{ "id": 4343347, "name": "REBECCA W. ROMULUS, Plaintiff v. JOHN M. ROMULUS, Defendant", "name_abbreviation": "Romulus v. Romulus", "decision_date": "2011-09-20", "docket_number": "No. COA10-1453", "first_page": "495", "last_page": "529", "citations": [ { "type": "official", "cite": "215 N.C. App. 495" } ], "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": "175 N.C. App. 509", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8352549 ], "opinion_index": -1, "case_paths": [ "/nc-app/175/0509-01" ] }, { "cite": "304 N.C. 725", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571202, 8571266, 8571300, 8571179, 8571230 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/304/0725-02", "/nc/304/0725-04", "/nc/304/0725-05", "/nc/304/0725-01", "/nc/304/0725-03" ] }, { "cite": "623 S.E.2d 800", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634748 ], "weight": 16, "year": 2006, "pin_cites": [ { "page": "802-803", "parenthetical": "citing McLean v. McLean. 323 N.C. 543, 551-52, 374 S.E.2d 376, 381-82 (1988) and 3 Suzanne Reynolds, Lee's North Carolina Family Law \u00a7 12.33, at 12-100 (5th ed. 2002" }, { "page": "803" }, { "page": "802" }, { "page": "803" }, { "parenthetical": "footnote and quotation marks omitted" }, { "page": "803" }, { "page": "803" }, { "page": "803" } ], "opinion_index": 0, "case_paths": [ "/se2d/623/0800-01" ] }, { "cite": "668 S.E.2d 603", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12642230 ], "year": 2008, "pin_cites": [ { "page": "607", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/668/0603-01" ] }, { "cite": "605 S.E.2d 222", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12632087 ], "weight": 4, "year": 2004, "pin_cites": [ { "page": "224", "parenthetical": "citation and quotation marks omitted" }, { "parenthetical": "citation omitted" }, { "page": "224" }, { "page": "224", "parenthetical": "citation and quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/605/0222-01" ] }, { "cite": "167 N.C. App. 250", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8411073, 12632087 ], "weight": 3, "year": 2004, "pin_cites": [ { "page": "253", "parenthetical": "citation and quotation marks omitted" }, { "page": "253" }, { "page": "253" } ], "opinion_index": 0, "case_paths": [ "/nc-app/167/0250-01", "/se2d/605/0222-01" ] }, { "cite": "694 S.E.2d 200", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "opinion_index": 0 }, { "cite": "363 N.C. 853", "category": "reporters:state", "reporter": "N.C.", "year": 2010, "opinion_index": 0 }, { "cite": "686 S.E.2d 913", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "pin_cites": [ { "page": "916" } ], "opinion_index": 0 }, { "cite": "201 N.C. App. 559", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4173597 ], "year": 2009, "pin_cites": [ { "page": "563" } ], "opinion_index": 0, "case_paths": [ "/nc-app/201/0559-01" ] }, { "cite": "450 S.E.2d 744", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "746", "parenthetical": "\"A party may not complain of action which he induced.\" (citations omitted)" } ], "opinion_index": 0 }, { "cite": "338 N.C. 508", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2519615 ], "year": 1994, "pin_cites": [ { "page": "512", "parenthetical": "\"A party may not complain of action which he induced.\" (citations omitted)" } ], "opinion_index": 0, "case_paths": [ "/nc/338/0508-01" ] }, { "cite": "318 S.E.2d 346", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "348" } ], "opinion_index": 0 }, { "cite": "69 N.C. App. 755", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527018 ], "year": 1984, "pin_cites": [ { "page": "757" } ], "opinion_index": 0, "case_paths": [ "/nc-app/69/0755-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 50-16.4", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "84 So., 892", "category": "reporters:state_regional", "reporter": "So.", "case_ids": [ 578220 ], "opinion_index": 0, "case_paths": [ "/la/147/0329-01" ] }, { "cite": "147 La., 331", "category": "reporters:state", "reporter": "La.", "opinion_index": 0 }, { "cite": "33 S.E.2d 489", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1945, "pin_cites": [ { "page": "490", "parenthetical": "quotation marks omitted" }, { "page": "491", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "225 N.C. 83", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8600361 ], "year": 1945, "pin_cites": [ { "page": "85", "parenthetical": "quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/225/0083-01" ] }, { "cite": "564 S.E.2d 591", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "592-93" } ], "opinion_index": 0 }, { "cite": "151 N.C. App. 130", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9079582 ], "year": 2002, "pin_cites": [ { "page": "132-33" } ], "opinion_index": 0, "case_paths": [ "/nc-app/151/0130-01" ] }, { "cite": "510 S.E.2d 689", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "690" } ], "opinion_index": 0 }, { "cite": "132 N.C. App. 217", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11237382 ], "year": 1999, "pin_cites": [ { "page": "219" } ], "opinion_index": 0, "case_paths": [ "/nc-app/132/0217-01" ] }, { "cite": "224 S.E.2d 284", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1976, "pin_cites": [ { "page": "286" } ], "opinion_index": 0 }, { "cite": "29 N.C. App. 348", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8555779 ], "weight": 2, "year": 1976, "pin_cites": [ { "page": "349" } ], "opinion_index": 0, "case_paths": [ "/nc-app/29/0348-01" ] }, { "cite": "68 S.E.2d 247", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1951, "opinion_index": 0 }, { "cite": "234 N.C. 654", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625463 ], "year": 1951, "opinion_index": 0, "case_paths": [ "/nc/234/0654-01" ] }, { "cite": "302 S.E.2d 476", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1983, "pin_cites": [ { "page": "479", "parenthetical": "citing Mallard v. Mallard, 234 N.C. 654, 68 S.E.2d 247 (1951) and Earles v. Earles, 29 N.C. App. 348, 224 S.E.2d 284 (1976)" }, { "page": "479" } ], "opinion_index": 0 }, { "cite": "62 N.C. App. 291", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521905 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "294", "parenthetical": "citing Mallard v. Mallard, 234 N.C. 654, 68 S.E.2d 247 (1951) and Earles v. Earles, 29 N.C. App. 348, 224 S.E.2d 284 (1976)" }, { "page": "294" } ], "opinion_index": 0, "case_paths": [ "/nc-app/62/0291-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 50-6", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 14.27.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "pin_cites": [ { "page": "(4)" }, { "page": "(4)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 14-27.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 2009, "pin_cites": [ { "page": "(4)" }, { "page": "(5)" } ], "opinion_index": 0 }, { "cite": "409 S.E.2d 897", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1991, "pin_cites": [ { "page": "900" } ], "opinion_index": 0 }, { "cite": "330 N.C. 143", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2509699 ], "year": 1991, "pin_cites": [ { "page": "148-49" } ], "opinion_index": 0, "case_paths": [ "/nc/330/0143-01" ] }, { "cite": "225 S.E.2d 324", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "290 N.C. 95", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560385, 8560421, 8560434, 8560371, 8560405 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc/290/0095-02", "/nc/290/0095-04", "/nc/290/0095-05", "/nc/290/0095-01", "/nc/290/0095-03" ] }, { "cite": "222 S.E.2d 704", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1976, "pin_cites": [ { "page": "706", "parenthetical": "footnote added" } ], "opinion_index": 0 }, { "cite": "28 N.C. App. 713", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552191 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc-app/28/0713-01" ] }, { "cite": "61 S.E.2d 107", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1950, "pin_cites": [ { "page": "108" } ], "opinion_index": 0 }, { "cite": "232 N.C. 374", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8601837 ], "year": 1950, "pin_cites": [ { "page": "375-76" } ], "opinion_index": 0, "case_paths": [ "/nc/232/0374-01" ] }, { "cite": "63 N.C. 7", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11276106 ], "opinion_index": 0, "case_paths": [ "/nc/63/0007-01" ] }, { "cite": "65 N.C. 466", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1955243 ], "opinion_index": 0, "case_paths": [ "/nc/65/0466-01" ] }, { "cite": "41 S.E. 789", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "130 N.C. 697", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11274961 ], "opinion_index": 0, "case_paths": [ "/nc/130/0697-01" ] }, { "cite": "536 S.E.2d 642", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "644", "parenthetical": "emphasis in original" } ], "opinion_index": 0 }, { "cite": "140 N.C. App. 369", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12127448 ], "year": 2000, "pin_cites": [ { "page": "371", "parenthetical": "emphasis in original" } ], "opinion_index": 0, "case_paths": [ "/nc-app/140/0369-01" ] }, { "cite": "290 S.E.2d 653", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "658" } ], "opinion_index": 0 }, { "cite": "305 N.C. 446", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571060 ], "year": 1982, "pin_cites": [ { "page": "453" } ], "opinion_index": 0, "case_paths": [ "/nc/305/0446-01" ] }, { "cite": "193 S.E.2d 79", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "pin_cites": [ { "page": "82" } ], "opinion_index": 0 }, { "cite": "282 N.C. 373", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565263 ], "year": 1972, "pin_cites": [ { "page": "379" } ], "opinion_index": 0, "case_paths": [ "/nc/282/0373-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 50-16.3", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 50-16", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 18, "opinion_index": 0 }, { "cite": "322 S.E.2d 427", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "430" } ], "opinion_index": 0 }, { "cite": "71 N.C. App. 405", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525466 ], "year": 1984, "pin_cites": [ { "page": "407" } ], "opinion_index": 0, "case_paths": [ "/nc-app/71/0405-01" ] }, { "cite": "325 S.E.2d 260", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "266" } ], "opinion_index": 0 }, { "cite": "72 N.C. App. 372", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526819 ], "year": 1985, "pin_cites": [ { "page": "376" } ], "opinion_index": 0, "case_paths": [ "/nc-app/72/0372-01" ] }, { "cite": "425 S.E.2d 696", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "parenthetical": "adopting J. Wynn's dissent" } ], "opinion_index": 0 }, { "cite": "333 N.C. 342", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2548512 ], "year": 1993, "pin_cites": [ { "parenthetical": "adopting J. Wynn's dissent" } ], "opinion_index": 0, "case_paths": [ "/nc/333/0342-01" ] }, { "cite": "415 S.E.2d 565", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "572", "parenthetical": "Wynn, J., dissenting" } ], "opinion_index": 0 }, { "cite": "106 N.C. App. 91", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 5313691 ], "year": 1992, "pin_cites": [ { "page": "103", "parenthetical": "Wynn, J., dissenting" } ], "opinion_index": 0, "case_paths": [ "/nc-app/106/0091-01" ] }, { "cite": "91 S.E.2d 673", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1956, "pin_cites": [ { "page": "682" } ], "opinion_index": 0 }, { "cite": "243 N.C. 525", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626028 ], "year": 1956, "pin_cites": [ { "page": "536-37" } ], "opinion_index": 0, "case_paths": [ "/nc/243/0525-01" ] }, { "cite": "141 A. 159", "category": "reporters:state_regional", "reporter": "A.", "pin_cites": [ { "page": "160" } ], "opinion_index": 0 }, { "cite": "292 Pa. 339", "category": "reporters:state", "reporter": "Pa.", "case_ids": [ 1109721 ], "opinion_index": 0, "case_paths": [ "/pa/292/0339-01" ] }, { "cite": "394 S.E.2d 267", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 9, "year": 1990, "pin_cites": [ { "page": "269-70" }, { "page": "269-70" }, { "page": "270" }, { "page": "270" }, { "page": "270-71", "parenthetical": "emphasis added" }, { "page": "270" } ], "opinion_index": 0 }, { "cite": "100 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526211 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "7-8" } ], "opinion_index": 0, "case_paths": [ "/nc-app/100/0001-01" ] }, { "cite": "363 S.E.2d 95", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1987, "pin_cites": [ { "page": "98-99" }, { "page": "98-99" }, { "page": "232" }, { "page": "98-99" } ], "opinion_index": 0 }, { "cite": "88 N.C. App. 285", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358145 ], "weight": 3, "year": 1987, "pin_cites": [ { "page": "289-90" }, { "page": "290" }, { "page": "290" } ], "opinion_index": 0, "case_paths": [ "/nc-app/88/0285-01" ] }, { "cite": "288 S.E.2d 805", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "282 S.E.2d 529", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "54 N.C. App. 94", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520307 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc-app/54/0094-01" ] }, { "cite": "180 S.E.2d 450", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "11 N.C. App. 133", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553167 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc-app/11/0133-01" ] }, { "cite": "353 S.E.2d 107", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1987, "opinion_index": 0 }, { "cite": "319 N.C. 103", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4743692, 4740912, 4746258, 4740023, 4740696 ], "weight": 3, "year": 1987, "opinion_index": 0, "case_paths": [ "/nc/319/0103-04", "/nc/319/0103-02", "/nc/319/0103-03", "/nc/319/0103-01", "/nc/319/0103-05" ] }, { "cite": "347 S.E.2d 871", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 1986, "pin_cites": [ { "page": "872" }, { "page": "872" }, { "page": "872" }, { "page": "872" }, { "page": "872", "parenthetical": "although donor spouse testified that she did not intend a gift there was evidence to support trial court's finding that the property was marital" } ], "opinion_index": 0 }, { "cite": "82 N.C. App. 738", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8359921 ], "weight": 4, "year": 1986, "pin_cites": [ { "page": "739" }, { "page": "740" }, { "page": "739-40" } ], "opinion_index": 0, "case_paths": [ "/nc-app/82/0738-01" ] }, { "cite": "348 S.E.2d 593", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "595", "parenthetical": "citation and quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "318 N.C. 404", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4732110 ], "year": 1986, "pin_cites": [ { "page": "406", "parenthetical": "citation and quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/318/0404-01" ] }, { "cite": "326 S.E.2d 863", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "870", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "313 N.C. 63", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4719540 ], "year": 1985, "pin_cites": [ { "page": "74", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/313/0063-01" ] }, { "cite": "327 S.E.2d 910", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1985, "pin_cites": [ { "page": "916-17" }, { "page": "916-17" } ], "opinion_index": 0 }, { "cite": "74 N.C. App. 144", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523505 ], "weight": 3, "year": 1985, "pin_cites": [ { "page": "154" }, { "page": "154" } ], "opinion_index": 0, "case_paths": [ "/nc-app/74/0144-01" ] }, { "cite": "377 S.E.2d 767", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 8, "year": 1989, "pin_cites": [ { "page": "768", "parenthetical": "quoting McLeod v. McLeod. 74 N.C. App. 144, 154, 327 S.E.2d 910, 916-17 (1985)" }, { "page": "768-69", "parenthetical": "defendant's testimony alone \"certainly\" did not rise to the level of clear, cogent, and convincing evidence" }, { "page": "767, 768" }, { "page": "767" }, { "page": "768-69" }, { "page": "768-69", "parenthetical": "trial court did not err in determining that parties' home .was marital property where only competent evidence that a gift was not intended was donor's testimony" }, { "page": "768-69", "parenthetical": "defendant's testimony alone \"certainly\" did not rise to the level of clear, cogent, and convincing evidence" } ], "opinion_index": 0 }, { "cite": "93 N.C. App. 229", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527976 ], "weight": 6, "year": 1989, "pin_cites": [ { "page": "231", "parenthetical": "quoting McLeod v. McLeod. 74 N.C. App. 144, 154, 327 S.E.2d 910, 916-17 (1985)" }, { "page": "232" }, { "page": "230, 232" }, { "page": "232", "parenthetical": "trial court did not err in determining that parties' home .was marital property where only competent evidence that a gift was not intended was donor's testimony" }, { "page": "232", "parenthetical": "defendant's testimony alone \"certainly\" did not rise to the level of clear, cogent, and convincing evidence" } ], "opinion_index": 0, "case_paths": [ "/nc-app/93/0229-01" ] }, { "cite": "374 S.E.2d 376", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 10, "year": 1988, "pin_cites": [ { "page": "381-82" }, { "page": "378-79" }, { "page": "381-82", "parenthetical": "footnote omitted" }, { "page": "383" }, { "page": "383" }, { "page": "382" } ], "opinion_index": 0 }, { "cite": "323 N.C. 543", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2563389 ], "weight": 6, "year": 1988, "pin_cites": [ { "page": "551-52" }, { "page": "546-47" }, { "page": "555" }, { "page": "552" } ], "opinion_index": 0, "case_paths": [ "/nc/323/0543-01" ] }, { "cite": "446 S.E.2d 17", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "25", "parenthetical": "noting that \"it is within the trial court's discretion to determine the weight and credibility that should be given to all evidence that is presented during the trial.\"" } ], "opinion_index": 0 }, { "cite": "337 N.C. 344", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2551639 ], "year": 1994, "pin_cites": [ { "page": "357", "parenthetical": "noting that \"it is within the trial court's discretion to determine the weight and credibility that should be given to all evidence that is presented during the trial.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/337/0344-01" ] }, { "cite": "193 N.C. App. 657", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4161983 ], "year": 2008, "pin_cites": [ { "page": "661", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/193/0657-01" ] }, { "cite": "344 S.E.2d 100", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1986, "pin_cites": [ { "page": "112" }, { "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "81 N.C. App. 159", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522057 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "176" } ], "opinion_index": 0, "case_paths": [ "/nc-app/81/0159-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 50-20", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 7, "pin_cites": [ { "page": "(b)(4)" }, { "page": "(b)(4)" }, { "page": "(b)(2)" }, { "page": "(f)" }, { "page": "(f)" }, { "page": "(f)" } ], "opinion_index": 0 }, { "cite": "436 S.E.2d 856", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1993, "pin_cites": [ { "page": "861" }, { "page": "861" } ], "opinion_index": 0 }, { "cite": "112 N.C. App. 722", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523699 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "729" }, { "page": "729" } ], "opinion_index": 0, "case_paths": [ "/nc-app/112/0722-01" ] }, { "cite": "582 S.E.2d 628", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "630", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "159 N.C. App. 186", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8954872 ], "year": 2003, "pin_cites": [ { "page": "187", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/159/0186-01" ] }, { "cite": "175 N.C. App. 509", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8352549 ], "weight": 4, "pin_cites": [ { "page": "513", "parenthetical": "citing McLean v. McLean. 323 N.C. 543, 551-52, 374 S.E.2d 376, 381-82 (1988) and 3 Suzanne Reynolds, Lee's North Carolina Family Law \u00a7 12.33, at 12-100 (5th ed. 2002" }, { "page": "514-15" } ], "opinion_index": 0, "case_paths": [ "/nc-app/175/0509-01" ] } ], "analysis": { "cardinality": 2014, "char_count": 86063, "ocr_confidence": 0.74, "pagerank": { "raw": 2.1498166318303165e-07, "percentile": 0.7683691211340893 }, "sha256": "af22d4f51227cfadfbf46f69c4cc29c827349820922e60bf7dd70e5ec56ccb09", "simhash": "1:bbab50a6366e9d52", "word_count": 14152 }, "last_updated": "2023-07-14T18:49:09.394868+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges HUNTER, Robert C. and HUNTER, JR., Robert N. concur." ], "parties": [ "REBECCA W. ROMULUS, Plaintiff v. JOHN M. ROMULUS, Defendant" ], "opinions": [ { "text": "STROUD, Judge.\nThe trial court entered a judgment and order addressing the claims and counterclaims of the parties regarding child support, alimony, equitable distribution, and attorney fees, all of which were tried in the same trial, conducted on 30 June 2009, 1-2 July 2009, 11 September 2009, and 9 October 2009. The trial court entered an order addressing only equitable distribution, and one day later the trial court entered an order addressing the other claims, including denial of plaintiffs claims for alimony and attorney fees. Defendant appealed and plaintiff cross-appealed from the order regarding equitable distribution and the order denying alimony for plaintiff. Defendant\u2019s appeal raises issues regarding classification of divisible and separate property, while plaintiff\u2019s appeal raises issues regarding marital misconduct as a bar to alimony. For the reasons as discussed below, we remand the equitable distribution order to the trial court for additional findings of fact and conclusions of law as to the Darlington Avenue property and otherwise affirm the equitable distribution order. As to the denial of alimony, we affirm the trial court\u2019s conclusion that plaintiff is barred from alimony by her uncondoned \u201cillicit sexual behavior\u201d during the marriage, despite the trial court\u2019s findings as to defendant\u2019s physical abuse of plaintiff and their children. Our legislature has decreed that even one fleeting incident of \u201cillicit sexual behavior\u201d by a dependent spouse automatically bars her from an alimony award, even if the supporting spouse has committed serious, indeed criminal, physical abuse, against his wife and children throughout the marriage, and we have no authority to question the legislature\u2019s wisdom in adopting this rule.\nI. Background\nThe parties were married on 27 August 1988 and separated on 1 July 2006. On 12 April 2007, Rebecca Romulus (\u201cplaintiff\u2019) filed a complaint alleging claims for postseparation support, alimony, child custody, child support, and equitable distribution; on 27 April 2007, John Romulus (\u201cdefendant\u201d) filed his answer and counterclaims for child custody, child support, and equitable distribution. On 30 June 2009, the trial court began the hearing on equitable distribution, alimony, and child support, continuing on several additional dates and concluding the hearing on 9 October 2009. On 4 March 2010, the trial court entered an equitable distribution order which granted a distributive award to plaintiff of $629,840.00, payable over seven years in 84 monthly installments of $7,498.10. The next day, the trial court entered an order denying plaintiff\u2019s claim for alimony based upon her marital misconduct, denying plaintiff\u2019s claim for attorney fees arising from the alimony claim, and granting child support.\nDefendant filed notice of appeal from the equitable distribution judgment and the order regarding alimony and child support on 31 March 2010. Plaintiff also filed a notice of appeal from the judgment and order on 9 April 2010. We will first address defendant\u2019s appeal as to the equitable distribution order and then plaintiff\u2019s cross-appeal as to the denial of alimony.\nII. Defendant\u2019s appeal of equitable distribution judgment\nA. Classification and valuation of marital and divisible property\nDefendant first argues that the trial court made several errors as to classification and valuation of divisible and marital property. Our standard of review as to these issues is well-settled: \u201c[wjhen the trial court sits without a jury, the standard of review on appeal is whether there was competent evidence to support the trial court\u2019s findings of fact and whether its conclusions of law were proper in light of such facts.\u201d Lee v. Lee, 167 N.C. App. 250, 253, 605 S.E.2d 222, 224 (2004) (citation and quotation marks omitted). \u201cWhile findings of fact by the trial court in a non-jury case are conclusive on appeal if there is evidence to support those findings, conclusions of law are reviewable de novo. \u201d Id. (citation omitted). We review the trial court\u2019s distribution of property for an abuse of discretion. Embler v. Embler, 159 N.C. App. 186, 187, 582 S.E.2d 628, 630 (2003) (citation omitted).\n1.Post-separation appreciation of defendant\u2019s dental practice\nDefendant argues that the \u201ctrial court erred as a matter of law in concluding the post-separation increase in value of [his] dental practice was a passive increase and, thus, divisible property.\u201d The trial court identified the dental practice as follows:\nY. John H. Romulus. DPS, PA: This entity is Husband\u2019s dental practice. This asset was stipulated to be marital by the parties in the [pretrial order or \u201cPTO\u201d]. Husband and Wife each offered expert testimony on the issue of the valuation of this asset on the [date of separation or \u201cDOS\u201d] and on the [date of trial or \u201cDOT\u201d] value. R.F. Warwick, CPA, with RSM McGladry was Wife\u2019s expert on the issue of valuation and has substantial experience in valuation of professional practices. Husband\u2019s expert was Terry Smith, CPA.\nAfter an extensive and detailed series of findings regarding the valuation of the dental practice, which are not contested in this appeal, the trial court made the following findings of fact as to classification and valuation of the dental practice:\n2. Based on the foregoing, the Court finds that John M. Romulus, DDS, PA has a value of on the DOS of $983,558.00 and a value on the DOT of $1,284,555.00.\n3. Post DOS Increase in Value: The statute (50-20(b)(4)(a)) sets out that the appreciation in the value of marital property occurring after the date of separation of the parties and prior to the date of distribution is divisible property subject to distribution by the Court in an equitable distribution judgment. As to the change in value of John M. Romulus, PA after the separation of the parties, the Court finds that such increase was passive and is thus divisible property. In support of this conclusion, the Court finds that Dr. Romulus\u2019 efforts to grow the business were essentially unchanged from DOS until DOT. The Defendant did not invest substantially more time working at his practice than on the DOS, and in fact continued to work \u201cdentist\u2019s hours\u201d, which included taking at least one weekday afternoon out of the office or otherwise away from work. There was no evidence of other substantial efforts to grow the business by Dr. Romulus, by increasing advertising, adding new services, new patient recruitment, patient retention efforts or the like.\nEven though Dr. Romulus undoubtedly actively worked in the business by going to the office and doing dentistry, that does not lead to the conclusion that the increase in value of his practice is active and his separate property. Take the example of a shopkeeper who runs a corner store. He works from Monday to Friday, 9am to 5pm. A 20 story residential complex is completed across the street and his receipts increase greatly. Contrast that situation with a similar shopkeeper who expands his hours to nights and weekends, increases advertising to capture new customers, and establishes a website offering online shopping and delivery. This shopkeeper sees a similar increase in receipts, without the benefit of the new apartment building across the street. Although both shopkeepers were actively involved in the business of running the store, the increase in the value of the business itself is passive in the first case and active in the other.\nDr. Romulus has not presented sufficient evidence to rebut the presumption that the increase in value of marital property post separation is divisible property, and thus such increase will be classified as divisible property and distributed as set out in this order.\n4. This asset is assigned to Husband at the DOS value of $983,558.00. The increase in value from DOS until DOT is passive as indicated above, and is thus divisible property assigned to the Husband at a DOT value of $300,997.00.\n(Emphasis added). The trial court also made the following related conclusions of law:\n3. The marital assets and debts, the fair market value of each on the DOS, and the divisible property are as set out in the paragraphs above and they are incorporated herein by reference.\n4. The increase in value of the Husband\u2019s dental practice was passive and therefore divisible property.\nWe first note that the findings of fact above actually include the conclusion of law that the post-separation appreciation of the dental practice is divisible property. \u201cBecause the classification of property in an equitable distribution proceeding requires the application of legal principles, this determination is most appropriately considered a conclusion of law.\u201d Hunt v. Hunt, 112 N.C. App. 722, 729, 436 S.E.2d 856, 861 (1993). We will therefore review this determination as a conclusion of law de novo. See Lee, 167 N.C. App. at 253, 605 S.E.2d at 224. Defendant does not challenge the sufficiency of the evidence to support the portions of the findings of fact quoted above which are actually facts, as to the nature and extent of defendant\u2019s work in the dental practice before and after the date of separation.\nN.C. Gen. Stat. \u00a7 50-20(b)(4)a (2009) defines \u201cdivisible property\u201d as:\nall real and personal property as set forth below:\na. All appreciation and diminution in value of marital property and divisible property of the parties occurring after the date of separation and prior to the date of distribution, except that appreciation or diminution in value which is the result of post-separation actions or activities of a spouse shall not be treated as divisible property.\nDefendant argues that since the trial court found that defendant continued to be actively involved in the dental practice after the date of separation, that any increase in the value of the business must also be appreciation \u201cwhich is the result of postseparation actions or activities])]\u201d See id. Defendant contends that\nthe trial court had to concede \u201cDr. Romulus undoubtedly actively worked in the business Nevertheless, the trial court determined the increase in the business value was passive because [defendant] had not increased his active involvement in the practice or substantially increased his marketing of the practice. This was error. The test is not whether there has been increased active involvement, but rather whether the increase is the result of active involvement. The fact, as found by the trial court, [defendant] continued to work actively in his dental practice \u2014 maintaining the same consistent effort which built a dental practice with a net value of over $900,000 (as found by the trial court) in July 2006, which then jumped 25% in value after the date of separation to over $1.2 million-\u2014 precludes a conclusion the increase in value of his dental practice was passive. [Lawing v. Lawing, 81 N.C. App. 159, 176, 344 S.E.2d 100, 112 (1986)].\nDefendant also argues that the trial court\u2019s hypothetical regarding a shopkeeper is \u201cwholly inapplicable\u201d and \u201clogically flawed[,]\u201d as some of the facts therein are not applicable or analogous to defendant\u2019s practice.\nPlaintiff responds that defendant\u2019s argument is flawed both procedurally and substantively. Procedurally, plaintiff argues that defendant simply failed to meet his burden of proof to overcome the statutory presumption that the postseparation appreciation is divisible. This Court has determined that\n[u]nder the plain language of [N.C. Gen. Stat. \u00a7 50-20(b)(4)a], all appreciation and diminution in value of marital and divisible property is presumed to be divisible property unless the trial court finds that the change in value is attributable to the post-separation actions of one spouse. Where the trial court is unable to determine whether the change in value of marital property is attributable to the actions of one spouse, this presumption has not been rebutted and must control.\nWirth v. Wirth, 193 N.C. App. 657, 661, 668 S.E.2d 603, 607 (2008) (citation omitted). As noted by plaintiff, this Court in Wirth, \u201cidentified the \u2018unless\u2019 clause of Subsection 50-20(b)(4)(a) to be a rebuttable presumption, with the burden of overcoming the presumption placed on the party seeking to show that the postseparation appreciation/ increase (or diminution/decrease) was the result of \u2018postseparation actions or activities\u2019 of a spouse[.]\u201d. Substantively, plaintiff argues that defendant has \u201cfail[ed] to apply the complete statutory test[,]\u201d explaining that although defendant may have presented evidence as to his postseparation \u201cactions or activities!,]\u201d be has not proven that the increase in value was attributable to these activities. Essentially, plaintiff contends that defendant failed to prove causation: that it is more likely than not that the increase in value was caused by his post-separation actions or activities.\nWe agree with plaintiff that this case is governed by the statutory presumption that the post-separation increase in value of marital property is divisible as set forth in Wirth. Regardless of the usefulness of the \u201chypothetical\u201d set forth in the findings of fact, the operative portion of the finding- \u2014 which as we have noted is actually a conclusion of law \u2014 is that \u201cDr. Romulus has not presented sufficient evidence to rebut the presumption that the increase in value of marital property post separation is divisible property, and thus such increase will be classified as divisible property and distributed as set out in this order.\u201d There is no dispute that the dental practice prior to the date of separation is marital property. Based upon the statutory presumption that post-separation appreciation to marital property is divisible, defendant had the burden of proof to rebut this presumption for the trial court to be able to find that the postseparation appreciation in the dental practice was defendant\u2019s separate property. The trial court is the sole judge of the weight and credibility of the evidence. See Phelps v. Phelps, 337 N.C. 344, 357, 446 S.E.2d 17, 25 (1994) (noting that \u201cit is within the trial court\u2019s discretion to determine the weight and credibility that should be given to all evidence that is presented during the trial.\u201d). The trial court\u2019s findings of fact as to the valuation of the dental practice and defendant\u2019s work in the dental practice are unchallenged. Although we review the trial court\u2019s conclusions of law he novo, we cannot reweigh the evidence and credibility of the witnesses. Essentially, the trial court found that it could not determine the cause of the postseparation increase in value, and because of the statutory presumption, it must be considered divisible. We also note, although we have not quoted the extensive findings of fact about valuation of the dental practice as they are not directly relevant to the issues raised on appeal, the trial court did find the valuation methodology and evidence as presented by plaintiff to be more credible than that presented by defendant, and the trial court\u2019s determination of the dental practice\u2019s value and increase in value postseparation is clearly a part of the trial court\u2019s rationale for its conclusion that defendant did not meet the burden of proof to rebut the presumption of divisible appreciation. The trial court\u2019s findings of fact support its conclusion of law that the postseparation appreciation of the dental practice is divisible property, so defendant\u2019s first argument is without merit.\n2. Darlington Avenue property classification\nDefendant next argues that the \u201ctrial court erred as a matter of law in classifying the Darlington Avenue property as plaintiff\u2019s separate property\u201d in finding of fact 6 (L.). Defendant contends that the Darlington Avenue house was \u201cobtained through a property exchange using the 717 Mercer Avenue house, which Plaintiff owned prior to the marriage\u201d and was \u201cheld by both parties in the entireties as husband and wife.\u201d N.C. Gen. Stat. \u00a7 50-20(b)(2) defines \u201cseparate property\u201d as follows:\n(2) \u201cSeparate property\u201d means all real and personal property acquired by a spouse before marriage or acquired by a spouse by bequest, devise, descent, or gift during the course of the marriage. However, property acquired by gift from the other spouse during the course of the marriage shall be considered separate property only if such an intention is stated in the conveyance. Property acquired in exchange for separate property shall remain separate property regardless of whether the title is in the name of the husband or wife or both and shall not be considered to be marital property unless a contrary intention is expressly stated in the conveyance.\nDefendant accurately summarizes the law applicable to classification of this property as follows:\n\u201cWhen previously separate real property becomes titled by the entireties, the law presumes the transfer to be a gift to the marital estate.\u201d Warren v. Warren. 175 N.C. App. 509, 513, 623 S.E.2d 800, 802-803 (2006) (citing McLean v. McLean. 323 N.C. 543, 551-52, 374 S.E.2d 376, 381-82 (1988) and 3 Suzanne Reynolds, Lee\u2019s North Carolina Family Law \u00a7 12.33, at 12-100 (5th ed. 2002) (\u201cThe [marital gift] presumption applies in all instances when the spouses cause title to real property, or an interest in real property, to be in the entireties. The presumption applies when one spouse conveys to the other spouse in the entireties and when, because of a purchase, third parties convey to the spouses in the entireties.\u201d)). \u201cThis presumption may be rebutted only by clear, cogent, and convincing evidence that there was no donative intent to make a gift to the marriage on the part of the alleged donor spouse.\u201d Id.\nThe same is true where real property is purchased using separate funds: \u201cThis Court, in previously construing G.S. sec. 50-20(b) (2), has determined that \u2018where a spouse furnishing consideration from separate property causes property to be conveyed to the other spouse in the form of tenancy by the entireties, a presumption of a gift of separate property to the marital estate arises, which is rebuttable by clear, cogent, and convincing evidence.\u2019 \u201d Thompson v. Thompson, 93 N.C. App. 229, 231, 377 S.E.2d 767, 768 (1989) (quoting McLeod v. McLeod. 74 N.C. App. 144, 154, 327 S.E.2d 910, 916-17 (1985))\nThe trial court\u2019s findings of fact and conclusions of law as to the Darlington Avenue property, in their entirety, are as follows:\nL. 73 Darlington Avenue. Wilmington. N.C.: This asset is Wife\u2019s separate property however it is encumbered by a Promissory Note payable to Herbert Fisher on the DOS in the amount of $176,000.00 and on the DOT in the amount of $149,252.00, which debt the Court finds to be marital debt. This is a debt that was incurred by the parties during the course of the marriage but in fact, encumbers Wife\u2019s separate property. The Court assigns this marital debt to the Wife.\nThe trial court made the following conclusion of law, covering all of the items of separate property identified in the findings of fact, including the Darlington Avenue:\n5. The separate property of each of the Parties is set out and valued in the paragraphs above and they are incorporated herein by reference as if fully set out.\nAs noted above, the classification of property is actually a conclusion of law, not a finding of fact, and we will therefore review the trial court\u2019s classification of the Darlington Avenue property de novo. See Hunt, 112 N.C. App. at 729, 436 S.E.2d at 861.\nPlaintiff acknowledges that the trial court\u2019s \u201cfinding of fact/conclusion of law might leave something to be desired in several respects\u201d but argues that this \u201cdoes not mean that Paragraph 6(L) is either factually incorrect or legally unsustainable.\u201d The arguments of both parties focus on whether the presumption of a gift to the marital estate which arises from titling the property as tenants by the entireties may be rebutted solely by the testimony of the donor-spouse. Yet we must first consider whether the trial court\u2019s findings of fact are sufficient to support its conclusion of law that the Darlington Avenue property is plaintiff\u2019s separate property. This is the simple part of our analysis, as the trial court actually made no findings of fact which could support the classification of the Darlington Avenue property as either marital or separate property. Essentially, the trial court made a finding of fact as to the valuation and the debt associated with the house, facts which were agreed upon by the parties, but only a conclusion of law as to the contested issue, the classification of the Darlington Avenue property as separate or marital property. The order contains no finding as to the facts necessary for the determination of whether the property is marital or separate such as when it was acquired, how it was acquired, or even how it was titled. Although ample evidence was presented on all of these facts, the trial court did not make the findings. To support the conclusion of law that the Darlington Avenue property is separate, the trial court must make \u201cspecific findings of the ultimate facts established by the evidence, admissions, and stipulations that are determinative of the questions involved in the action and essential to support the conclusions of law reached.\u201d Plott v. Plott, 313 N.C. 63, 74, 326 S.E.2d 863, 870 (1985) (citation omitted). Although the trial court need not and should not recite all of the evidence, \u201c[t]he purpose for the requirement of specific findings of fact that support the court\u2019s conclusion of law is to permit the appellate court on review to determine from the record whether the judgment \u2014 and the legal conclusions that underlie it \u2014 represent a correct application of the law.\u201d Patton v. Patton, 318 N.C. 404, 406, 348 S.E.2d 593, 595 (1986) (citation and quotation marks omitted). We therefore find that the trial court erred as to its conclusion as to the classification of the Darlington Avenue property, as there were no findings of fact to support the conclusion of law. We therefore remand the matter to the trial court to make additional findings of fact regarding the classification of the Darlington Avenue property and to make its conclusion of law based upon its findings of fact.\nOur analysis as to the classification of the Darlington Avenue property is not over, because the additional issue as presented at trial and ably argued by both parties will arise again on remand. We will therefore address these arguments as well.\nAt trial, undisputed evidence was presented that plaintiff owned a house located at 717 Mercer Avenue prior to her marriage to defendant. During the marriage, the Mercer Avenue property was exchanged for the Darlington Avenue property, which was titled in both parties\u2019 names in the entireties. Defendant had also owned a house prior to the parties\u2019 marriage, and plaintiff testified that the parties had essentially agreed that defendant would keep his house and she would keep hers. Although defendant\u2019s testimony as to the parties\u2019 agreement, if any, as to the Darlington Avenue property at the time of its acquisition is not entirely clear, he did affirm that there was no \u201cdiscussion that [the Darlington Avenue house] was her separate property[.]\u201d Yet, arguably the only evidence which could potentially support findings of fact to rebut the marital property presumption is plaintiff\u2019s testimony as to her intent. Herein lies the issue which the trial court must resolve on remand.\nDefendant argues that plaintiffs testimony alone cannot, as a matter of law, suffice to rebut the marital property presumption:\n\u201cthe donor\u2019s testimony alone that [s]he lacked the requisite intent is insufficient to rebut the marital gift presumption.\u201d Warren. 175 N.C. at 514, 623 S.E.2d at 803 (citing Thompson. 93 N.C. App. at 232, 377 S.E.2d at 768-69 (defendant\u2019s testimony alone \u201ccertainly\u201d did not rise to the level of clear, cogent, and convincing evidence); and 3 Reynolds, supra. \u00a7 12.33, at 12-102 (\u201cOften the only evidence of a lack of donative intent is the donor\u2019s testimony. The appellate cases of North Carolina have uniformly held that such evidence alone will not satisfy the burden of rebutting the presumption by clear, cogent, and convincing evidence.\u201d)).\nThe only evidence in this case which could possibly be construed as attempting to overcome the marital gift presumption is Plaintiff\u2019s own testimony both parties had a house before the marriage and Plaintiff traded hers for the Darlington Avenue property. . . . This testimony standing alone is insufficient, as a matter of law, to overcome the marital gift presumption as to the Darlington Avenue real property. Id-\nPlaintiff takes issue with defendant\u2019s characterization of Warren as establishing that \u201cthe donor\u2019s testimony alone that [s]he lacked the requisite intent is insufficient to rebut the marital gift presumption\u201d as well as Reynolds\u2019 characterization of the caselaw. Plaintiff argues that North Carolina\u2019s appellate cases have actually not \u201cuniformly held that [the donor\u2019s testimony] alone will not satisfy the burden of rebutting the presumption by clear, cogent, and convincing evidence.\u201d Plaintiff argues that\n[t]he Defendant\u2019s argument actually relies upon a subsequent erroneous extension of the McLean presumption, by which a certain species of testimony has been deemed insufficient\u2014 apparently, as a matter of law \u2014 to meet the \u201cclear, cogent, and convincing\u201d standard. To the extent these opinions from the Court of Appeals maintain such a rule, they are in conflict with the original holding in McLean, in that they substitute a blanket evidentiary rule (which is not the rule found in McLean) for the trial court\u2019s discretion in determining the sufficiency of the evidence (which is the rule found in McLean).\n(Emphasis in original.) We must therefore review the development of the marital gift presumption and how it may be rebutted from McLean v. McLean, 323 N.C. 543, 374 S.E.2d 376 to the present, to determine if a rule as articulated by Reynolds has actually been established in our caselaw. If it has, on remand the trial court would have no option but to conclude that the Darlington Avenue house is marital property, as the only evidence as to intent of the donor is plaintiff\u2019s testimony; if not, the trial court on remand would weigh the relevant evidence, including plaintiff\u2019s testimony, and determine, based upon clear, cogent, and convincing evidence, whether plaintiff successfully rebutted the presumption.\nWe begin our analysis with an opinion of this Court which predated McLean and was cited as part of the rationale of McLean, Draughon v. Draughon, 82 N.C. App. 738, 347 S.E.2d 871 (1986), cert denied, 319 N.C. 103, 353 S.E.2d 107 (1987). Draughon is also one of the cases cited by Reynolds to support the proposition that appellate cases have \u201cuniformly\u201d held that testimony of the donor spouse is insufficient as a matter of law to rebut the marital gift presumption. In Draughon, the wife argued that her separate funds which were used to pay the mortgage on the marital home should have been classified as her separate property, as she testified that she did not intend to make a gift to the marital estate. Id. at 739, 347 S.E.2d at 872. We noted that the wife\ncontends this testimony was sufficient to rebut the presumption of a gift of separate property to the marital estate by clear, cogent, and convincing evidence. This evidence may be clear and cogent, but evidently it was not convincing to the trial court. The credibility of a witness is a matter to be resolved by the trier of fact. Laughter v. Lambert, 11 N.C. App. 133, 180 S.E.2d 450 (1971). Upon appellate review of a case heard without a jury the trial court\u2019s findings of fact are conclusive on appeal if there is evidence to support them, even though evidence might sustain findings to the contrary. Dixon v. Kinser and Kinser v. Dixon, 54 N.C. App. 94, 282 S.E.2d 529 (1981), disc. rev. denied, 304 N.C. 725, 288 S.E.2d 805 (1982). We have reviewed the evidence and find that it supports the court\u2019s findings. The court properly concluded, based upon the case law, that defendant\u2019s sum was a gift to the marital estate in the form of a mortgage payment.\nId. at 739-40, 347 S.E.2d at 872. Draughon did not establish a rule that testimony of the donor spouse cannot rebut the marital gift presumption as a matter of law. Instead, it recognized and applied the well-settled rule that the trial court determines the credibility of the witnesses and the weight to be given to the testimony. The trial court did not find the wife\u2019s evidence convincing, and this Court found the trial court\u2019s determination conclusive because it was supported by the evidence.\nIn McLean v. McLean, 323 N.C. 543, 546-47, 374 S.E.2d 376, 378-79, our Supreme Court addressed the operation of the marital gift presumption as established in McLeod v. McLeod, 74 N.C. App. 144, 327 S.E.2d 910 and how this presumption may be rebutted.\n[Considering the nature of the marital relationship and of the entireties estate, we conclude that the marital gift presumption established in McLeod is appropriate as an aid in construing N.C.G.S. \u00a7 50-20(b)(2). Donative intent is properly presumed when a spouse uses separate funds to furnish consideration for property titled as an entireties estate. McLeod, 74 N.C. App. at 154, 327 S.E.2d at 916-17. This presumption is sufficiently strong that it is, and should be, rebuttable only by clear, cogent, and convincing evidence. Id. Rebuttal of the presumption would then result in application of traditional source of funds analysis.\nWhen property subject to classification is titled as a tenancy by the entirety, therefore, the marital gift presumption controls the initial determination of whether a gift has been made. If a spouse uses separate funds to acquire property titled by the entireties, the presumption is that a gift of those separate funds was made, and the statute\u2019s interspousal gift provision applies. Unless that presumption is rebutted by clear, cogent and convincing evidence, the statute dictates that the gift \u201cshall be considered separate property only if such an intention is stated in the conveyance.\u201d N.C.G.S. \u00a7 50-20(b)(2) (1987).\nId. at 551-52, 374 S.E.2d at 381-82 (footnote omitted). Thus, McLean sets forth the rule that when one spouse deeds his or her separate real property to both parties as tenants by the entireties, a presumption of a gift to the marital estate arises, which can be rebutted only by either \u201cclear, cogent, and convincing evidence\u201d or by the intention that the property remain separate as \u201cstated in the conveyance.\u201d See id. McLean does not say that testimony of the donor cannot, as a matter of law, be sufficient evidence to rebut the presumption. In the preceding case, McLean v. McLean, 88 N.C. App. 285, 289-90, 363 S.E.2d 95, 98-99 (1987), this Court noted that the trial court found that the defendant had not presented \u201cclear, cogent, and convincing\u201d evidence sufficient to rebut the marital gift presumption. This Court did not find that the trial court was correct because the defendant\u2019s evidence as to his own intent was incompetent as a matter of law to support a finding; instead the McLean court noted that\n[defendant presented evidence showing the source of his separate funds and their application to the Camp Branch Road property and the office building. He also elicited testimony from plaintiff that she did not want to be awarded anything from defendant\u2019s inheritance. Whether defendant succeeded in rebutting the presumption of gift to the marital estate by clear, cogent, and convincing evidence is a matter left to the trial court\u2019s discretion. Defendant\u2019s evidence \u201cmay be clear and cogent, but evidently it was not convincing to the trial court.\u201d Draughon v. Draughon, 82 N.C. App. 738, 739, 347 S.E.2d 871, 872 (1986), cert. denied, 319 N.C. 103, 353 S.E.2d 107 (1987). There is some competent evidence to support the trial court\u2019s findings; therefore, its rulings will not be disturbed on appeal. Lawing v. Lawing, 81 N.C. App. 159, 344 S.E.2d 100 (1986)----\nId. (emphasis added). Thus, the McLean court recognized that the determination of the weight of the evidence, whether from testimony of the donor spouse or other evidence, was left to the trial court\u2019s discretion. As the trial court had properly exercised its discretion, the Supreme Court affirmed this Court\u2019s ruling on this issue. McLean, 323 N.C. at 555, 374 S.E.2d at 383.\nDefendant relies primarily on two of the next cases in this line, Thompson v. Thompson, 93 N.C. App. 229, 377 S.E.2d 767 (1989) and Warren v. Warren, 175 N.C. App. 509, 623 S.E.2d 800 (2006) to argue that \u201cthe donor\u2019s testimony alone that [s]he lacked the requisite intent is insufficient to rebut the marital gift presumption.\u201d See id. at 514, 623 S.E.2d at 803. Although these words are accurately quoted from Warren, we must determine if this statement is in fact a rule of law or obiter dicta. We will address these cases also in chronological order.\nIn Thompson v. Thompson, the husband contributed separate property to the purchase of the parties\u2019 marital home, which was titled as tenants by the entireties, but presented evidence that he did not intend to make a gift to the martial estate of his separate inheritance. 93 N.C. App. at 230, 232, 377 S.E.2d at 767, 768. The trial court concluded that he made a gift to the marital estate by placing title to the property as tenants by the entireties, and the husband argued on appeal that this conclusion was in error. Id. at 230, 377 S.E.2d at 767. The Thompson court noted the \u201csettled rule\u201d that \u201cMcLean [had] adopted the marital gift presumption of McLeod for entireties property\u201d and stated that\nThe question then becomes whether defendant has come forward with clear, cogent, and convincing evidence to rebut this presumption. We find that he has not.\nThe conveyance itself contained no statement that defendant intended to keep the residence his separate property. Whether evidence presented by defendant at trial is sufficient to \u201c[rebut] the presumption of gift to the marital estate by clear, cogent, and convincing evidence is a matter left to the trial court\u2019s discretion.\u201d Id. at 555, 374 S.E.2d at 383, quoting with approval, McLean v. McLean, 88 N.C. App. 285, 290, 363 S.E.2d 95, 98-99 (1987).\nAt trial the only evidence properly before the court as to defendant\u2019s intent concerning the status of the residence on Asheboro Street was the following:\nQ: Mr. Thompson, was it your intent to have your former wife\u2019s name placed on the deed?\nA: No, and this is the reason I asked twice first.\nAs to defendant\u2019s intent concerning the property on Mystic Drive, the transcript reveals only the following interchange:\nQ: Whenever you bought the second house [on Mystic Drive], do you know whose names were put on the deed?\nA: The second house, due to the fact that Peggy\u2019s name was placed on the deed to my second house it was only natural then that her name was going to go to the third house.\nWe agree with plaintiffs argument that the above-quoted statements of defendant show merely that he considered whether to place plaintiffs name on the deed and then proceeded to do so. In any event, they certainly do not rise to the level of clear, cogent, and convincing evidence of defendant\u2019s intention not to make a gift to the marital estate.\nId. at 232, 377 S.E.2d at 768-69. If the absence of a statement of contrary intent in the conveyance were the only competent evidence to refute the marital gift presumption, the Thompson court would not have addressed the defendant\u2019s testimonial evidence, as this would have been unnecessary for its ruling. Likewise, if the husband\u2019s testimony, as the donor spouse, was incompetent as a matter of law to rebut the presumption, the Thompson court need not have considered his actual testimony. Thompson therefore does not hold that the donor\u2019s testimony cannot be sufficient evidence to rebut the marital gift presumption; it merely agreed that the trial court had properly weighed the evidence and concluded that it did not rebut the presumption.\nLikewise, in Lawrence v. Lawrence, this Court considered whether a parcel of real property purchased with the husband\u2019s inheritance but deeded to both parties as tenants by the entireties was properly classified as his separate property. 100 N.C. App. 1, 7-8, 394 S.E.2d 267, 269-70 (1990). The wife argued that based upon McLean, the trial court should have classified the real property as marital as it was titled as tenants by the entireties. Id. at 8-9, 394 S.E.2d at 269-70. The trial court made extensive findings of fact about the property, including the following:\nThis property is ancestral property and has been in the Defendant\u2019s maternal ancestry for over 100 years. The Court further finds that when the Plaintiff took an appraiser to these tracts of land for an appraisal to be made in Mitchell County to testify in this cause, the Plaintiff did not know where the 24 acres or the 2.14 acres were located on Conley Ridge Road. That the Defendant testified that at no time did he ever intend to make a gift of any of. these deeds to the Mitchell County property to his wife. That the Plaintiff did not testify that she understood that the Defendant intended to make her a gift of the Mitchell County property. The Court finds that the evidence is clear, cogent and convincing and of sufficient weight to rebut the presumption of gift created by the deeds being in the form of tenants by the entirety.\nId. at 8, 394 S.E.2d at 270. This Court found that the trial court had supported its conclusion of separate property with some facts which could not support this conclusion as they did not relate to the donor spouse\u2019s intent. Id. Specifically, Lawrence rejected the facts as to the use of the property, that it was \u201cancestral,\u201d and the donee spouse\u2019s knowledge or understanding of the facts regarding the property. Id. at 8-9, 394 S.E.2d at 270. But significantly for the issue before us now, the' Lawrence court stated that the trial court should consider and weigh the husband\u2019s testimony as to his intent.\nThe trial court erred by relying on defendant\u2019s use of separate property to purchase the 24 acre tract to rebut the presumption of a gift to the marital estate. Additionally, the findings that this property was \u201cancestral,\u201d that plaintiff did not know its location and her lack of testimony that she understood that defendant intended to make a gift are irrelevant to the issue of whether this property is marital property.\nThe remaining basis for the trial court\u2019s determination that the gift presumption was rebutted is defendant\u2019s testimony that he did not intend to make a gift to his wife. \u201cWhether defendant succeeded in rebutting the presumption of gift to the marital estate by clear, cogent and convincing evidence is a matter left to the trial court\u2019s discretion.\u201d McLean v. McLean, 88 N.C. App. 285, 290, 363 S.E.2d 95, 98-99 (1987), aff\u2019d, 323 N.C. 543, 374 S.E.2d 376 (1988). The general rule is that \u201c[u]pon appellate review of a case heard without a jury the trial court\u2019s findings of fact are conclusive on appeal if there is evidence to support them . . . .\u201d Draughon v. Draughon, 82 N.C. App. 738, 740, 347 S.E.2d 871, 872 (1986), cert. denied, 319 N.C. 103, 353 S.E.2d 107 (1987). Although the trial court here found as a fact that defendant had rebutted the gift presumption, the court erred in relying on evidence that has no bearing on the issue. Accordingly, we remand to the trial court for a determination whether defendant\u2019s relevant evidence was sufficiently clear, cogent and convincing to rebut the gift presumption. We note that this court has affirmed findings that property is marital even though a donor spouse testified that a gift was not intended. See Thompson v. Thompson, 93 N.C. App. 229, 232, 377 S.E.2d 767, 768-69 (1989) (trial court did not err in determining that parties\u2019 home .was marital property where only competent evidence that a gift was not intended was donor\u2019s testimony); Draughon, 82 N.C. App. at 739-40, 347 S.E.2d at 872 (although donor spouse testified that she did not intend a gift there was evidence to support trial court\u2019s finding that the property was marital).\nId. at 8-9, 394 S.E.2d at 270-71 (emphasis added). If Mr. Lawrence\u2019s testimony alone as to his intent was insufficient as a matter of law to support the trial court\u2019s determination that he had rebutted the marital gift presumption, just as in Thompson, there would have been no need to remand the case to the trial court to make additional findings. The Lawrence court noted that some cases have found the testimony of the donor spouse to be insufficient, but it remains a determination which is made in the discretion of the trial judge.\nFinally, we reach the most recent case, Warren v. Warren 175 N.C. App. 509, 623 S.E.2d 800. In Warren, Mr. Warren and his brother inherited real property from their father. Id. at 513, 623 S.E.2d at 802. Later, Mr. Warren and his brother deeded the entire property to Mr. Warren and his wife as tenants by the entireties, thus creating the marital gift presumption. Id. Mr. Warren testified at trial that he \u201cdid not instruct the attorney performing the conveyance to transfer the property by the entireties[.]\u201d Id. at 514, 623 S.E.2d at 803. He made an offer of proof that \u201che had no intent to make a gift to [his wife] of [any] inheritance whatsoever,\u201d but this evidence was not admitted by the trial court. Id. (footnote and quotation marks omitted). On appeal, this Court specifically did not address Mr. Warren\u2019s offer of proof of testimony as to his intent. Id. We noted that \u201cMr. Warren did not assign [the trial court\u2019s ruling which excluded his testimony regarding his intent] as error and we, therefore, will not review it. N.C.R. App. P 10(a).\u201d Id. at 514 n.2, 623 S.E.2d at 803 n.2. We addressed only Mr. Warrant\u2019s testimony that he \u201cdid not instruct the attorney\u201d to deed the property by the entireties. Id. at 514, 623 S.E.2d at 803. We then stated:\nOur courts have held, however, that the donor\u2019s testimony alone that he lacked the requisite intent is insufficient to rebut the marital gift presumption. See Thompson v. Thompson, 93 N.C. App. 229, 232, 377 S.E.2d 767, 768-69 (1989) (defendant\u2019s testimony alone \u201ccertainly\u201d did not rise to the level of clear, cogent, and convincing evidence). See also 3 Reynolds, supra, \u00a7 12.33, at 12-102 (\u201cOften the only evidence of a lack of donative intent is the donor\u2019s testimony. The appellate cases of North Carolina have uniformly held that such evidence alone will not satisfy the burden of rebutting the presumption by clear, cogent, and convincing evidence.\u201d). Accordingly, because the only relevant evidence Mr. Warren offered to rebut the presumption was his own testimony, the trial court did not err in finding that the entire parcel was marital property.\nId. Thus, any statement in Warren addressing Mr. Warren\u2019s proffered testimony that he did not intend to make a gift to the marital estate was unnecessary for the court\u2019s ruling. The Warren court specifically stated that this issue was not assigned as error and was not reviewed. Warren cannot be read as adopting a rule that the donor\u2019s testimony alone cannot \u201csatisfy the burden of rebutting the presumption by clear, cogent, and convincing evidence[,]\u201d see id., because any statement to this effect is obiter dicta. Our Supreme Court has noted that\n\u201c[i]n every case what is actually decided is the law applicable to the particular facts; all other legal conclusions therein are but obiter dicta.\u201d Hill v. Houpt, 292 Pa. 339, 141 A. 159, 160.\nOn the subject of obiter dicta, we find this statement in Black, Law of Judicial Precedents, at page 173: \u201c ... if the statement in the opinion was . . . superfluous and not needed for the full determination of the case, it is not entitled to be accounted a precedent, for the reason that it was, so to speak, rendered without jurisdiction or at least extra-judicial. Official character attaches only to those utterances of a court which bear directly upon the specific and limited questions which are presented to it for solution in the proper course of judicial proceedings. Over and above what is needed for the solution of these questions, its deliverances are unofficial.\u201d\nTrue, where a case actually presents two or more points, any one of which is sufficient to support decision, but the reviewing Court decides all the points, the decision becomes a precedent in respect to every point decided, and the opinion expressed on each point becomes a part of the law of the case on subsequent trial and appeal. In short, a point actually presented and expressly decided does not lose its value as a precedent in settling the law of the case because decision may have been rested on some other ground. 21 C.J.S., Courts, Sec. 190, p. 314.\nHayes v. Wilmington, 243 N.C. 525, 536-37, 91 S.E.2d 673, 682 (1956). The Warren court did not base its decision upon, or even consider, two points as to Mr. Warren\u2019s testimony; it considered only one as it considered only one assignment of error, as to Mr. Warren\u2019s testimony that he did not instruct the attorney to deed the property as tenants by the entirety. 175 N.C. App. at 514-15, 623 S.E.2d at 803. This testimony does not address Mr. Warren\u2019s intent but is merely testimony that he did not instruct the attorney as to the content of the deed. In addition, Warren held simply that the trial court did not err in determining that Mr. Warren had not rebutted the marital gift presumption by his testimony that he did not instruct the attorney as to the deed. See id. This holding is entirely consistent with the prior cases as noted above, which leave the determination of the credibility of the witnesses and the weight of the evidence to the trial judge.\nWe also note that the quoted \u201crule\u201d from Warren that \u201c[o]ur courts have held, however, that the donor\u2019s testimony alone that he lacked the requisite intent is insufficient to rebut the marital gift presumption[,]\u201d see id. at 514, 623 S.E.2d at 803, is an accurate description of the cases cited to the extent that in those cases, the trial court determined that the donor\u2019s testimony as to intent was not sufficient to rebut the marital gift presumption by clear, cogent, and convincing evidence. This does not mean that a trial court can neyer determine, in another case, upon weighing all of the evidence and the credibility of the witnesses, that a donor\u2019s testimony is sufficient to rebut the presumption.\nOur Supreme Court has not directly addressed the issue of whether testimony of the donor spouse as to intent is insufficient as a matter of law to rebut the marital gift presumption. However, it has expressed its approval of this Court\u2019s holdings which left the determination of the weight of the evidence \u201cto the trial court\u2019s discretion\u201d in Haywood v. Haywood, 106 N.C. App. 91, 103, 415 S.E.2d 565, 572 (1992) (Wynn, J., dissenting), rev\u2019d per curium by 333 N.C. 342, 425 S.E.2d 696 (1993) (adopting J. Wynn\u2019s dissent). In Haywood, our Supreme Court adopted the dissent of Judge Wynn, which noted that\nprevious holdings of our courts . . . have required that a presumption of a gift of separate property to the marital estate is rebuttable only by a showing of clear, cogent, and convincing evidence. See [McLean, 323 N.C. at 552, 374 S.E.2d at 382]; Lawrence v. Lawrence, 100 N.C. App. 1, 394 S.E.2d 267 (1990). Moreover, whether a party has succeeded in rebutting the presumption of a gift to the marital estate by clear, cogent, and convincing evidence is a matter left to the trial court\u2019s discretion. Lawrence, 100 N.C. at 9, 394 S.E.2d at 270.\nId.\nWe therefore hold that the trial court should consider the credibility and weight of all of the relevant evidence, including testimonial evidence of the donor spouse as to her intent in making a conveyance of separate real property to the parties as tenants by the entireties, just as it considers all other evidence. Of course, the trial court must find clear, cogent, and convincing evidence to rebut a presumption of a gift to the marital estate in this situation, but whether the plaintiffs evidence is \u201cclear, cogent, and convincing\u201d is left to the trial court\u2019s discretion. The donor spouse\u2019s testimony is not incompetent as a matter of law on this issue.\nIn summary, we reverse the trial court\u2019s conclusion of law that the Darlington Avenue property is the separate property of plaintiff as this conclusion is not supported by findings of fact. On remand, the trial court shall make findings of fact regarding the Darlington Avenue property, including findings as to whether plaintiff has rebutted the marital gift presumption by clear, cogent, and convincing evidence; shall make its conclusion of law as to classification of this property based upon those findings of fact; and shall adjust the distribution of property accordingly, if the classification changes and adjustment is necessary. We express no opinion on what findings of fact or conclusion of law the trial court should make on remand, but direct only that the trial court shall exercise its discretion in making the appropriate findings of fact and shall make the proper conclusion of law based on those findings. There is no need for presentation of additional evidence.\n3. Post-separation net rental income and losses from investment properties\nDefendant\u2019s last argument is that the trial court erred in its valuation of \u201cthe post-separation net rental income and losses from the parties\u2019 investment properties.\u201d The parties agreed in the PTO that the \u201cnet post-separation income and loss from the marital investment properties constituted divisible property\u201d but \u201cdisagreed on the valuation of the net income and loss and the properties to be included in this calculation.\u201d Defendant\u2019s evidence showed a net loss on the investment properties, while plaintiff\u2019s evidence was that defendant had a net income of $266,443.00.\nThe trial court made the following findings of fact regarding the valuation of the post-separation rental income or loss:\n[6. ] NN. Divisible Property: The Court finds that following the separation of the parties, the Husband collected rent from various commercial properties owned by the parties. From mid-2006 (DOS) through the end of 2008, the Husband collected a net of $266,443.00 and had sole use of the proceeds. The Court adopts as its findings the credible evidence regarding the same introduced by the Plaintiff in the chart entitled \u201cCalculation of Rental Income Net of Mortgage and Taxes for Romulus Commercial Properties\u201d located at tab H3.1 in Plaintiffs notebook and incorporates the same herein as if fully set forth. The Court finds these proceeds to be a marital divisible asset and assigns them to Husband.\nThe table at Tab H3.1, which was incorporated by reference in Finding 6(NN) summarized rental receipt and expenses for 2006, 2007, and 2008 for each of the following properties:\n1. 3725 Wrightsville\n2. 3131-3147 Wrightsville\n3. 715-717 Market\n4. 3538 S. College\n5. 2309 Delaney\n6. 6401 Windmill Way\nThe net income for all of the properties is shown as $266,443.00.\nThe trial court also addressed the post-separation rental income or loss in its findings of fact regarding distributional factors:\n7. DISTRIBUTIONAL FACTORS:____\nM. Anv other factor which the Court finds to be iust and proper.\nThe Court considers that there was additional divisible property in the form of rents from the commercial and other real estate holdings of the parties, but there was insufficient evidence at trial to value such rents. However, there is substantial value to this divisible property and it was considered by the Court in achieving equity. This factor weighs in favor of the Wife. The Court further considered that the Husband paid substantial sums of PSS to the Wife and upon hearing before this Court, the alimony claim of the Wife was ultimately denied. This will be a distributional factor (not a credit) that weighs in favor of the Husband.\nDefendant argues that the trial court failed to make findings regarding his evidence of post-separation losses on three additional properties, which were not listed on Plaintiffs exhibit H3.1. These properties were identified as 202 Cape Pointe, 73 Darlington Avenue, and 911 Orange Street. Defendant argues that his evidence indicated that these properties had net post-separation losses of $33,457.00. Defendant contends that the trial court erred by failing to make specific findings regarding the value of these divisible losses: \u201cIn performing the necessary steps to equitably distribute the parties\u2019 property, a court is required to make sufficiently specific findings of fact for an appellate court to determine what was done and to evaluate its correctness. See Wade v. Wade. 72 N.C. App. 372, 376, 325 S.E.2d 260, 266 (1985).\u201d\nOur standard of review as to this issue is \u201cwhether there was competent evidence to support the trial court\u2019s findings of fact and whether its conclusions of law were proper in light of such facts.\u201d Lee, 167 N.C. App. at 253, 605 S.E.2d at 224 (citation and quotation marks omitted). Defendant does not argue that there was no evidence to support finding of Fact 6(NN), but instead that the trial court did not make adequate findings of fact as to each potential item of divisible income or loss for which defendant presented evidence, such that the findings are inadequate for this Court to \u201cevaluate its correctness.\u201d\nPlaintiff responds that taken together, Finding 6(NN) and 7(M) demonstrate that the trial court made findings as to all of the post-separation rental loss or income for which it deemed the evidence to be sufficiently credible that the court could make specific findings noting that \u201c[t]he mere introduction of evidence does not entitle the proponent to a finding thereon, since the finder must pass on its weight and credibility!.]\u201d Long v. Long, 71 N.C. App. 405, 407, 322 S.E.2d 427, 430 (1984).\nAs to the Darlington Avenue property, we note that the trial court classified it as plaintiff\u2019s separate property, so that the post-separation income or loss could not be divisible property. As discussed above, we have remanded to the trial court to make additional findings of fact and conclusions of law regarding the Darlington Avenue property, so the issue of the treatment of the post-separation income or loss from that property must also be addressed on remand. We will therefore address defendant\u2019s argument only as to 202 Cape Pointe and 911 Orange Street properties. Upon review of the testimony and exhibits regarding the rental income and losses from these properties, we find that the trial court\u2019s findings of fact are supported by the evidence, and they adequately address the issues raised. The trial court determined that although there was rental income from properties other than those identified in finding of fact 6(NN), there was not sufficient credible evidence to permit the trial court to determine specific values. This is reflected in Finding of fact 7(M), which notes that \u201cthere was insufficient evidence at trial to value such rents.\u201d Defendant\u2019s argument as to error in the valuation of the post-separation rental income or loss is therefore without merit.\nIII. Plaintiff\u2019s cross-appeal of the order denying alimony\nA. Illicit sexual behavior\nPlaintiff filed notice of cross-appeal to the trial court\u2019s order denying her claim for alimony based upon its conclusion that she had \u201cengaged in an act of illicit sexual behavior as defined in N.C.G.S. \u00a7 50-16.lA(3)(a) which has not been condoned by the Defendant and did not occur during a period of separation.\u201d Plaintiff argues that the trial court \u201cerred as a matter of law in concluding that the plaintiff\u2019s \u2018sexual\u2019 conduct met the definition of \u2018illicit sexual behavior\u2019 within the meaning of N.C. Gen. Stat. \u00a7 50-16.1A(3)a.\u201d Plaintiff\u2019s arguments require that we consider the definitions of \u201cillicit sexual behavior\u201d as applicable to N.C. Gen. Stat. \u00a7 50-16.3A. Also, a portion of the trial court\u2019s findings here is based upon the plaintiff\u2019s admission to engaging in \u201csexual relations.\u201d Although defendant argues that \u201c[i]n common usage, the term \u2018sexual relations\u2019 is synonymous with \u2018sexual intercourse,\u2019 \u201d based upon Merriam-Webster\u2019s Online Dictionary definition, the meaning of \u201csexual relations\u201d is not always so obvious. In addition, the term \u201csexual relations\u201d is not part of the statutory definition for illicit sexual behavior. See N.C. Gen. Stat. \u00a7 50-16.1A(3)a (2009).\nThe trial court made the following findings of fact regarding plaintiff\u2019s entitlement to alimony:\n10. Although the Plaintiff is a dependent spouse and the Defendant is a supporting spouse, the Court finds that the Plaintiff has voluntarily participated in an act of illicit sexual behavior as defined by N.C.G.S. \u00a750-16.lA(3)(a) during the course of the marriage which has not been condoned by the Defendant in that he did not know of the Plaintiff\u2019s activities until the trial of this matter.\n11. During the marriage in the summer and fall of 1999, the Plaintiff was involved in an act or acts of illicit sexual behavior with a man by the name of Steve Cline by allowing Mr. Cline to penetrate her vagina either with his finger or his penis on at least one or more occasions.\n12. At the initial hearing of this trial, the Plaintiff admitted under oath to having \u201csexual relations\u201d or \u201csexual encounters\u201d with Steve Cline in 1999.\n13. Thereafter, the case was continued at the request of the Plaintiff. At the subsequent hearing, the Plaintiff testified that she considered kissing to be \u201csexual relations.\u201d This testimony is not believable to this Court. Steve Cline was subpoenaed to testify and testified that he remembered having sexual relations with the Plaintiff on two occasions, once on Bald Head Island and once in a pool. Although Mr. Cline testified that he did not recall the exact details of the two encounters, he did recall that even though sexual intercourse may have failed due to his failure to obtain or maintain an erection, he rubbed the Plaintiffs vaginal area and she touched his penis. The Court has had the opportunity to observe the witnesses testify, had access to their demeanor, tone of voice and ultimately the credibility of the parties. Based on these factors, it is clear to this Court that the Plaintiff engaged in active illicit sexual behavior with Steve Client during the parties\u2019 marriage.\n14. As stated above, the Defendant was not ever made aware of these encounters until the trial of this matter and as such, did not condone such actions.\n17. There is insufficient evidence to indicate that the Defendant has committed any act of illicit sexual behavior during the marriage. However, [t]he Court finds [the] Plaintiff\u2019s testimony credible and Defendant\u2019s admission that Defendant committed marital misconduct by the following:\na. His excessive viewing of pornography, in spite of Plaintiff\u2019s request to the contrary and to the extent that one of the parties\u2019 children \u201ccaught\u201d him viewing same. He was in excessive [sic] therapy for this problem.\nb. His multiple incidents of violence against the Plaintiff, the most violent one being the incident intentionally breaking her right arm.\nc. His violence against the parties\u2019 minor children pushing them, hitting them and in one instance choking one of the minor children until he lost consciousness.\nd. His repeated verbal abuse of Plaintiff and the minor children.\nOur standard of review for the trial court\u2019s determination as to plaintiffs entitlement to alimony is de novo.\nAs our statutes outline, alimony is comprised of two separate inquiries. First is a determination of whether a spouse is entitled to alimony. N.C. Gen. Stat. \u00a7 50-16.3A(a) (1999). Entitlement to alimony requires that one spouse be a dependent spouse and the other be a supporting spouse. Id. If one is entitled to alimony, the second determination is the amount of alimony to be awarded. N.C. Gen. Stat. \u00a7 50-16.3[A](b). We review the first inquiry de novo, Rickert v. Rickert, 282 N.C. 373, 379, 193 S.E.2d 79, 82 (1972), and the second under an abuse of discretion standard, Quick v. Quick, 305 N.C. 446, 453, 290 S.E.2d 653, 658 (1982).\nBarrett v. Barrett, 140 N.C. App. 369, 371, 536 S.E.2d 642, 644 (2000) (emphasis in original).\nN.C. Gen. Stat. \u00a7 50-16.3A (2009) sets forth when alimony may be awarded:\n(a) Entitlement. \u2014 In an action brought pursuant to Chapter 50 of the General Statutes, either party may move for alimony. The court shall award alimony to the dependent spouse upon a finding that one spouse is a dependent spouse, that the other spouse is a supporting spouse, and that an award of alimony is equitable after considering all relevant factors, including those set out in subsection (b) of this section. If the court finds that the dependent spouse participated in an act of illicit sexual behavior, as defined in G.S. 50-16.lA(3)a., during the marriage and prior to or on the date of separation, the court shall not award alimony. If the court finds that the supporting spouse participated in an act of illicit sexual behavior, as defined in G.S. 50-16.lA(3)a., during the marriage and prior to or on the date of separation, then the court shall order that alimony be paid to a dependent spouse. If the court finds that the dependent and the supporting spouse each participated in an act of illicit sexual behavior during the marriage and prior to or on the date of separation, then alimony shall be denied or awarded in the discretion of the court after consideration of all of the circumstances. Any act of illicit sexual behavior by either party that has been condoned by the other party shall not be considered by the court. . . .\n\u201cIllicit sexual behavior\u201d is one of the eight forms of \u201cmarital misconduct\u201d as defined by N.C. Gen. Stat. \u00a7 50-16.1A(3) (2009). \u201cIllicit sexual behavior\u201d is treated differently from all other forms of \u201cmarital misconduct,\u201d as the trial court has the discretion to weigh all of the other forms of \u201cmarital misconduct\u201d and to determine what effect, if any, the misconduct should have upon the alimony award. See N.C. Gen. Stat. \u00a7 50-16.3A(b) (\u201cThe court shall exercise its discretion in determining the amount, duration, and manner of payment of alimony. . . . In determining the amount, duration, and manner of payment of alimony, the court shall consider all relevant factors, including: (1) The marital misconduct of either of the spouses. . . As to \u201cillicit sexual behavior\u201d only, N.C. Gen. Stat. \u00a7 50-16.3A(a) eliminates the trial court\u2019s discretion to weigh the marital misconduct of the parties unless both parties have committed \u201cillicit sexual behavior.\u201d If only the dependent spouse has engaged in uncondoned \u201cillicit sexual behavior\u201d during the marriage and prior to the date of separation, the trial court cannot award alimony, even if the supporting spouse has committed egregious \u201cmarital misconduct\u201d of another sort. See id.\nN.C. Gen. Stat. \u00a7 50-16.lA(3)a defines \u201cillicit sexual behavior\u201d as \u201cacts of sexual or deviate sexual intercourse, deviate sexual acts, or sexual acts defined in G.S. 14-27.1(4), voluntarily engaged in by a spouse with someone other than the other spouse[.]\u201d Thus, N.C. Gen. Stat. \u00a7 50-16.1A(3) establishes four categories of sexual misconduct:\n(1) \u201csexual intercourse\u201d\n(2) \u201cdeviate sexual intercourse\u201d\n(3) \u201cdeviate sexual acts\u201d\n(4) \u201csexual acts as defined in.[N.C. Gen. Stat. \u00a7] 14-27.1(4).\u201d\nBecause the trial court\u2019s finding of fact was that plaintiff had allowed \u201cMr. Cline to penetrate her vagina either with his finger or his penis on at least one or more occasions [,]\u201d the trial court did not clearly find one particular form of \u201csexual misconduct\u201d but instead found one or the other; it is also unclear whether the trial court found that both might have occurred, one on one occasion and one on another. So based upon the trial court\u2019s findings of fact, two of these categories of sexual misconduct are relevant to this case: \u201csexual intercourse\u201d and \u201csexual acts as defined in [N.C. Gen. Stat. \u00a7] 14-27.1(4).\u201d\nThe definition of \u201csexual intercourse\u201d is clear:\nThe terms \u201ccarnal knowledge\u201d and \u201csexual intercourse\u201d are synonymous. There is \u201ccarnal knowledge\u201d or \u201csexual intercourse\u201d in a legal sense if there is the slightest penetration of the sexual organ of the female by the sexual organ of the male. It is not necessary that the vagina be entered or that the hymen be ruptured; the entering of the vulva or labia is sufficient. G.S. 14-23; State v. Monds, 130 N.C. 697, 41 S.E. 789; State v. Hargrave, 65 N.C. 466; State v. Storkey, 63 N.C. 7; Burdick: Law of Crime, section 477; 44 Am. Jur., Rape, section 3; 52 C.J. Rape, sections 23, 24.\nState v. Bowman, 232 N.C. 374, 375-76, 61 S.E.2d 107, 108 (1950). The trial court\u2019s finding of penetration of the plaintiff\u2019s vagina by Mr. Cline\u2019s penis satisfies the definition of \u201csexual intercourse.\u201d Plaintiff argues that the trial court\u2019s finding of \u201csexual intercourse\u201d is not supported by the evidence. Plaintiff testified that she did not have \u201csexual intercourse\u201d with Mr. Cline. Mr. Cline testified that he was unable to penetrate plaintiff\u2019s vagina with his penis due to erectile dysfunction. Plaintiff is correct that there was no direct evidence of \u201csexual intercourse\u201d between herself and Mr. Cline. Defendant responds that under the doctrine of \u201cinclination and opportunity,\u201d the evidence was sufficient to support the trial court\u2019s finding of \u201csexual intercourse.\u201d Our Supreme Court has declared that:\nAdultery is nearly always proved by circumstantial evidence. 1 Robert E. Lee, North Carolina Family Law \u00a7 65 (4th ed. 1979). Circumstantial evidence \u201cis often the only kind of evidence available, as misconduct of this sort is usually clandestine and secret.\u201d Id. Where adultery is sought to be proved by circumstantial evidence, resort to the opportunity and inclination doctrine is usually made. Id. Under this doctrine, adultery is presumed if the following can be shown: (1) the adulterous disposition, or inclination, of the parties; and (2) the opportunity created to satisfy their mutual adulterous inclinations. Id.\nIn Owens v. Owens, 28 N.C. App. 713, 222 S.E.2d 704, disc. rev. denied, 290 N.C. 95, 225 S.E.2d 324 (1976), the North Carolina Court of Appeals warned against adopting broad rules to prove adultery. The court said:\nWe consider it unwise to adopt general rules as to what will or will not constitute proof of adultery, but the determination must be made with reference to the facts of each case. In some cases evidence of opportunity and incriminating or improper circumstances, without evidence of inclination or adulterous disposition, may be such as to lead a just and reasonable [person] to the conclusion of adulterous intercourse.\nId. at 716, 222 S.E.2d at 706 (footnote added).\nIn re Estate of Trogdon, 330 N.C. 143, 148-49, 409 S.E.2d 897, 900 (1991). We agree with defendant that the testimony of both plaintiff and Mr. Cline demonstrates their mutual \u201cadulterous inclination\u201d and their opportunity to \u201csatisfy their mutual adulterous inclinations.\u201d See id.\nSince the trial court phrased its finding of fact in the alternative, it is unclear if it actually did find that plaintiff and Mr. Cline had \u201csexual intercourse.\u201d We must therefore also address the finding as to penetration of plaintiffs vagina by Mr. Cline\u2019s finger, which arguably falls under N.C. Gen. Stat. \u00a7 50-16.lA(3)a, which addresses \u201csexual acts as defined in [N.C. Gen. Stat. \u00a7] 14-27.1(4).\u201d\nN.C. Gen. Stat. \u00a7 14-27.1(4) (2009) defines \u201csexual act\u201d as follows:\n(4) \u201cSexual act\u201d means cunnilingus, fellatio, analingus, or anal intercourse, but does not include vaginal intercourse. Sexual act also means the penetration, however slight, by any object into the genital or anal opening of another person\u2019s body: provided, that it shall be an affirmative defense that the penetration was for accepted medical purposes.\n\u201cSexual acts\u201d are distinguished from other forms of \u201csexual contact\u201d as N.C. Gen. Stat. \u00a7 14-27.1(5) defines \u201csexual contact\u201d as \u201c(i) touching the sexual organ, anus, breast, groin, or buttocks of any person, (ii) a person touching another person with their own sexual organ, anus, breast, groin, or buttocks, or (iii) a person ejaculating, emitting, or placing semen, urine, or feces upon any part of another person.\u201d Thus, a \u201csexual act\u201d requires \u201cpenetration, however slight, by any object into the genital or anal opening of another person\u2019s body[,]\u201d while touching without penetration would be \u201csexual contact.\u201d The trial court\u2019s finding of fact that Mr. Cline\u2019s finger penetrated plaintiff\u2019s vagina is a finding of a \u201csexual act\u201d as defined by N.C. Gen. Stat. \u00a7 14.27.1(4).\nJust as for \u201csexual intercourse,\u201d the testimony of plaintiff and Mr. Cline provides sufficient evidence to support the trial court\u2019s finding of fact. Although more certain and clear evidence is required for proof of a \u201csexual act\u201d under N.C. Gen. Stat. \u00a7 14.27.1(4) in the criminal context, in alimony claims our Supreme Court has long endorsed proof of \u201csexual intercourse\u201d by the doctrine of inclination and opportunity, and we see no reason why this doctrine would not also apply to other forms of \u201cillicit sexual behavior.\u201d See N.C. Gen. Stat. \u00a7 50-16. lA(3)a. The trial court did not err by its finding that plaintiff \u201cvoluntarily participated in an act of illicit sexual behavior as defined by N.C.G.S. \u00a750-16.lA(3)(a).\u201d\nB. Date of separation\nPlaintiff next argues that even if plaintiff\u2019s conduct was \u201cillicit sexual behavior[,]\u201d that the \u201ctrial court erred as a matter of law in concluding that the parties were not \u2018separated\u2019 at the time of the \u2018sexual encounters\u2019 between\u201d plaintiff and Mr. Cline. Pursuant to N.C. Gen. Stat. \u00a7 50-16.1A(3)a, the dependent spouse\u2019s \u201cillicit sexual behavior\u201d must occur \u201cduring the marriage and prior to or on the date of separation\u201d in order to be a bar to alimony.\nThe trial court\u2019s findings of fact as to the date of separation are as follows:\n15. In addition to her inconsistent testimony with regard to sexual relations, the Plaintiff has contended that she was \u201cseparated\u201d at the time of the sexual behavior. Although there was some physical separation of the parties after a choking incident involving the parties\u2019 youngest son in the summer of 1999, neither party had expressed to the other party they wanted to separate nor in fact intended to permanently separate during the summer of 1999 through Christmas of 1999. Defendant continued to maintain all of his belongings at the marital residence and continued to have his mail delivered there. He did household chores and only occasionally slept at his dental office during this period of time.\n16. Neither party sought the advice of attorneys, executed any type of separation or property settlement agreement nor expressed a contention to permanently end their marriage.\nPlaintiff argues that the trial court found that in order for the parties to have been \u201cseparated\u201d that plaintiff \u201chad to verbalize unequivocally, overtly, and expressly to [defendant] her intention for him never to return to live with her in the marital home, and her intention for the parties\u2019 separation to be \u2018permanent.\u2019 \u201d Defendant responds that plaintiff\u2019s argument is based upon \u201can incomplete recitation of the trial court\u2019s findings[,]\u201d and that in fact, the trial court properly \u201cviewed the totality of the evidence from both parties and after weighing the credibility of the testimony and weighting the evidence, the trial court determined there had been no actual separation of the parties.\u201d\nThe phrase \u201cthe date of separation^]\u201d as used in N.C. Gen. Stat. \u00a7 50-16.3A(3), is not defined by the statutory provisions regarding alimony, but has been addressed by our courts in the context of N.C. Gen. Stat. \u00a7 50-6, which addresses absolute divorce. N.C. Gen. Stat. \u00a7 50-6 (2009) provides that \u201c[m]arriages may be dissolved and the parties thereto divorced from the bonds of matrimony on the application of either party, if and when the husband and wife have lived separate and apart for one year . . . .\u201d The date upon which the husband and wife begin to live \u201cseparate and apart\u201d is commonly known as the date of separation. We have noted that \u201c[t]he words \u2018separate and apart,\u2019 as used in G.S. 50-6, mean that there must be both a physical separation and an intention on the part of at least one of the parties to cease the matrimonial cohabitation.\u201d Myers v. Myers, 62 N.C. App. 291, 294, 302 S.E.2d 476, 479 (1983) (citing Mallard v. Mallard, 234 N.C. 654, 68 S.E.2d 247 (1951) and Earles v. Earles, 29 N.C. App. 348, 224 S.E.2d 284 (1976)). Further,\n[i]n addressing whether a husband and wife have lived \u201cseparate and apart,\u201d this Court has repeatedly held that these words require \u201cboth a physical separation and an intention on the part of at least one of the parties to cease the matrimonial cohabitation.\u201d Earles v. Earles, 29 N.C. App. 348, 349, 224 S.E.2d 284, 286 (1976). See also Myers v. Myers, 62 N.C. App. 291, 294, 302 S.E.2d 476, 479 (1983); Daniel v. Daniel, 132 N.C. App. 217, 219, 510 S.E.2d 689, 690 (1999). Our courts have never required that the remaining party must also have knowledge of the other party\u2019s intent to cease cohabitation; therefore, we decline to do so now, especially when there is overwhelming evidence that all the requirements of Section 50-6 were met.\nSmith v. Smith, 151 N.C. App. 130, 132-33, 564 S.E.2d 591, 592-93 (2002). In addition to the intention of at least one of the spouses to separate, the parties must physically separate in such a way that indicates \u201c[a] cessation of cohabitation of husband and wife.\u201d Dudley v. Dudley, 225 N.C. 83, 85, 33 S.E.2d 489, 490 (1945) (quotation marks omitted).\n[Separation implies . . . the living apart for such period in such a manner that those in the neighborhood may see that the husband and wife are not living together....\nMarriage is not a private affair, involving the contracting parties alone. Society has an interest in the marital status of its members, and when a husband and wife live in the same house and hold themselves out to the world as man and wife, a divorce will not be granted on the ground of separation, when the only evidence of such separation must, in the language of the Supreme Court of Louisiana (in the case of Hava v. Chavigny, 147 La., 331, 84 So., 892), \u201cbe sought behind the closed doors of the matrimonial domicile.\u201d Our statute contemplates the living separately and apart from each other, the complete cessation of cohabitation. See Taylor v. Taylor, ante, 80.\nId. at 86, 33 S.E.2d at 491 (citations omitted). Here, there was evidence that at times, the parties would have an argument and defendant \u201cwould go to the office for a couple of days and cool down or whatever.... [then he] would go, and then [he] would basically come back.\u201d However, even during these times when he went to stay in his office, defendant still would return to the marital home to take care of household chores, pay bills, and take the children to activities. Some of the parties\u2019 family members and acquaintances testified that they were unaware of any separation of the parties prior to their final separation in 2006; others testified that the parties had separated for a period of time in 1999. The trial court weighed all of the evidence and determined the credibility of the witnesses, and its findings of fact are fully supported by the evidence. The trial court\u2019s findings of fact and conclusions of law do not indicate any error of law as to the definition of \u201cseparation.\u201d This argument is overruled.\nC. Attorney fees\nPlaintiff also argues that the trial court erred by denial of her claim for attorney fees based upon N.C. Gen. Stat. \u00a7 50-16.4. Plaintiff concedes that if this Court determines that the trial court properly denied her claim for alimony, her claim for attorney fees was also properly denied. As we have determined that the trial court did not err by denying plaintiff\u2019s alimony claim, there was no basis for the trial court to award her attorney fees. This argument is dismissed.\nD. Simultaneous hearing of equitable distribution and alimony claims\nPlaintiffs last argument addresses the permissible timing of the alimony and equitable distribution orders. Plaintiff argues that \u201cthe trial court erred as a matter of law in simultaneously conducting a hearing for both equitable distribution and alimony and in simultaneously rendering judgment on both claims, in contravention of the express provisions of statutory and case law.\u201d Plaintiff bases this argument primarily upon N.C. Gen. Stat. \u00a7 50-20(f) and cases interpreting it. N.C. Gen. Stat. \u00a7 50-20(f) (2009) provides as follows:\n(f) The court shall provide for an equitable distribution without regard to alimony for either party or support of the children of both parties. After the determination of an equitable distribution, the court, upon request of either party, shall consider whether an order for alimony or child support should be modified or vacated pursuant to G.S. 50-16.9 or 50-13.7.\n(Emphasis added.) Subsequent cases have stated that alimony must be determined after equitable distribution, because of \u201cthe obvious relationship that exists between the property that one has and his or her need for support and the ability to furnish it.\u201d Capps v. Capps, 69 N.C. App. 755, 757, 318 S.E.2d 346, 348 (1984).\nDefendant argues that if it was error to hear the two claims together, plaintiff is barred by the doctrine of invited error from consideration of this argument. Plaintiff has waived any argument that the \u201ctrial court erred by conducting a single proceeding for both alimony and equitable distribution,\u201d as plaintiff did not request separate hearings and never objected to having both claims heard at the same time.\nInvited error has been defined as\n\u201ca legal error that is not a cause for complaint because the error occurred through the fault of the party now complaining.\u201d The evidentiary scholars have provided similar definitions; e.g., \u201cthe party who induces an error can\u2019t take advantage of it on appeal\u201d, or more colloquially, \u201cyou can\u2019t complain about a result you caused.\u201d\n21 Charles Alan Wright and Kenneth W. Graham, Jr., Federal Practice and Procedure \u00a7 5039.2, at 841 (2d ed.2005) (footnotes omitted); see also Frugard v. Pritchard, 338 N.C. 508, 512, 450 S.E.2d 744, 746 (1994) (\u201cA party may not complain of action which he induced.\u201d (citations omitted)).\nBoykin v. Wilson Med. Ctr., 201 N.C. App. 559, 563, 686 S.E.2d 913, 916 (2009), disc. review denied, 363 N.C. 853, 694 S.E.2d 200 (2010).\nIn addition, defendant notes that plaintiff cannot demonstrate any prejudice because the trial court did actually enter the alimony order after the equitable distribution order, and the basis for the denial of plaintiffs alimony claim was not her financial need for support, which may be affected by the property distribution, but instead her marital fault. Also, plaintiff has requested only reversal of the order denying alimony and not the equitable distribution award. If it was error for the trial court to hear both claims together, this error could not be corrected without reversal of both orders.\nWe agree that even if we were to assume arguendo that the trial court should not have heard the alimony and equitable distribution claims together, plaintiff invited this error and was not prejudiced by it. We also note that N.C. Gen. Stat. \u00a7 50-20(f) does not address the details of scheduling of hearings, but only what the trial court should consider as to each aspect of the case, and that even if the trial court heard all of the claims in one trial, the trial court entered two separate and distinct orders. This argument is without merit.\nIV. Conclusion\nFor the reasons as stated above, the order denying alimony is affirmed. We remand the matter of equitable distribution to the trial court for additional findings of fact regarding the classification of the Darlington Avenue property, for conclusions of law based upon these findings of fact, and for adjustment to the distributive award, if the trial court should find and conclude that any adjustment is warranted.\nAFFIRMED IN PART, REVERSED AND REMANDED IN PART.\nJudges HUNTER, Robert C. and HUNTER, JR., Robert N. concur.\n. The trial court specifically found that \u201cthe Wife\u2019s expert had more credibility than the Husband\u2019s expert\u201d and \u201cadopt[ed] Wife\u2019s evidence regarding the business valuation with the following exceptions!,]\u201d which were an adjustment to the capitalization rate and use of the weighted average of net income instead of the simple average.\n. The order also incorporated the provisions of the Pretrial Order \u201cfiled on June 30, 2009\u201d \u201cas if fully set forth in this Order\u201d but this order does not add any findings which may assist in classification. The Pretrial Order states that the Darlington Avenue property is titled \u201cJt[,[\u201d or jointly, although it does not state that it is titled as tenants by the entirety. The parties agreed on the value of the property as of the DOS and DOT but disagreed as to the classification of the property.\n. N.C. Gen. Stat. \u00a7 50-16.1A(3) lists the others:\n\u201cb. Involuntary separation of the spouses in consequence of a criminal act committed prior to the proceeding in which alimony is sought;\nc. Abandonment of the other spouse;\nd. Malicious turning out-of-doors of the other spouse;\ne. Cruel or barbarous treatment endangering the life of the other spouse;\nf. Indignities rendering the condition of the other spouse intolerable and life burdensome;\ng. Reckless spending of the income of either party, or the destruction, waste, diversion, or concealment of assets;\nh. Excessive use ofalcohol or drugs so as to render the condition of the other spouse intolerable and life burdensome;\ni. Willful failure to provide necessary subsistence according to one\u2019s means and condition so as to render the condition of the other spouse intolerable and life burdensome.\u201d\n. Plaintiff argues that the \u201cdeviate sexual intercourse\u201d and \u201cdeviate sexual acts\u201d are undefined and essentially too vague to be useful. As the acts as found by the trial court fall within the two better-defined categories of sexual misconduct, we will not attempt to discern the meaning of \u201cdeviate\u201d in the context of N.C. Gen. Stat. \u00a7 50-16.1A(3)a.", "type": "majority", "author": "STROUD, Judge." } ], "attorneys": [ "Jonathan McGirt, for plaintiff-appellee.", "Wyrick Robbins Yates & Ponton LLP, by K. Edward Greene and Tobias S. Hampson, for defendant-appellant." ], "corrections": "", "head_matter": "REBECCA W. ROMULUS, Plaintiff v. JOHN M. ROMULUS, Defendant\nNo. COA10-1453\n(Filed 20 September 2011)\n1. Divorce \u2014 equitable distribution \u2014 marital property \u2014 post-separation appreciation\nThe trial court\u2019s findings in an equitable distribution action supported its conclusion of law that the post separation appreciation of defendant\u2019s dental practice was divisible property. Essentially, the trial court found that it could not determine the cause of the postseparation increase in value and applied the statutory presumption that postseparation increases in the value of marital property are divisible.\n2. Divorce \u2014 equitable distribution \u2014 separate property\u2014 findings\nA conclusion of law in an equitable distribution case classifying real estate as separate property was remanded where there were no supporting findings as to the facts necessary for the determination, even though ample evidence was presented.\n3. Divorce \u2014 equitable distribution \u2014 separate property \u2014 testimony of donor\nThe trial court erred by concluding in an equitable distribution case that certain real estate was plaintiff\u2019s separate property. The trial court should consider the credibility and weight of all the relevant evidence, including the testimonial evidence of the donor spouse as to her intent in conveying the separate property to the parties as tenants by the entireties. Any statement in Warren v. Warren, 175 N.C. App. 509, adopting a rule that the donor\u2019s testimony alone cannot satisfy the burden of rebutting the marital gift presumption was obiter dicta.\n4. Divorce \u2014 equitable distribution \u2014 rental income and losses\nThere was sufficient evidence in an equitable distribution action to support the trial court\u2019s findings as to rental income and losses from certain property. The trial court\u2019s findings adequately addressed the issues raised.\n5. Divorce \u2014 alimony\u2014illicit sexual behavior \u2014 doctrine of inclination and opportunity\nThe trial court did not err when ruling on an alimony claim by finding that plaintiff had voluntarily participated in an act of illicit sexual behavior as defined by N.C.G.S. \u00a7 50-16.lA(3)(a). Although more certain and clear evidence is required for proof of a sexual act in the criminal context, in alimony claims North Carolina has long endorsed proof of intercourse by the doctrine of inclination and opportunity, and there is no reason that this doctrine would not apply to illicit sexual behavior.\n6. Divorce \u2014 alimony\u2014illicit sexual behavior \u2014 date of separation\nThe trial court did not err in its findings or conclusions in determining the date the parties separated in an alimony action in which one party was found to have engaged in, illicit sexual behavior.\n7. Attorney Fees \u2014 alimony\u2014properly denied\nThe trial court properly denied plaintiffs claim for attorney fees in an alimony action where the court properly denied the alimony claim.\n8. Divorce \u2014 alimony\u2014equitable distribution \u2014 simultaneous hearing \u2014 distinct orders\nAny error in the trial court simultaneously hearing alimony and equitable distribution claims was invited by plaintiff and was not prejudicial to her. Even if the trial court heard all of the claims in one trial, the court entered two separate and distinct orders.\nAppeal by plaintiff and defendant from a judgment entered 4 March 2010 and order entered 5 March 2010 by Judge Jeffrey Evan Noecker in District Court, New Hanover County. Heard in the Court of Appeals 8 June 2011.\nJonathan McGirt, for plaintiff-appellee.\nWyrick Robbins Yates & Ponton LLP, by K. Edward Greene and Tobias S. Hampson, for defendant-appellant." }, "file_name": "0495-01", "first_page_order": 505, "last_page_order": 539 }