"The classification of property in an equitable distribution proceeding requires the application of legal principles, and we therefore review de novo the classification of property as marital, divisible, or separate." Green v. Green , 255 N.C. App. 719, 724, 806 S.E.2d 45, 50 (2017) (quotation marks omitted). This case is named " Hill v. Sanderson , 244 N.C. App. 219, 781 S.E.2d 29 (2015)" in Westlaw and the South Eastern Reporter, but " Hill v. Hill , 244 N.C. App. 219, 781 S.E.2d 29 (2015)" in the North Carolina Court of Appeals Reports.
There is language in paragraph 9 that suggests that the trial court did not make an absolute distribution of the home. However, we conclude that the language speaks to the method in which the title would ultimately be transferred over, as in Green v. Green, 255 N.C. App. 719, 806 S.E.2d 45 (2017). In Green, Husband argued that because the trial court did not require Wife to remove Husband's name from the mortgage, it was not really distributed.
Defendant acknowledges Diehl and Zurosky , but contends the trial court did not make the necessary findings in this case. Defendant relies on Green v. Green , ––– N.C. App. ––––, 806 S.E.2d 45 (2017), in which this Court distinguished Diehl and Zurosky , explaining that "the trial court did not make findings of fact as to whether [the d]efendant's professed actual income at the time of the order was reliable or unreliable before basing its decision regarding [the d]efendant's ability to pay alimony on an average of prior years’ income." ––– N.C. App. at ––––, 806 S.E.2d at 55.
Next, defendant contests the trial court's order requiring him to refinance the mortgage for the marital home in his name without findings of fact to justify such an order. In support of his contention defendant cites Green v. Green, 255 N.C.App. 719 (2017), where this Court affirmed the trial court's order that distributed the marital home and mortgage to the defendant and denied plaintiff's arguments that the court should have also ordered defendant to refinance the mortgage out of her name. However, defendant is improperly interpreting Green.
State o/b/o Midgett v. Midgett , 199 N.C. App. 202, 208, 680 S.E.2d 876, 880 (2009) ; see alsoDiehl v. Diehl , 177 N.C. App. 642, 650, 630 S.E.2d 25, 30 (2006). If the district court employs past years’ income to decide the award, the court must make findings of fact as to why the court needed to do so. Green v. Green , 255 N.C. App. 719, 735, 806 S.E.2d 45, 56 (2017) (citations omitted) (reversing and remanding for findings of fact regarding defendant's actual income and noting that the trial court may consider prior years’ income only if it finds as fact that defendant's actual income is "not credible, or is otherwise suspect."). ¶ 13 As noted above, the district court found that defendant's annual income was $205,156.00 and $272,266.00 for tax years 2016 and 2017, respectively.
"The classification of property in an equitable distribution proceeding requires the application of legal principles, and we therefore review de novo the classification of property as marital, divisible, or separate." Green v. Green, 255 N.C.App. 719, 724, 806 S.E.2d 45, 50 (2017) (citation and internal quotation marks omitted), disc. review denied and review dismissed, 371 N.C. 485, 818 S.E.2d 273 (2018)
¶ 12 The" 'classification of property in an equitable distribution proceeding requires the application of legal principles,'" therefore, we review de novo the trial court's "classification of property as marital, divisible, or separate." Green v. Green, 255 N.C.App. 719, 724, 806 S.E.2d 45, 50 (2017) (citation omitted), disc. review denied, 371 N.C. 485, 818 S.E.2d 273 (2018). As the trial judge in equitable distribution proceedings sits without a jury, a court's characterization of property as "marital, divisible, or separate will not be disturbed on appeal if there is competent evidence to support the determination." Brackney, 199 N.C.App. at 381, 682 S.E.2d at 405 (citation and internal quotation marks omitted).
¶ 11 While findings of fact are conclusive on appeal when supported by competent evidence, "[t]he classification of property in an equitable distribution proceeding requires the application of legal principles," and this Court "therefore review[s] de novo the classification of property as marital, divisible, or separate." Green v. Green, 255 N.C.App. 719, 724, 806 S.E.2d 45, 50 (2017) (citations omitted).
Although our statutes do not define "deferred compensation," in the context of the equitable distribution statutes, this Court has interpreted the term to include "only items of the same kind as those words which come before it in N.C. Gen. Stat. § 50-20(b)(1)"—namely pension and retirement benefits. Green v. Green , 255 N.C. App. 719, 725, 806 S.E.2d 45, 50 (2017). In addition, this Court has also applied § 50-20.1 in the context of stock options.
At trial, Husband testified that he received $4,700.00 in tax refunds, and offered his 2017 federal and state tax returns and bank statements as documentary verification of the refunds. In calculating a party's "actual income, from all sources, at the time of the order," Green v. Green, 255 N.C. App. 719, 735, 806 S.E.2d 45, 56 (2017), disc. review denied, 371 N.C. 485, 818 S.E.2d 273 (2018), a trial court commits reversible error when it includes in its calculation of a party's income tax refunds "where there is no evidence that such refunds are regular income[,]" Williamson v. Williamson, 217 N.C. App. 388, 390-91, 719 S.E.2d 625, 627 (2011). Thus, we conclude that the trial court erred in considering Husband's federal and state tax refunds as part of Husband's gross income, because there was no evidence presented that such refunds are regular income. ¶ 31 On remand, if the trial court finds that an award of alimony would be equitable, it shall recalculate Husband's income, with findings to support each step of the computation.