IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA 25-276
Filed 4 February 2026
Cabarrus County, No. 21CVD002644-120
KAREN LAVETTE CUNNINGHAM, Plaintiff,
v.
GERALD WAYNE CUNNINGHAM, Defendant.
Appeal by plaintiff from order entered 15 August 2024 by Judge D. Brent
Cloninger in Cabarrus County District Court. Heard in the Court of Appeals 29
October 2025.
Hartsell & Williams, P.A., by Emily J. Arnold, for plaintiff-appellant.
Arnold & Smith, PLLC, by Corey A. Noland, for defendant-appellee.
DILLON, Chief Judge.
This matter involves an equitable distribution order. The issue on appeal is
whether the trial court erred in failing to classify post-separation passive
appreciation of a marital stock account as divisible property. For the reasoning
below, we vacate the trial court’s order and remand for reconsideration.
I. Background
In October 1992 Plaintiff Karen L. Cunningham (“Wife”) and Defendant
Gerald W. Cunningham (“Husband”) married. They separated in April 2021, after
which Wife commenced this action seeking, in part, equitable distribution. CUNNINGHAM V. CUNNINGHAM
Opinion of the Court
The matter was heard in March 2024. Relevant to Wife’s appeal, the trial court
heard testimony and received evidence regarding a certain Edward Jones stock
account which Husband opened during the marriage. Wife and Husband had
previously stipulated in a pretrial order that, as of the date of their April 2021
separation, the account value was $58,365.00 but failed to stipulate as to whether the
property was marital or separate. Husband argued this account should be classified
as his separate property. The trial court, though, classified this account as marital
property.
However, between the April 2021 separation and shortly before the March
2024 hearing, the value of the account essentially tripled in value. As Husband was
retaining the account, at the March 2024 hearing, Wife offered the January 2024
account statement showing the account had increased in value to $184,737.50. Wife
offered said evidence desiring the trial court to classify the post-separation gain as
divisible property to be equitably divided between the parties.
Ultimately, the trial court essentially classified the appreciation as divisible
property by finding that it was passive but did not value—and therefore did not
properly distribute—the account’s post-separation gain.
Later in its findings, the trial court determined the net marital estate was
valued at $1,443,566.89 and, in an attempt to achieve an equitable distribution, set
a distributive award of $368,684.36 in favor of Wife, which was to include gains and
losses that occurred post-separation and pre-distribution “[i]n order to account for
-2- CUNNINGHAM V. CUNNINGHAM
divisible gains and losses.” In its conclusions of law, the trial court ordered the
marital estate to be distributed according to its findings of fact. Wife appealed.
II. Analysis
Wife concedes in her brief that the account properly belongs solely to Husband.
On appeal, Wife argues the trial court erred in its handling of the account.
Concerning the account, the trial court found as follows:
[The account] is marital property bearing the names of both parties as a joint account. This account has a net value of $58,365.00 on the date of separation. Any appreciation since that date [of separation] is passive and is distributed to [Husband].
Wife agrees the trial court properly classified the value of the account as of the date
of separation as marital property. And we conclude the trial court did not err in
classifying the account value as of the date of separation as marital property, as there
was evidence the account was opened during the marriage as a joint account.
Wife’s sole issue on appeal is the trial court’s handling of the post-separation
change in the account. She essentially argues this increase (which she contends to
be approximately $126,000.00) should have been classified as divisible property and,
therefore, she was entitled to half of this increase.
We review equitable distribution orders to determine if “there was a clear
abuse of discretion.” White v. White, 312 N.C. 770, 777 (1985). Additionally, “[w]here,
as here, the trial court sits without a jury, the judge is required to ‘find the facts
specially and state separately its conclusions of law thereon and direct the entry of
-3- CUNNINGHAM V. CUNNINGHAM
appropriate judgment.’ ” Coble v. Coble, 300 N.C. 708, 712 (1980). Accordingly, we
review those findings to see whether they are supported by competent evidence; and
we review the conclusions de novo to determine whether they are supported by the
findings. In re S.R., 384 N.C. 516, 520 (2023). See also Coble, 300 N.C. at 712; Patton
v. Patton 318 N.C. 404, 406 (1986).
In an equitable distribution proceeding, the trial court is generally tasked with
“conduct[ing] a three-step process: (1) classify[ing] property as being marital,
divisible, or separate property; (2) calculat[ing] the net value of the marital and
divisible property; and (3) distribut[ing] equitably the marital and divisible property.”
Smith v. Smith, 387 N.C. 255, 258 (2025) (citation omitted); see also N.C.G.S. § 50-
20(a), (c) (2023).
Turning to the issue raised by Wife, we note “divisible property” is defined as:
[A]ll appreciation and diminution in value of martial 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 postseparation actions or activities of a spouse shall not be treated as divisible property.
Id. at (b)(4)(a) (emphasis added). We are to presume any increase or decrease in value
of marital property between separation and distribution is divisible “unless the trial
court finds that the change in value is attributable to the postseparation actions of
one spouse.” Wirth v. Wirth, 193 N.C. App. 657, 661 (2008) (emphasis in original).
In its order, the trial court found that “[a]ny [post-separation] appreciation . . .
-4- CUNNINGHAM V. CUNNINGHAM
is passive[.]” This increase certainly falls within the definition of divisible property,
subject to be split between the parties. However, it was the Wife’s burden at the
hearing to offer evidence concerning the amount of the increase which occurred
between the date of separation and the hearing. See Montague v. Montague, 238 N.C.
App. 61, 68–69 (2014). Accordingly, if Wife failed to meet this burden at the hearing,
the trial court was under no obligation to distribute the post-separation increase as
divisible property. See id. at 68.
At the hearing, Wife presented the January 2024 account statement, showing
the value of the account approximately six weeks before the hearing. This statement
showed the account had, indeed, increased by approximately $126,000.00 since the
date of separation. The trial court, however, made no findings concerning this
evidence.
A trial court is “required to ‘ resolve the material, disputed factual issues raised
by the evidence.’ ” Sunshine v. Sunshine, 294 N.C. App. 289, 308 (2024). See also
Coble, 300 N.C. at 712–13 (“The trial court must itself determine what pertinent facts
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IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA 25-276
Filed 4 February 2026
Cabarrus County, No. 21CVD002644-120
KAREN LAVETTE CUNNINGHAM, Plaintiff,
v.
GERALD WAYNE CUNNINGHAM, Defendant.
Appeal by plaintiff from order entered 15 August 2024 by Judge D. Brent
Cloninger in Cabarrus County District Court. Heard in the Court of Appeals 29
October 2025.
Hartsell & Williams, P.A., by Emily J. Arnold, for plaintiff-appellant.
Arnold & Smith, PLLC, by Corey A. Noland, for defendant-appellee.
DILLON, Chief Judge.
This matter involves an equitable distribution order. The issue on appeal is
whether the trial court erred in failing to classify post-separation passive
appreciation of a marital stock account as divisible property. For the reasoning
below, we vacate the trial court’s order and remand for reconsideration.
I. Background
In October 1992 Plaintiff Karen L. Cunningham (“Wife”) and Defendant
Gerald W. Cunningham (“Husband”) married. They separated in April 2021, after
which Wife commenced this action seeking, in part, equitable distribution. CUNNINGHAM V. CUNNINGHAM
Opinion of the Court
The matter was heard in March 2024. Relevant to Wife’s appeal, the trial court
heard testimony and received evidence regarding a certain Edward Jones stock
account which Husband opened during the marriage. Wife and Husband had
previously stipulated in a pretrial order that, as of the date of their April 2021
separation, the account value was $58,365.00 but failed to stipulate as to whether the
property was marital or separate. Husband argued this account should be classified
as his separate property. The trial court, though, classified this account as marital
property.
However, between the April 2021 separation and shortly before the March
2024 hearing, the value of the account essentially tripled in value. As Husband was
retaining the account, at the March 2024 hearing, Wife offered the January 2024
account statement showing the account had increased in value to $184,737.50. Wife
offered said evidence desiring the trial court to classify the post-separation gain as
divisible property to be equitably divided between the parties.
Ultimately, the trial court essentially classified the appreciation as divisible
property by finding that it was passive but did not value—and therefore did not
properly distribute—the account’s post-separation gain.
Later in its findings, the trial court determined the net marital estate was
valued at $1,443,566.89 and, in an attempt to achieve an equitable distribution, set
a distributive award of $368,684.36 in favor of Wife, which was to include gains and
losses that occurred post-separation and pre-distribution “[i]n order to account for
-2- CUNNINGHAM V. CUNNINGHAM
divisible gains and losses.” In its conclusions of law, the trial court ordered the
marital estate to be distributed according to its findings of fact. Wife appealed.
II. Analysis
Wife concedes in her brief that the account properly belongs solely to Husband.
On appeal, Wife argues the trial court erred in its handling of the account.
Concerning the account, the trial court found as follows:
[The account] is marital property bearing the names of both parties as a joint account. This account has a net value of $58,365.00 on the date of separation. Any appreciation since that date [of separation] is passive and is distributed to [Husband].
Wife agrees the trial court properly classified the value of the account as of the date
of separation as marital property. And we conclude the trial court did not err in
classifying the account value as of the date of separation as marital property, as there
was evidence the account was opened during the marriage as a joint account.
Wife’s sole issue on appeal is the trial court’s handling of the post-separation
change in the account. She essentially argues this increase (which she contends to
be approximately $126,000.00) should have been classified as divisible property and,
therefore, she was entitled to half of this increase.
We review equitable distribution orders to determine if “there was a clear
abuse of discretion.” White v. White, 312 N.C. 770, 777 (1985). Additionally, “[w]here,
as here, the trial court sits without a jury, the judge is required to ‘find the facts
specially and state separately its conclusions of law thereon and direct the entry of
-3- CUNNINGHAM V. CUNNINGHAM
appropriate judgment.’ ” Coble v. Coble, 300 N.C. 708, 712 (1980). Accordingly, we
review those findings to see whether they are supported by competent evidence; and
we review the conclusions de novo to determine whether they are supported by the
findings. In re S.R., 384 N.C. 516, 520 (2023). See also Coble, 300 N.C. at 712; Patton
v. Patton 318 N.C. 404, 406 (1986).
In an equitable distribution proceeding, the trial court is generally tasked with
“conduct[ing] a three-step process: (1) classify[ing] property as being marital,
divisible, or separate property; (2) calculat[ing] the net value of the marital and
divisible property; and (3) distribut[ing] equitably the marital and divisible property.”
Smith v. Smith, 387 N.C. 255, 258 (2025) (citation omitted); see also N.C.G.S. § 50-
20(a), (c) (2023).
Turning to the issue raised by Wife, we note “divisible property” is defined as:
[A]ll appreciation and diminution in value of martial 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 postseparation actions or activities of a spouse shall not be treated as divisible property.
Id. at (b)(4)(a) (emphasis added). We are to presume any increase or decrease in value
of marital property between separation and distribution is divisible “unless the trial
court finds that the change in value is attributable to the postseparation actions of
one spouse.” Wirth v. Wirth, 193 N.C. App. 657, 661 (2008) (emphasis in original).
In its order, the trial court found that “[a]ny [post-separation] appreciation . . .
-4- CUNNINGHAM V. CUNNINGHAM
is passive[.]” This increase certainly falls within the definition of divisible property,
subject to be split between the parties. However, it was the Wife’s burden at the
hearing to offer evidence concerning the amount of the increase which occurred
between the date of separation and the hearing. See Montague v. Montague, 238 N.C.
App. 61, 68–69 (2014). Accordingly, if Wife failed to meet this burden at the hearing,
the trial court was under no obligation to distribute the post-separation increase as
divisible property. See id. at 68.
At the hearing, Wife presented the January 2024 account statement, showing
the value of the account approximately six weeks before the hearing. This statement
showed the account had, indeed, increased by approximately $126,000.00 since the
date of separation. The trial court, however, made no findings concerning this
evidence.
A trial court is “required to ‘ resolve the material, disputed factual issues raised
by the evidence.’ ” Sunshine v. Sunshine, 294 N.C. App. 289, 308 (2024). See also
Coble, 300 N.C. at 712–13 (“The trial court must itself determine what pertinent facts
are actually established by the evidence before it, and it is not for an appellate court
to determine de novo the weight and credibility to be given to evidence disclosed by
the record on appeal.”).
Our Supreme Court has held that evidence of value from a date other than the
relevant date may still be admissible if the “other” date is not too remote in time.
Northgate Shopping Ctr., Inc. v. State Highway Comm’n, 265 N.C. 209, 211–12
-5- CUNNINGHAM V. CUNNINGHAM
(1965). And, we have held that evidence of value twenty-seven days prior to the date
of separation was competent to show the value as of the date of separation. Lund v.
Lund, 244 N.C. App. 279, 285 (2015).
We conclude the January 2024 statement offered by Wife was not too remote
in time to render it incompetent to prove the value of the account as of the date of
hearing. Therefore, we hold the trial court erred by failing to make any finding
regarding Wife’s evidence concerning the post-separation value of the account. Thus,
we vacate the equitable distribution order and remand the matter to the trial court
to consider Wife’s evidence concerning the post-separation value of the account.
On remand, the trial court, in its discretion, may consider further evidence on
the matter. Of course, the trial court as the factfinder can assign what weight it
deems appropriate to Wife’s evidence. If, on remand, the trial court does not deem
Wife’s otherwise competent evidence as credible, the trial court is not under any
obligation to classify the post-separation increase. However, if the trial court finds
the evidence credible, the trial court must classify the post-separation increase, value
it, and distribute it.
VACATED AND REMANDED.
Judges HAMPSON and STADING concur.
-6-