Appeal by defendant from judgment entered 22 April 2004 by
Judge Marvin P. Pope, Jr. in Buncombe County District Court. Heard
in the Court of Appeals 20 September 2005.
Cecilia Johnson for plaintiff-appellee.
Mary Elizabeth Arrowood for defendant-appellant.
Defendant Bobby Carol Warren appeals from the trial court's
equitable distribution judgment providing for an equal division of
marital property between defendant and plaintiff Nancy Warren. On
appeal, Mr. Warren primarily argues that the trial court erred by
failing to make findings of fact (1) as to why there should not be
an in-kind distribution of certain real property, and (2) regarding
evidence he offered in support of his request for an unequal
distribution. We agree and remand for further findings of fact in
accordance with this opinion.
The parties were married in 1984, separated in 2001, and
subsequently divorced. Three children were born during the
marriage. At the time of the order currently on appeal, the oldest
child, born in 1984, was emancipated, but the couple's two minor
children, born in 1986 and 1991, resided with Mr. Warren.
In September 2001, Ms. Warren filed a complaint in Buncombe
County District Court seeking child custody and support, equitable
distribution, post-separation support and alimony, and attorneys'
fees. Mr. Warren filed an answer and counterclaim in November
2001, denying the relevant allegations and seeking, among other
things, a custody determination and an unequal division of the
couple's marital estate in his favor.
In its order entered 22 April 2004, the trial court found that
the couple had $151,980.21 in marital assets, including: a 16.86
acre parcel of real property valued at $64,000.00; four vehicles,
collectively valued at $15,040.00; bank accounts totaling
$27,499.00; retirement accounts totaling $40,591.21; and $4,850.00
of miscellaneous personal property. The trial court also found
that the couple's marital debt totaled $26,588.96.
To Mr. Warren, the trial court awarded the entire 16.86 acre
tract, three of the vehicles, two of the bank accounts, one
retirement account, and approximately half of the couple's personal
property. The court valued these assets at $90,854.00. The court
also allocated $21,720.96 of the marital debt to Mr. Warren.
Accordingly, Mr. Warren was awarded a net share of the couple's
marital estate amounting to $69,133.04. The remaining maritalproperty, totaling $33,356.00, was awarded to Ms. Warren. The
trial court allocated Ms. Warren $4,868.00 of the marital debt,
resulting in her receiving a net share of the marital estate of
Because the trial court found that an equal division of the
property between Mr. Warren and Ms. Warren would be equitable, the
court directed Mr. Warren to pay Ms. Warren "one-half of the
economic difference between the marital property received by [Mr.
Warren] and [Ms. Warren]" equal to $20,322.52. To effectuate
payment, the court ordered Mr. Warren to obtain a commercial loan
within three months and pay Ms. Warren in one lump sum or,
alternatively, to pay Ms. Warren $10,000.00 within three months and
then make monthly payments on the balance of $215.00 per month for
five years or until the balance was paid in full. Mr. Warren has
timely appealed to this Court.
 Before addressing the issues raised by Mr. Warren's
appeal, we first acknowledge that Ms. Warren has included a motion
to dismiss this appeal in the opening pages of her appellee brief.
Such motions may not be raised in a brief, but rather must be made
in accordance with N.C.R. App. P. 37. Smithers v. Tru-Pak Moving
, 121 N.C. App. 542, 545, 468 S.E.2d 410, 412 ("A motion
to dismiss an appeal must be filed in accord with Appellate Rule
37, not raised for the first time in the brief . . . ."), disc.
, 343 N.C. 514, 472 S.E.2d 20 (1996). This motion is
not, therefore, properly before this Court and we decline toaddress it. In any event, we note that the motion is based in part
on Mr. Warren's failure to file the exhibits of both parties,
despite the stipulation in the record on appeal that he would do
so. The exhibits, however, have proven immaterial to the
resolution of this appeal.
 On appeal, Mr. Warren contends that the trial court erred
by concluding that the entire 16.86 acre parcel was marital
property. Mr. Warren had initially inherited an interest in the
parcel after the death of his father, who left a half-interest in
the land to each of his sons. Ms. Warren's name was not included
on the deed that resulted from this inheritance. Subsequently, Mr.
Warren and his brother deeded the entire parcel to both Mr. Warren
and Ms. Warren.
When previously separate real property becomes titled by the
entireties, the law presumes the transfer to be a gift to the
marital estate. McLean v. McLean
, 323 N.C. 543, 551-52, 374 S.E.2d
376, 381-82 (1988). See also
3 Suzanne Reynolds, Lee's North
Carolina Family Law
§ 12.33, at 12-100 (5th ed. 2002) ("The
[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 theentireties.").
(See footnote 1)
This 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
, 323 N.C. at 551-52, 374 S.E.2d at 381-82.
It is uncontested that (1) after Mr. Warren inherited the
parcel with his brother, Mr. Warren's interest was his separate
property, and (2) when the entire parcel was conveyed to Mr. Warren
and Ms. Warren, title vested in both as tenants by the entirety.
Further, the deed conveying the parcel to both Mr. Warren and Ms.
Warren does not indicate any intention that the parcel not become
marital property. Thus, the burden was on Mr. Warren to provide
clear, cogent, and convincing evidence that he did not intend to
make his interest in the parcel a gift to the marital estate.
In support of his argument, Mr. Warren points to Ms. Warren's
testimony, in which she stated that she did not believe Mr. Warren
had ever given her an interest in the land. It is, however, the
donor's, not the donee's, intent that is relevant. Id.
Warren's understanding of the transaction is, therefore,
Mr. Warren also points to his own testimony that he did not
instruct the attorney performing the conveyance to transfer the
property by the entireties and to his offer of proof that he "had
no intent to make a gift to [plaintiff] of my inheritancewhatsoever."
(See footnote 2)
Our courts have held, however, that the donor's
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's
testimony alone "certainly" did not rise to the level of clear,
cogent, and convincing evidence). See also
3 Reynolds, supra
12.33, at 12-102 ("Often the only evidence of a lack of donative
intent is the donor's 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."). 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.
 Mr. Warren argues alternatively that, even assuming the
16.86 acre parcel was marital property, the trial court erred by
failing either (1) to order an in-kind distribution of the property
or (2) to make findings of fact justifying a distributive award
rather than an in-kind distribution. In North Carolina, "it shall
be presumed in every action that an in-kind distribution of marital
or divisible property is equitable." N.C. Gen. Stat. § 50-20(e)
(2003). This presumption "may be rebutted by the greater weight of
the evidence, or by evidence that the property is a closely heldbusiness entity or is otherwise not susceptible of division in-
This Court has recently held that "in equitable
distribution cases, if the trial court determines that the
presumption of an in-kind distribution has been rebutted, it must
make findings of fact and conclusions of law in support of that
determination." Urciolo v. Urciolo
, 166 N.C. App. 504, 507, 601
S.E.2d 905, 908 (2004).
In this case, although the trial court did not order an in-
kind distribution of the parcel, it made no findings of fact or
conclusions of law regarding the presumption and whether it was
rebutted. Plaintiff responds that the record contains evidence
sufficient to support a finding that the presumption of an in-kind
distribution had been rebutted. "It is not enough that there may
be evidence in the record sufficient to support findings which
could have been made
. The trial court must itself determine what
pertinent facts are actually established by the evidence before it
. . . ." Coble v. Coble
, 300 N.C. 708, 712, 268 S.E.2d 185, 189
(1980). We must, therefore, "reverse the trial court on this
assignment of error, and remand this matter for additional findings
of fact on whether the presumption of an in-kind distribution has
been rebutted . . . ." Urciolo
, 166 N.C. App. at 507, 601 S.E.2d
 Mr. Warren next contends that the trial court erred in
finding that a 1991 Ford Tempo was the property of the oldest
child. The trial court made the following finding of fact withrespect to the Ford Tempo: "That the 1991 Ford Tempo automobile is
the separate property of the oldest child and is not subject to
equitable distribution between [Ms. Warren] and [Mr. Warren]." In
the decretal portion of the order, the court provided, based on
this finding, that "the 1991 Ford Tempo automobile shall be the
sole property of the oldest child." Although Mr. Warren agrees
with the trial court's finding that the Tempo was separate
property, he objects to the trial court's award of the car to the
oldest child. Ms. Warren agrees that this portion of the order is
Trial courts may distribute only marital and divisible
property. N.C. Gen. Stat. § 50-20(a) ("Upon application of a
party, the court shall determine what is the marital property and
divisible property and shall provide for an equitable distribution
of the marital property and divisible property between the parties
in accordance with the provisions of this section."). A trial
court has no authority to distribute separate property: "Following
classification, property classified as marital is distributed by
the trial court, while separate property remains unaffected."
, 323 N.C. at 545, 374 S.E.2d at 378. Once the trial court
found that the Tempo was separate property, that property was not
subject to distribution, and the trial court erred in specifying
that the car was the property of the couple's oldest child. We,
therefore, reverse that portion of the trial court's order.
 Mr. Warren also disputes the trial court's valuation of
two marital assets that the court awarded to him: a Ford Ranger
pickup truck and an IRA. In equitable distribution proceedings,
marital property must be valued "as of the
date of the separation
of the parties." N.C. Gen. Stat. § 50-21(b) (2003).
At trial, Mr. Warren offered evidence that the pickup truck
was only worth $2,000.00 on the date of separation. In contrast,
Ms. Warren offered evidence that the value of the pickup truck on
the date of separation was $4,860.00. The trial court ultimately
found that the pickup truck had a value on the date of separation
of $4,860.00. Despite Mr. Warren's arguments to the contrary, this
finding is supported by competent evidence and we may not disturb
it on appeal. Urciolo
, 166 N.C. App. at 506, 601 S.E.2d at 907.
 The trial court valued Mr. Warren's IRA at $12,821.00.
Although Mr. Warren concedes that $12,821.00 accurately states the
value of the IRA as of the date of separation, he nonetheless
argues that he was entitled to have the IRA valued at $6,000.00
because he was forced to cash in the IRA early to pay bills when
Ms. Warren withdrew $26,000.00 of marital funds after the date of
separation to purchase and furnish a mobile home for herself. Mr.
Warren argues that, as a result of the taxes and penalties he
incurred, he netted only $6,000.00 from the IRA. Since the trial
court was required by statute to find the value of the IRA as of
the date of separation, the court did not err by doing so. Mr.
Warren's evidence is more properly considered as a distributional
factor under N.C. Gen. Stat. § 50-20(c).
 Mr. Warren next argues that the trial court erred by
making insufficient findings of fact regarding (1) post-separation
payments he made with respect to marital debt and (2) increased
payments resulting from financial misconduct by Ms. Warren. On the
date of separation, the parties had an equity line of credit with
a balance of $17,738.72. Mr. Warren argues that he paid $4,320.27
in finance charges or interest on this line of credit with post-
separation funds. Further, after separation, Ms. Warren borrowed
an additional amount of $7,500.00 on this line of credit.
Although, pursuant to a court order, Ms. Warren repaid the
$7,500.00 approximately four months later, it is undisputed that
Ms. Warren's actions resulted in Mr. Warren being required to make
increased monthly payments on the line of credit over the four-
Mr. Warren argues that his post-separation payments on the
line of credit constituted "divisible property" under N.C. Gen.
Stat. § 50-20(b)(4)(d). Although this Court rejected such an
argument in Hay v. Hay
, 148 N.C. App. 649, 655, 559 S.E.2d 268, 273
(2002), in connection with post-separation mortgage payments, that
opinion predated a 2002 amendment to N.C. Gen. Stat. § 50-
20(b)(4)(d). At the time of Hay
, the statute defined divisible
property as including only "'[i]ncreases in marital debt and
financing charges and interest related to marital debt.'" Hay
N.C. App. at 655, 559 S.E.2d at 273 (quoting N.C. Gen. Stat. § 50-
20(b)(4)(d) (1999)). The Court reasoned that the subsection didnot apply because "[d]efendant's mortgage payments have not
increased the marital debt, financing charges, or interest on the
marital debt." Id.
The statute, as amended in 2002, 2002 N.C. Sess. Laws ch. 159,
sec. 33.5, now provides that divisible property includes
"[i]ncreases and decreases
in marital debt and financing charges
and interest related to marital debt." N.C. Gen. Stat. § 50-
20(b)(4)(d) (emphasis added). As a leading commentator has
With the 2002 amendment to the statute,
the subsection authorizes the court to
classify postseparation payments of marital
debt as divisible property. Whether these
payments reduce the principal of the debt, the
finance charges related to the debt, or
interest related to the debt, the court should
consider the postseparation payments as
divisible property. If the postseparation
reduction of the marital debt increases the
net value of the marital property, the court
may classify the increase as divisible
3 Reynolds, supra, § 12.52, at 5 (Cum. Supp. 2004) (also noting
that the amendment appeared to respond to Hay). This amendment
became effective 11 October 2002. 2002 N.C. Sess. Laws ch. 159,
Since Mr. Warren's payments decreased financing charges and
interest related to marital debt, those payments _ to the extent
made after 11 October 2002 _ constituted divisible property. "A
trial court must value all marital and divisible property . . . in
order to reasonably determine whether the distribution ordered is
equitable." Cunningham v. Cunningham, 171 N.C. App. 550, 555-56,615 S.E.2d 675, 680 (2005). On remand, the trial court must,
therefore, make findings of fact regarding the post-separation debt
payments made after 11 October 2002.
 The analysis differs with respect to the increased amount
paid as a result of Ms. Warren's $7,500.00 post-separation draw on
the line of credit. This draw and the resulting finance charges
and interest were not marital debt (or divisible property) and,
therefore, the trial court had no authority to distribute that
debt. Fox v. Fox, 114 N.C. App. 125, 134, 441 S.E.2d 613, 619
(1994). The trial court should take into account on remand Mr.
Warren's payment of finance charges incurred for Ms. Warren's
 Finally, defendant argues that the trial court erred by
not making findings of fact regarding the factors set forth in N.C.
Gen. Stat. § 50-20(c). A trial court "must make findings of fact
under section 50-20[c] regarding any of the factors for which
evidence is introduced at trial." Friend-Novorska v. Novorska
N.C. App. 387, 395, 545 S.E.2d 788, 794, aff'd per curiam
, 354 N.C.
564, 556 S.E.2d 294 (2001). See also Armstrong v. Armstrong
N.C. 396, 404, 368 S.E.2d 595, 599 (1988) ("When, however, evidence
is presented from which a reasonable finder of fact could determine
that an equal division would be inequitable, the trial court is
required to consider the factors set forth in N.C.G.S. § 50-20(c)
. . . ."). This requirement exists regardless whether the trialcourt ultimately decides to divide the property equally or
at 403, 368 S.E.2d at 599.
In requesting an unequal distribution, Mr. Warren offered
evidence relating to various factors under N.C. Gen. Stat. § 50-
20(c), including, for example, § 50-20(c)(9) and (11a), as well as
evidence that Mr. Warren contends should be considered under the
catch-all factor, § 50-20(c)(12) ("Any other factor which the court
finds to be just and proper."). Because the trial court made no
findings regarding those factors and instead concluded only that
"an equal distribution of the property . . . is equitable," we must
remand for further findings of fact on this issue as well.
Since we have required further findings of fact, we do not
reach Mr. Warren's argument that the court erred by failing to
order an unequal distribution. We have also reviewed Mr. Warren's
remaining assignments of error and determined that none of them
resulted in prejudicial error.
In sum, we affirm the trial court's categorization of the
16.86 acre parcel as marital property and its valuation of Mr.
Warren's Ford Ranger pickup truck and IRA. We remand, however, for
further findings of fact regarding whether there should be an in-
kind distribution of the 16.86 acre parcel, Mr. Warren's post-
separation debt payments, and the N.C. Gen. Stat. § 50-20(c)
factors. We reverse the trial court's award of the 1991 Ford Tempo
to the couple's eldest child.
Affirmed in part, reversed in part, and remanded. Chief Judge MARTIN and Judge BRYANT concur.