to the classification (marital or separate) and value of their property. With regard to disputed property values, the pretrial order contained the separate dollar amounts claimed by plaintiff and defendant. For some of these items, the corresponding alleged values were not provided and either plaintiff or defendant merely indicated that they were \u201cTBD\u201d (to be determined). The pretrial order provided that:\nin the event that either party hereto has not listed any value for any item(s) of property that is marital... as itemized in this PreTrial Order . . . such party shall be required to notify the other party hereto through counsel of her or his value(s) of such property at least thirty (30) days in advance of the commencement of the equitable distribution trial ... or upon the failure of such party to do so, the value(s) of such item(s) shall be the value(s) listed on this Pre-Trial Order by the other party hereto ....\nThe pretrial order was signed by the parties and the trial court.\nThe equitable distribution hearing commenced on 20 March 2000 with testimony on the value of the parties\u2019 respective medical practices and continued for a total of seventeen days over the course of two years. On 29 September 2000, plaintiff filed a motion to amend the pretrial order to include values for property she had previously marked as \u201cTBD\u201d in the pretrial order. The trial court denied her motion by order dated 31 October 2000. In its equitable distribution judgment entered 8 July 2002, the trial court concluded that an equal distribution of the marital property was equitable. Additional facts relevant to the analysis will be set out below.\nThe issues are whether: (I) plaintiff was prejudiced by an unreasonable delay in the proceedings and entry of the judgment; (II) the trial court abused its discretion in denying plaintiffs motion to amend the pretrial order; (III) Pulliam, defendant\u2019s expert, was barred from testifying based on a conflict of interest; (IV) the trial court abused its discretion in considering as a distributional factor in defendant\u2019s favor his 85% separate property interest in his 72% ownership of Salem Urological, P.A.; and (V) the trial court abused its discretion in failing to consider as a distributional factor the passive post-separation increase in defendant\u2019s stock in Carolina Physicians Associates, P.A. and (VI) in Salem Trust Bank.\nI\nIn her first assignment of error, plaintiff argues her due process rights were violated and she was prejudiced by the unreasonable delay of (A) the trial proceedings and (B) entry of the equitable distribution judgment. Plaintiff points out that: the equitable distribution hearing did not commence until five years after the filing of her complaint; the 17 hearing dates were stretched out over the course of two years; and the equitable distribution judgment was not entered until seven months after the conclusion of the trial and four months after the trial court\u2019s oral announcement of its final decision in open court. In support of her proposition, plaintiff relies on this Court\u2019s holding in Wall v. Wall, 140 N.C. App. 303, 536 S.E.2d 647 (2000), which considered a nineteen-month delay between the date of trial and the date of disposition \u201cmore than a de minimis delay,\u201d id. at 314, 536 S.E.2d at 654 (analyzing the appellant\u2019s due process rights).\nA\nTrial Delay\nIn the case sub judice, it appears that much of the delay in the equitable distribution proceeding was caused by a combination of the magnitude of the case, the sheer volume of the assets at issue, and plaintiff\u2019s own actions. See Banner v. Banner, 86 N.C. App. 397, 403, 358 S.E.2d 110, 113 (1987) (holding that the appellant should not be allowed to benefit on appeal when she was responsible for the delay in the entry of the divorce judgment).\nAfter filing her complaint for custody, child support, and equitable distribution on 9 September 1994, hearings were first held on plaintiff\u2019s child custody and support claims. On the custody issue, a consent order was entered by the parties on 19 July 1995. An order for child support was entered on 28 May 1996. Thereafter, plaintiff filed four separate motions in the cause to modify the orders, all of which the trial court denied on 21 December 1998. Dealing with the issues of child custody and support prior to equitable distribution was a justifiable ground for the initial delay of the equitable distribution portion of the trial.\nFurther, according to the local rules for the Twenty-First Judicial District, Forsyth County, North Carolina, plaintiff bore the burden of producing the initial draft of the equitable distribution pretrial order, and numerous drafts were circulated between the parties until they reached agreement on the final version. The final pretrial order, entered 13 November 1997, spanned sixty-three pages and addressed 664 items of property. Following completion of this expansive document, the trial court\u2019s focus shifted back to the child custody and support issues through plaintiff\u2019s filing of her motions in the cause to modify the custody and support orders, which the trial court denied on 21 December 1998. Thereafter, the trial court scheduled the commencement of the equitable distribution hearing for 20 September 1999 but had to postpone the date when plaintiff\u2019s attorney and the trial court discovered a scheduling conflict.\nDuring the course of the equitable distribution proceeding, for which hearings commenced on 20 March 2000, plaintiff employed seven different attorneys, who were discharged or withdrew at various stages throughout the trial. Plaintiff also appealed from an interlocutory order of the trial court, thereby further delaying the equitable distribution proceeding until the appeal was dismissed by order of this Court filed 2 April 2001. In addition, the trial court was forced to move the conclusion date for the trial to a later date after plaintiff withdrew her consent to a previously announced settlement agreement. Based on these factors, we hold that plaintiff\u2019s due process rights were not violated by an unreasonable delay in the trial proceedings as any delay appears to have resulted from the complexity of the case and plaintiff\u2019s own actions.\nB\nJudgment Delay\nThe parties acknowledge that the trial court orally rendered its decision in this case on 25 February 2002, within three months of the last trial date. Defendant\u2019s attorney then prepared the proposed draft of the judgment for plaintiff\u2019s review. After plaintiff requested and received extensions of time to review the extensive draft, the equitable distribution judgment, which includes twenty-five pages of findings and conclusions as well as an additional forty-nine pages of property schedules, was filed on 8 July 2002. Considering the amount of property at issue, we do not deem the time lapse of four months between the trial court\u2019s announcement of its decision in open court and formal entry of the judgment to be unreasonable under the circumstances of this case. Cf. Wall, 140 N.C. App. at 314, 536 S.E.2d at 654 (holding nineteen months to be too long). Accordingly, this assignment of error is overruled.\nII\nPlaintiff next assigns error to the trial court\u2019s denial of her motion to amend the pretrial order to supplement values she had only marked as \u201cTBD\u201d at the time the order was entered. Plaintiff acknowledges that she failed to comply with the notice provision contained in the pretrial order and did not move to amend until the hearing had already commenced. In her brief to this Court, plaintiff, however, argues that she was nevertheless entitled to the amendment because evidence on the items of property in question was not heard until several months after her request and defendant therefore would not have been prejudiced by the amendment. This argument is of no avail because at the time the trial court denied plaintiff\u2019s 29 September 2000 motion, the hearing was scheduled for conclusion during the week of 20 November 2000. It was only on 15 November 2000, through the filing by plaintiff of an interlocutory appeal from the trial court\u2019s order denying her motion to amend, that the continuation of the hearing was delayed until 13 August 2001. Consequently, had the trial court granted plaintiff\u2019s motion, defendant would not have had the amount of time to prepare as plaintiff now contends. This assignment of error is therefore without merit.\nIII\nPlaintiff also argues the trial court abused its discretion in allowing Pulliam to testify as defendant\u2019s expert because, having previously been hired as a joint expert for the parties, Pulliam\u2019s representation of defendant created a conflict of interest.\nWe begin our analysis by noting that plaintiff has not cited any authority in support of her proposition that the use by one party of a former, privately obtained joint expert creates a disqualifying conflict of interest between the expert and the other party. This Court has also been unable to find any authority on point but concludes that the issue can be resolved based solely on the facts of this case.\nThe determination of whether expert opinion testimony is admissible is within the sound discretion of the trial court. McLean v. McLean, 323 N.C. 543, 556, 374 S.E.2d 376, 384 (1988). In this case, shortly after their separation, the parties employed Pulliam as a neutral expert to evaluate the parties\u2019 respective medical practices for purposes of equitable distribution and provided him with data on their medical practices. In October 1996, after receiving preliminary calculations from Pulliam, plaintiff terminated her contract with Pulliam and objected to his continued involvement as defendant\u2019s expert in the equitable distribution action. The trial court entered an order dated 1 December 1997 finding:\n[T]he parties\u2019 original agreement to jointly employ . . . Pulliam to evaluate their respective individual medical practices ... as an independent^] impartial evaluator did not create a confidential relationship between . . . Pulliam with either party hereto .... [T]here would be no conflict of interest, and no prejudice to . . . [p]laintiff, for . . . Pulliam to continue to evaluate the parties\u2019 respective individual medical practices as an expert for . . . [defendant in this equitable distribution action ....\nThe trial court then granted defendant permission to continue using Pulliam\u2019s services and ordered:\n2. That. . . Pulliam shall be entitled to utilize all data previously provided to him by both parties . . . and to share all such data received by him from both parties hereto with . . . [defendant and with this Court;\n3. That . . . [p]laintiff shall be entitled to utilize and to provide to her substitute expert witness all data previously provided to . . . Pulliam by both parties hereto ....\nWe agree with the trial court\u2019s reasoning. In hiring Pulliam as a joint expert, plaintiff had no expectation of confidentiality. The data collected by Pulliam was always intended to be shared by the parties and thus could not have resulted in a conflict of interest after plaintiff terminated her contract with Pulliam. Moreover, in light of the trial court\u2019s instruction to make available to each side the data previously provided to Pulliam, neither party suffered prejudice from Pulliam\u2019s continued representation of defendant. As such, the trial court did not abuse its discretion in allowing Pulliam to testify as defendant\u2019s expert at trial. See McLean, 323 N.C. at 556, 374 S.E.2d at 384.\nIV\nPlaintiff further contends the trial court abused its discretion in considering as a distributional factor in defendant\u2019s favor his 85% separate property interest of his 72% ownership in Salem Urological, P.A. because the parties had stipulated in the pretrial order that defendant\u2019s interest in the medical practice was to be classified as marital property. See White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985) (appellate review of an equitable distribution award \u201cis limited to a determination of whether there was a clear abuse of discretion\u201d).\n\u201cAn admission in a pleading or a stipulation admitting a material fact becomes a judicial admission in a case and eliminates the necessity of submitting an issue in regard thereto to the jury.\u201d Crowder v. Jenkins, 11 N.C. App. 57, 62, 180 S.E.2d 482, 485 (1971). It has long been established that judicial admissions are binding on the pleader as well as the court \u201cunless modified at the trial to prevent manifest injustice.\u201d Inman v. Inman, 136 N.C. App. 707, 713-14, 525 S.E.2d 820, 824 (2000); see N.C.G.S. \u00a7 1A-1, Rule 16(a) (2001).\nIn this case, defendant had moved the trial court on 20 March 2000 to change the classification in the pretrial order of his interest in Salem Urological, P.A. from marital to separate property. The trial court denied defendant\u2019s motion but allowed Pulliam to testify, for the limited purpose of establishing distributional factors, that 85% of defendant\u2019s 72% interest in the practice was gifted to defendant by his father and therefore remained his separate property. In the equitable distribution judgment, the trial court found as fact, and consistent with the pretrial order, that defendant\u2019s interest in Salem Urological, P.A. constituted marital property. Based on Pulliam\u2019s testimony though, the trial court then considered as a distributional factor under N.C. Gen. Stat. \u00a7 50-20(c)(12), allowing for the consideration of \u201c[a]ny other [distributional] factor which the court finds to be just and proper,\u201d N.C.G.S. \u00a7 50-20(c)(12) (2001) (same provision as in 1994), that:\nthe value of marital property being distributed to . . . [defendant would have been reduced by $207,400.00 if. .. [defendant's medical practice had in fact been placed on the proper Pre-Trial Order Schedule before such Pre-Trial Order was entered by the [trial] [c]ourt (which would have increased the amount of the distributive award payable by . . . [p]laintiff to . . . [defendant).\nIn weighing the various distributional factors found in favor of both plaintiff and defendant, the trial court ultimately concluded that an equal division of the marital property was fair and equitable.\nIt is clear from the judgment that the trial court did not change the stipulated classification of the medical practice but, in its discretion, granted defendant the benefit of a distributional factor out of fairness considerations. As such a consideration was proper under section 50-20(c)(12) and fell within the spirit of Inman (allowing for the modification of judicial admissions to prevent manifest injustice), we see no abuse of discretion in the trial court\u2019s treatment of defendant\u2019s separate property interest in the medical practice as a distributional factor. We further note that, in finding distributional factors, the trial court has the discretion to consider inequities based on the classification of property as marital and that this does not have the effect of undermining the classification of the property, which will still be, and in this case was in fact, distributed as marital. See, e.g., Collins v. Collins, 125 N.C. App. 113, 116, 479 S.E.2d 240, 242 (1997) (a spouse\u2019s contribution of his separate property as a gift to the marital estate, in that case property held by the entireties, is a distributional factor under subdivision (c)(12)); Minter v. Minter, 111 N.C. App. 321, 329-30, 432 S.E.2d 720, 725-26 (1993) (holding that even though the trial court did not abuse its discretion in concluding that a spouse had failed to meet his burden of proving certain property to be his separate property, the trial court should have considered this separate property contribution to the marital estate as a distributional factor); see also Cable v. Cable, 76 N.C. App. 134, 137, 331 S.E.2d 765, 767 (1985) (classification, evaluation, and distribution are separate and distinct steps to be followed by the trial court in an equitable distribution proceeding).\nV\nPlaintiff further asserts the trial court abused its discretion in failing to consider as a distributional factor the passive post-separation increase in defendant\u2019s stock in Carolina Physicians Associates, PA. This argument, however, does not comport with the assignment of error referenced by plaintiff, which only attacks the trial court\u2019s date-of-separation valuation of the stock. Accordingly, plaintiffs argument is deemed abandoned. See N.C.R. App. P. 10(a) (\u201cthe scope of review on appeal is confined to a consideration of those assignments of error set out in the record on appeal\u201d).\nVI\nFinally, plaintiff contends the trial court abused its discretion in failing to consider as a distributional factor the post-separation increase in the value of Salem Trust Bank stock.\nDuring the hearing on 15 August 2001, the trial court indicated its willingness to consider this increase in value as a distributional factor and told plaintiff it would accept an offer of proof as to the post-separation value of the stock if she were to make one. In her brief to this Court, plaintiff does not assert and a.review of the transcript does not indicate that (1) her counsel presented evidence on the amount of the post-separation increase of the stock or (2) even argued for the finding of such a distributional factor when the trial court reached the distributional portion of the trial in November 2001. In light of plaintiff\u2019s failure to pursue the issue at trial and offer any evidence on the alleged increase in the stock value, the trial court did not abuse its discretion in failing to find the contended distributional factor. See Truesdale v. Truesdale, 89 N.C. App. 445, 450, 366 S.E.2d 512, 516 (1988) (the trial court must only consider those distributional factors raised by the evidence).\nPlaintiff\u2019s remaining assignments of error not raised in her brief are deemed abandoned. See N.C.R. App. P. 28(a).\nAffirmed.\nJudges CALABRIA and ELMORE concur.\n. Plaintiff cannot pursue her appeal of this order, which involved an oral denial of her motion in open court. See N.C.R. App. P. 3(a) (\u201c[a]ny party is entitled to appeal from a judgment or order . . . rendered in a civil action\u201d); West v. Marko, 130 N.C. App. 751, 756, 504 S.E.2d 571, 574 (1998) (\u201can order rendered in open court is not enforceable [and therefore not individually appealable] until it is \u2018entered,\u2019 i.e., until it is reduced to writing, signed by the judge, and filed with the clerk of court\u201d).\n. The interlocutory appeal resulted in a delay of the hearing until 13 August 2001.\n. Because plaintiff filed her complaint in 1994, her equitable distribution claim is governed by the law of that time.", "type": "majority", "author": "BRYANT, Judge." } ], "attorneys": [ "Elliot Pishko Morgan, P.A., by David C. Pishko, for plaintiff-appellant.", "Morrow Alexander Task Kurtz & Porter, by Gary B. Task, for defendant-appellee." ], "corrections": "", "head_matter": "ANNE LITTON WHITE [DAVIS], Plaintiff v. JOHN BLEVINS DAVIS, Defendant\nNo. COA03-359\n(Filed 17 February 2004)\n1. Divorce\u2014 equitable distribution \u2014 delays\u2014no due process violation\nPlaintiffs due process rights were not violated by delays in her equitable distribution action because those delays were caused by the complexity of the case and her own actions.\n2. Divorce\u2014 equitable distribution \u2014 delay between announcement and entry of judgment\nA lapse of four months between the announcement of the court\u2019s decision in open court and the formal entry of judgment was not unreasonable in an equitable distribution action involving extensive property.\n3. Divorce\u2014 equitable distribution \u2014 pretrial order \u2014 motion to amend values \u2014 timeliness\nThere was no error in the denial of plaintiffs untimely motion to amend her pretrial equitable distribution order to supplement values she had marked as TBD (to be determined). The time which plaintiff claims as available to defendant for his response resulted from plaintiffs interlocutory appeal of this denial and would not have been available had the motion been granted.\n4. Witnesses\u2014 expert \u2014 defense witness \u2014 originally hired as joint witness\nTestimony from an expert witness for defendant who had originally been hired as an expert for both parties was properly admitted in an equitable distribution proceeding. Plaintiff had no expectation of privacy in hiring the witness because the data collected by the witness was always intended to be shared by both parties.\n5. Divorce\u2014 equitable distribution \u2014 interest in medical practice \u2014 distributional factor \u2014 stipulation of marital classification\nAn equitable distribution defendant\u2019s interest in his medical practice was properly considered a distributional factor in his favor even though the parties had stipulated that the interest was to be classified as marital property. The trial court did not change the stipulated classification, but granted defendant the benefit of the distributional factor as a matter of fairness after defendant\u2019s expert testified that 85% of defendant\u2019s 72% interest in the practice had been gifted to him by his father and remained his separate property.\n6. Appeal and Error\u2014 assignment of error \u2014 consistency with argument\nAn equitable distribution argument was deemed abandoned because it did not comport with the assignment of error.\n7. Divorce\u2014 equitable distribution \u2014 post-separation increase in value \u2014 not pursued at trial\nThere was no abuse of discretion in an equitable distribution in not finding a distributional factor not pursued at trial.\nAppeal by plaintiff from order dated 1 December 1997, nunc pro tunc March 10, 1997, orally entered order on 21 March 2000, order filed 31 October 2000, nunc pro tunc October 10, 2000, and judgment filed 8 July 2002 by Judge William B. Reingold in Forsyth County District Court. Heard in the Court of Appeals 3 December 2003.\nElliot Pishko Morgan, P.A., by David C. Pishko, for plaintiff-appellant.\nMorrow Alexander Task Kurtz & Porter, by Gary B. Task, for defendant-appellee." }, "file_name": "0021-01", "first_page_order": 51, "last_page_order": 60 }