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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the
print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
LISA K. DALGEWICZ (HEARTEN), Plaintiff, v. EDWARD J. DALGEWICZ, Defendant
Filed: 21 December 2004
1. Process and Service_trial date_service at known address
An equitable distribution defendant received adequate notice where he was duly served
with a civil summons and complaint; plaintiff's counsel took every reasonable step to serve
defendant properly, including sending correspondence by certified mail to an address that was
provided by defendant's counsel, kept on record at the clerk's office, and used by defendant for
other correspondence; and a court employee served defendant notice of the trial court calendar
via approved methods.
2. Divorce_equitable distribution_classification and valuation of property
An equitable distribution judgment was remanded where the trial court did not properly
classify and value a residence, a vehicle, and a contract. Whether the court's method of
distribution was unreasonable or arbitrary could not be discerned without proper classification,
valuation, and listing of all of the property owned by the parties.
3. Divorce_equitable distribution_attorney fees
The trial court did not abuse its discretion by awarding attorney fees to the plaintiff
pursuant to N.C.G.S. § 50-21(e) in an equitable distribution case where the evidence supported
the court's findings that defendant had refused to attend hearings, provide responses to
discovery, or pay financial obligations as ordered.
Appeal by defendant from order entered 14 January 2003, judgment entered 31 March 2003,
and order entered 29 September 2003, by Judge Marvin P. Pope, Jr., in Buncombe County District
Court. Heard in the Court of Appeals 11 October 2004.
THE McDONALD LAW OFFICE, P.A., by Diane K. McDonald, for plaintiff-appellee.
JAMES, McELROY & DIEHL, P.A., by William K. Diehl, Jr., and Preston O. Odom, III, for
Edward J. Dalgewicz (defendant) appeals from a judgment of equitable distribution and
orders for sanctions and attorney's fees in favor of Lisa K. Dalgewicz (plaintiff). For the reasons
discussed herein, we affirm in part and reverse and remand in part.
The facts and procedural history pertinent to the instant appeal are as follows: Defendantand plaintiff were married on 5 April 1985. The couple resided in Asheville, North Carolina, until
their separation in the spring of 2001. Following their separation, defendant moved to Florida and
plaintiff moved to California.
On 23 April 2001, plaintiff filed a complaint against defendant, requesting that the trial court
award her custody of the couple's two children, child support, post-separation support, alimony,
equitable distribution, a restraining order, and attorney's fees. On 13 June 2001, defendant filed an
answer and counterclaim, as well as interrogatories and requests for production. In his answer and
counterclaim, defendant requested that the trial court deny plaintiff equitable distribution, grant
defendant custody of the children, and order plaintiff to pay child support.
On 12 July 2001, plaintiff and defendant entered into a consent order whereby the couple's
Merrill Lynch account was assigned to plaintiff for the payment of marital debt. The consent order
required that defendant pay plaintiff $2,107.00 in child support, and it continued a 10 May 2001
order preventing defendant's waste of his bonus payments.
On 1 August 2001, defendant's counsel filed a motion to withdraw, which the trial court
granted in an order filed 23 August 2001. On 17 August 2001, defendant and plaintiff entered into
a second consent order, whereby defendant agreed to borrow the money to pay the deficiency
produced by the forced sale of [the residence located at] 9 Hickory Ridge[,] and to hold plaintiff
harmless for losses she may incur for his failure to make full payment of the loan. Following the
dismissal of his counsel on 23 August 2001, defendant retained counsel in both North Carolina and
On 10 October 2001, plaintiff filed an equitable distribution affidavit, which she later
amended on 10 December 2001 and 14 January 2003. On 30 October 2001, the trial court entered
an order directing defendant to file an equitable distribution affidavit and directing both parties to
attend a conference to resolve the issues of the case within sixty days of the completion of discovery.
On 8 November 2001, the trial court granted defendant's motion for extension of time to file his
equitable distribution affidavit, and on 21 November 2001, defendant filed the equitable distribution
affidavit On 4 December 2001, the trial court held a hearing to determine whether to award plaintiff
post-separation support and attorney's fees. While defendant was not present at the hearing, he was
represented by counsel. In an order filed 14 December 2001, the trial court found that plaintiff was
a dependent spouse and that defendant earned a $250,000.00 base salary plus $500,000.00 in
bonuses. The trial court also found that, pursuant to defendant's employment contract with
Associated Packaging Enterprises, Inc. (APEI), defendant would receive $1.1 million to $1.3
million in non-reoccurring bonuses. The trial court concluded that plaintiff was entitled to a writ
of possession to the home and property located at 268 Racquet Club Road,
(See footnote 1)
and the trial court
ordered defendant to pay the monthly mortgage payment on the property and make any and all
arrears current within sixty days. The trial court further ordered that defendant pay temporary post-
separation support to plaintiff in the amount of $8,000.00 per month, as well as reasonable attorney's
fees related to the action.
On 14 January 2002, the trial court ordered that the residence located at 268 Racquet Club
Road be listed for sale within two weeks for $1.1 million, the estimated value according to
[plaintiff], and that all outstanding discovery be produced within thirty days. On 24 January 2002,
the trial court issued an order finding as fact that defendant had not made a spousal support payment
required by the 14 December 2001 order, and that defendant had neither made the mortgage
current, nor made any mortgage payments as they c[a]me due. Based upon these findings of fact,
the trial court concluded that defendant was in contempt of court, and the trial court ordered
defendant to appear for sentencing in district court on 11 February 2002. The trial court further
ordered that plaintiff was entitled to attachment of defendant's income from his contract with APEI,
and the trial court directed defendant to be prepared at sentencing to [s]how [c]ause why said
remedy should not be instituted against him. On 8 March 2002, defendant's North Carolina counsel filed a motion to withdraw, citing
defendant's refusal to compensate counsel for services rendered in the matter. The trial court
granted counsel's motion on 25 April 2002. Following the motion to withdraw, defendant filed an
emergency motion to continue depositions scheduled for 18 March 2002 and 19 March 2002, citing
the requirement that defendant's Florida counsel associate with local counsel in the matter. On 18
March 2002, defendant gave notice of appearance for new North Carolina counsel, whose services
were limited to the sole purpose of assisting non-North Carolina licensed attorney[.]
On 18 March 2002, the trial court held a hearing on all pending issues. Present at the hearing
were plaintiff, her counsel, defendant's Florida counsel, and defendant's new North Carolina
counsel. Following the hearing, the trial court issued an order for the arrest of defendant for failure
to appear at the 18 March 2002 hearing. The trial court continued the previous requirement that
defendant make current the mortgage on 268 Racquet Club Road and the previous attachments on
defendant's APEI paycheck.
On 23 October 2002, both defendant's North Carolina counsel and Florida counsel moved
the trial court to withdraw from representation. Defendant's Florida counsel requested that all
further pleadings, notices, and correspondence be directed to defendant via the following address:
EDWARD J. DALGEWICZ c/o APEI, 900 South US Highway One,
Suite 207, Jupiter, FL 33477
On 30 October 2002, the trial court granted defendant's remaining counsel's motions to
withdraw. The same day, plaintiff filed a motion for sanctions against defendant, alleging that
defendant had never appeared for a hearing in the matter, had failed to appear at the court-ordered
mediation, and had failed to appropriately respond to discovery. Plaintiff advised the trial court that
defendant's counsel had recently moved the trial court to withdraw, and that it is anticipated by
[plaintiff] that [defendant] will fail to show for the equitable distribution trial. Plaintiff requested
that the trial court award plaintiff costs and attorney's fees and dismiss defendant's claim for
equitable distribution. Plaintiff's counsel certified that a copy of the motion was served upon
defendant's counsel via facsimile.
On 14 January 2003, the trial court filed an Order For Sanctions in the case, in which thetrial court found as fact that defendant failed to participate in court-ordered mediation, failed to
appear at any hearing in the matter, was thus held in contempt, and had several orders for his arrest
issued against him. The trial court further found that an equitable distribution trial had been
scheduled and defendant had failed to appear at the hearing regarding sanctions. Based upon these
findings of fact, the trial court concluded that plaintiff is entitled to be awarded the sanctions
against [defendant] as set out in her Motion filed with this Court[,] and the trial court ordered that
defendant's equitable distribution claim be dismissed.
On 31 March 2003, the trial court entered judgment on plaintiff's equitable distribution
claim. The trial court first noted that defendant was not present at the 14 January 2003 hearing, nor
was an attorney or other agent on his behalf. The trial court then entered the following pertinent
findings of fact:
16. [T]hat the evidence and the facts of this matter are such that
an equal division of the marital estate would not be equitable;
. . . .
c. The Plaintiff actively negotiated the contract with
APEI . . . which contains those benefits and rights that
are marital assets[.]
d. The Plaintiff was supportive and actively involved in
the development of the career of the Defendant[.]
e. Despite the entry of Orders requiring the Defendant to
pay the mortgage on the marital home located at 268
Racquet Club Road . . . the Defendant refused and
never despite being held in contempt of this Court
made one mortgage payment; that as a consequence,
the parties were notified of a foreclosure of said real
estate [and] the Plaintiff worked very hard to find a
buyer who ultimately acquired the property by paying
off the mortgage held by BB&T in the amount of
17. [T]hat the actions of the Defendant have caused the Plaintiff
to expend a substantial amount of money; that the Defendant
has refused to attend hearings, provide responses to
discovery, [and] pay his financial obligations as ordered by
the Court . . . that he has been inattentive to his obligations in
this matter, causing a great deal of time for the Court and the
Plaintiff; that the actions of the Defendant constitute those
acts prohibited by NCGS §50-21(e), and will entitle thePlaintiff herein to recover from the Defendant reasonable
expenses and damages incurred because of these acts,
including reasonable attorney's fees which shall be submitted
to the Court.
Based upon its findings of fact, the trial court entered the following pertinent conclusions
4. That the Plaintiff is entitled to an equitable distribution of the
5. That the contract entered into by the Defendant with APEI .
. . is a marital asset as are those benefits and monies flowing
from it . . . [and] these rights of the Plaintiff shall survive any
anticipated corporate changes in identity or organization . . .
or conversion of Defendant's rights under the contract[.]
6. The Defendant is guilty of waste of a marital asset, to wit:
[the residence located at] 268 Racquet Club Road[.]
Based in part on these findings of fact and conclusions of law, the trial court entered the
following pertinent orders:
1. The Defendant shall pay to the Plaintiff . . . $470,000 for his
waste of [the residence located at] 268 Racquet Club Road[.]
2. The Defendant shall pay to the Plaintiff . . . one-half all
bonuses received by him or to be received by him for the
years 2001, 2002, 2003, and 2004[.]
3. The Defendant shall pay to the Plaintiff . . . $55,000 which is
one-half of the money used by the Defendant to pay credit
card bills immediately following separation from the bonuses
paid from the contract [with APEI.]
4. The Defendant shall pay to the Plaintiff . . . $35,000 for his
waste of the vehicle, [the] Lincoln Navigator driven by the
Plaintiff at the time of separation, and which is subject to
. . . .
7. The Defendant shall pay to the Plaintiff . . . $20,253.48 for
his actions which violated NCGS §50-21(e).
On 10 April 2003, defendant filed a motion to set aside the 31 March 2003 judgment and the
14 January 2003 order pursuant to N.C. Gen. Stat. § 1A-1, Rules 59 and 60. Defendant contended
that he had no notice of the equitable distribution hearing and was thus entitled to relief from the
judgment because of the irregularities, mistake, inadvertence, surprise, and excusable neglectconnected to the action. Defendant further asserted that he was entitled to relief from the order for
sanctions because he had no notice of that proceeding either.
On 29 September 2003, the trial court issued an order denying defendant's Rule 59 and Rule
60 motions, concluding in pertinent part that defendant had been provided sufficient notice and was
neglectful and inattentive to his case. Defendant appeals.
We note initially that defendant's brief contains arguments supporting only fifty-three of his
original ninety-two assignments of error. Pursuant to N.C.R. App. P. 28(b)(6) (2004), the thirty-nine
omitted assignments of error are deemed abandoned. Therefore, we limit our present review to those
assignments of error properly preserved by defendant for appeal.
The dispositive issue on appeal is whether the trial court erred in its equitable distribution
judgment. Defendant argues that he did not receive sufficient notice of the equitable distribution
hearing and that the equitable distribution judgment is not supported by sufficient findings of fact
or conclusions of law. Although we conclude that defendant received proper notice of the equitable
distribution hearing, we reverse and remand the case for a new trial because we also conclude that
the trial court erred in its equitable distribution judgment.
I. Service of Process
 Notice and an opportunity to be heard prior to depriving a person of his property are
essential elements of due process of law which is guaranteed by the Fourteenth Amendment of the
United States Constitution and Article 1, section 17, of the North Carolina Constitution.
McDonald's Corp. v. Dwyer, 338 N.C. 445, 448, 450 S.E.2d 888, 891 (1994). Whether a party has
adequate notice is a question of law. Trivette v. Trivette, 162 N.C. App. 55, 58, 590 S.E.2d 298,
302 (2004). Adequate notice is defined as 'notice reasonably calculated, under all circumstances,
to apprise interested parties of the pendency of the action and afford them an opportunity to present
their objections.' Id. at 58-59, 590 S.E.2d at 302 (quoting Randleman v. Hinshaw, 267 N.C. 136,
140, 147 S.E.2d 902, 905 (1966) (citations omitted)). In the instant case, the record indicates that defendant was properly served with a civil
summons and complaint on 23 April 2003. Defendant does not deny that plaintiff's original and
amended complaints were served upon him properly, nor does defendant deny that he was properly
served with a civil summons as well as the trial court's 25 July 2002 order, which advised the parties
that the matter was set for an equitable distribution trial on 4 November 2002. Instead, defendant
asserts that because he did not receive actual notice of the equitable distribution trial scheduled for
14 January 2003, the trial court's order should be reversed. We disagree.
The record reflects that defendant was actively involved in the litigation of this matter until
the withdrawal of his North Carolina and Florida counsel in October 2002. In his motion to
withdraw, defendant's Florida counsel expressly requested that
all further pleadings, notices, and correspondence in this matter be
directed to the Defendant at the following address: EDWARD J.
DALGEWICZ c/o APEI, 900 South US Highway One, Suite 207,
Jupiter, FL 33477.
The Jupiter, Florida, address provided by defendant's Florida counsel was the same address listed
as defendant's current address in a motion for admission pro hac vice, filed on behalf of
defendant's Florida counsel on 31 August 2001, as well as the same address used by defendant to
receive correspondence from financial banks and the Department of Motor Vehicles. Defendant
never provided the trial court with another address, and plaintiff's counsel testified that her attempts
to serve defendant at other addresses were returned as unclaimed.
Following defendant's Florida counsel's motion to withdraw, plaintiff's counsel sent the trial
court a letter regarding the withdrawal of counsel and referring to the equitable distribution hearing
that was then set for 4 November 2002. Defendant was sent a copy of the letter via certified mail,
return receipt requested, at the Jupiter, Florida, address provided by defendant's Florida counsel.
Upon receipt of the letter, defendant signed and returned the certified receipt to plaintiff, indicating
that he had received the letter.
On 12 December 2002, the Office of the Clerk of the 28th Judicial District prepared the trial
calendar for the week of court that included the parties' equitable distribution trial. Wanda Ingle
(Ingle), Judicial Assistant for the 28th Judicial District, testified that she sent defendant a copy ofthe trial calendar at the Jupiter, Florida, address provided by defendant's Florida counsel. Although
Ingle addressed the calendar c/o API rather than c/o APEI, Ingle testified that nothing was
returned to the trial court stating that the calendar was undeliverable, and that if an envelope had
been returned it would have been placed in the case file. Furthermore, Ingle testified that she
complied with the typical procedure of her office, and sent the trial court calendar notice to the last
address provided to the trial court by defendant or his counsel. We note that other correspondence
sent to and received by defendant at the Jupiter, Florida, address did not include the indication c/o
APEI at all.
[I]t has long been the practice in this State that when a party to an action does not have
counsel, a copy of each calendar on which his action appears calendared for trial is mailed to him
at the last address available to the Clerk. Laroque v. Laroque, 46 N.C. App. 578, 581, 265 S.E.2d
444, 446, disc. review denied, 300 N.C. 558, 270 S.E.2d 109 (1980). In Thompson v. Thompson,
21 N.C. App. 215, 217, 203 S.E.2d 663, 665, cert. denied, 285 N.C. 596, 205 S.E.2d 727 (1974), this
Court stated the oft-cited rule that
A party to a legal action, having been duly served with process, is
bound to keep himself advised as to the time and date his cause is
calendared for trial for hearing; and when a case is listed on the court
calendar, he has notice of the time and date of the hearing.
In support of this assertion, we cited Cahoon v. Brinkley, 176 N.C. 5, 7-8, 96 S.E. 650, 651 (1918),
where our Supreme Court noted as follows:
This Court has held that When a man has business in court, the best
thing he can do is to attend it[,] and this has been often quoted and
reaffirmed. It has also been held that A litigant must pay the same
attention to a case in court that any one would give to business of
importance. Even when he has employed counsel, he cannot
abandon all attention to the case, and in this case the defendant well
knew he had no counsel. It has also been held that one who has been
made party to an action by summons is fixed with notice of all orders
and proceedings taken in open court.
In the instant case, we conclude that defendant received adequate notice of all hearings in
the matter. Defendant was duly served with a civil summons and complaint, and plaintiff's counsel
took every reasonable step to serve defendant properly, including sending correspondence viacertified mail to an address provided by defendant's counsel, kept on record at the Clerk's office,
and used by defendant to receive other forms of correspondence. An employee of the 28th Judicial
District served defendant notice of the trial court calendar via those methods approved by the
Buncombe County Trial Court Administrator's office. This Court has previously concluded that [a]
[d]efendant will not be permitted to frustrate the trial of the case or avoid the duties imposed by
orders entered by merely declining or refusing to attend trial. Thompson, 21 N.C. App. at 217, 203
S.E.2d at 665. Accordingly, defendant's first argument is overruled.
II. Equitable Distribution Judgment
 Defendant also argues that the trial court erred in the equitable distribution judgment.
Defendant asserts that the trial court's findings of fact do not support its determinations regarding
defendant's employment, the residence located at 268 Racquet Club Road, and plaintiff's vehicle.
Defendant further asserts that the trial court's findings of fact do not support the conclusions of law
regarding the unequal division of the marital estate and the imposition of attorney's fees.
The trial court is required to conduct a three-step process during an equitable distribution
hearing. Beightol v. Beightol, 90 N.C. App. 58, 63, 367 S.E.2d 347, 350, disc. review denied, 323
N.C. 171, 373 S.E.2d 104 (1988). These steps are: (1) to determine which property is marital
property, (2) to calculate the net value of the property, fair market value less encumbrances, and (3)
to distribute the property in an equitable manner. Id. This Court has previously recognized that
[a]ttempts by one or both spouses to deplete the marital estate or dispose of marital property after
the date of separation but before distribution may be considered by the court when making the
division, and any conversion of marital property for individual purposes may be charged against the
acting spouse's share. Sharp v. Sharp, 84 N.C. App. 128, 130, 351 S.E.2d 799, 800 (1987).
However, in Sharp, we noted that N.C. Gen. Stat. § 50-20(a) effectively provides for the 'freezing'
of the marital estate as of the date of the parties' separation. Marital assets, distributed thereafter,
are valued as of that date. Id. In determining the value of the property, the trial court must consider
the property's market value, if any, less the amount of any encumbrance serving to offset or reduce
the market value. Alexander v. Alexander, 68 N.C. App. 548, 550-51, 315 S.E.2d 772, 775 (1984). The trial court is required to make specific findings regarding the net value of each item,
determining the net market value as of the date the parties separated for each item distributed. See
N.C. Gen. Stat. § 50-20(c), (j) (2003).
In the instant case, the trial court made the following findings of fact with respect to the
residence located at 268 Racquet Club Road:
10. The Plaintiff testified that on the date of the separation, the
Plaintiff and the Defendant lived in a home located at 268
Racquet Club Road . . . . That on December 14, 2001, an
Order was entered . . . which found the Plaintiff to be a
dependent spouse and ordered among other things that the
Defendant pay the mortgage payments for 268 Racquet Club
Road . . . . That the Defendant failed and refused to make the
mortgage payments . . . . That following the hearing of the
matter the Defendant was found in contempt . . . . Further,
this Court has found that the nonpayment of the mortgage on
the property located at 268 Racquet Club Road would
constitute waste by the Defendant of a marital asset. That
said real estate was sold just prior to the closing on the
foreclosure; that in fact, the bank agreed to continue the
foreclosure hearing to allow for the sale of the real estate; that
said property was [sold] for $730,000 which resulted in a
substantial loss to the Plaintiff; that the real-estate is currently
re-listed for sale some four months later for $1,200,000 . . .
that there was a loss of $470,000 which was caused by the
Defendant's contempt of Court orders and his refusal to pay
Based upon this finding of fact, the trial court ordered that defendant pay plaintiff $470,000 for his
waste of a marital asset; that being the home at 268 Racquet Club Road[.] We conclude that the
trial court erred.
As discussed above, to enter a proper equitable distribution judgment, prior to distributing
the assets the trial court must classify and value all property owned by the parties at the date of
separation. And in doing all these things the court must be specific and detailed enough to enable
a reviewing court to determine what was done and its correctness. Carr v. Carr, 92 N.C. App. 378,
379, 374 S.E.2d 426, 427 (1988). In the instant case, although the trial court classified the residence
located at 268 Racquet Club Road as a marital asset, the trial court's findings of fact demonstrate
that the trial court failed to properly value the residence prior to distribution. Although we recognize
that [u]nless it affirmatively appears that the owner does not know the market value of his property,it is generally held that he is competent to testify as to its value[,] Highway Comm. v. Helderman,
285 N.C. 645, 652, 207 S.E.2d 720, 725 (1974), in the instant case, there is no indication in the
record that plaintiff testified to the value of the residence on the date of the parties' separation.
Instead, the trial court's findings reflect that the trial court was apprised of the value of the residence
four months later, when the residence was being sold for the second time following the date of
With respect to plaintiff's vehicle, the trial court made the following finding of fact:
14. That at the date of separation, the Plaintiff drove a vehicle, a
Lincoln Navigator which is valued at the time of the trial at
$35,000; that the Defendant refused to make the payments on
said vehicle, despite the fact that the Plaintiff had no income;
that said vehicle is subject to repossession.
Based upon this finding of fact, the trial court made the following order with respect to the vehicle:
4. The Defendant shall pay to the Plaintiff the sum of $35,000
for his waste of the vehicle, [the] Lincoln Navigator driven by
the Plaintiff at the time of the separation, and which is subject
We conclude that the trial court erred with respect to the Lincoln Navigator as well. Plaintiff
and defendant concede that the Lincoln Navigator was leased property. Because the vehicle was
leased, neither plaintiff nor defendant had any ownership or equity interest in it, and therefore the
trial court was prohibited from classifying and valuing it as a marital asset. Fox v. Fox, 103 N.C.
App. 13, 18, 404 S.E.2d 354, 356 (1991). Furthermore, as discussed above, to enter a proper
equitable distribution judgment, the trial court must specifically and particularly classify and value
all assets and debts maintained by the parties at the date of separation. However, the trial court in
the instant case made no findings of fact regarding the classification of the Lincoln Navigator or its
value on the date of separation.
We further conclude that the trial court erred with respect to defendant's contract with APEI.
Although in its equitable distribution judgment the trial court classified the contract as a marital
asset and detailed the provisions of the contract and the circumstances surrounding its formation,
the trial court failed to value the contract at the date of separation and to make those ultimatefindings necessary in an equitable distribution judgment.
Following proper classification and valuation of the parties' assets, the trial court is required
to divide and distribute the marital property equally, unless the court determines in the exercise of
its discretion that such a distribution is inequitable. Beightol, 90 N.C. App. at 63, 367 S.E.2d at
350. In the instant case, the trial court determined that equal distribution was inequitable, and thus
awarded plaintiff what appears to be a greater share of the marital estate. However, in light of our
foregoing conclusions, we are unable to determine whether the trial court properly determined that
equal distribution was inequitable in the instant case. Without the benefit of proper classification,
valuation, and listing of all the property owned by the parties, we cannot discern whether the trial
court's method of distribution was unreasonable or arbitrary. Although we recognize that [t]his
Court is hesitant to remand equitable distribution cases and even more hesitant to reverse an
equitable distribution judgment and grant the appellant a new trial[,] Glaspy v. Glaspy, 143 N.C.
App. 435, 444, 545 S.E.2d 782, 788 (2001), because of the number and degree of errors committed
by the trial court in the instant case, we conclude a new trial is required. Therefore, we reverse the
trial court's equitable distribution judgment, and we instruct the trial court to hear arguments and
receive evidence from both parties on remand, in order to address the errors discussed above and
to properly identify, classify, and value the parties' property as required by statutory law and case
III. Attorney's Fees
 Independent of its equitable distribution of the parties' property, the trial court ordered
that defendant pay plaintiff $20,253.48 for those actions which violated N.C. Gen. Stat. § 50-21(e).
On appeal, defendant asserts that the trial court abused its discretion in awarding plaintiff attorney's
fees. We disagree.
N.C. Gen. Stat. § 50-21(e)(1) (2003) allows the trial court to impose sanctions upon a party
in the form of attorney's fees where
The party has willfully obstructed or unreasonably delayed, or has
attempted to obstruct or unreasonably delay, discovery proceedings,
including failure to make discovery pursuant to G.S. 1A-1, Rule 37,
or has willfully obstructed or unreasonably delayed or attempted toobstruct or unreasonably delay any pending equitable distribution
This Court has previously held that whether to impose sanctions and which sanctions to
impose under G.S. § 50-21(e) are decisions vested in the trial court and reviewable on appeal for
abuse of discretion. Crutchfield v. Crutchfield, 132 N.C. App. 193, 195, 511 S.E.2d 31, 34 (1999).
In applying an abuse of discretion standard, this Court will uphold a trial court's order of sanctions
under section 50-21(e) unless it is 'manifestly unsupported by reason.' Id. (quoting White v. White,
312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985)).
In the instant case, the trial court made the following pertinent findings of fact with regard
to its imposition of sanctions:
15. That the parties were ordered to appear at a mediation of the
financial matters on July 25, 2002; that the Plaintiff appeared
with her attorney; that the Defendant did not appear[.]
. . . .
17. That a review of the record of this matter shows that the
actions of the Defendant have caused the Plaintiff to expend
a substantial amount of money; that the Defendant has
refused to attend hearings, provide responses to discovery,
pay his financial obligations as ordered by the Court as
evidenced by the Orders in the file holding . . . Defendant in
contempt and the necessity of the Plaintiff to seek the
attachment of the Defendant's income from APEI; that he has
been inattentive to his obligations i[n] this matter, causing a
great deal of time for the Court and the Plaintiff[.]
The trial court's findings of fact are supported by competent evidence in the record detailing
plaintiff's efforts to seek attachment of defendant's wages and defendant's failure to appear at any
hearing in the matter, including court-ordered mediation. In light of the trial court's findings of fact
and the record before us, we are unable to conclude the trial court's determination was manifestly
unsupported by reason. Therefore, we hold that the trial court did not err in awarding plaintiff
In light of the foregoing conclusions, we affirm the portion of the trial court's judgment
awarding attorney's fees, but we reverse and remand for a new equitable distribution trial. Affirmed in part; reversed and remanded.
Chief Judge MARTIN and Judge HUDSON concur.
At the time of their separation, plaintiff and defendant
also owned a residence located at 9 Hickory Ridge in Asheville
and mentioned above. According to the trial court order, the 9
Hickory Ridge residence was sold in November 2001, and defendant
was required to pay approximately $90,000.00 to satisfy the
deficiency between the sale price and the existing mortgage on
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