Volume 174 — North Carolina Court of Appeals Reports

<bold>1. Evidence — prior crimes or bad acts — assault inflicting</bold> <bold>serious injury</bold> <block_quote> The trial court erred in an assault case by admitting and publishing to the jury evidence of a prior conviction for assault inflicting serious injury, and the case is remanded for a new trial, because: (1) the bare fact of a defendant's prior conviction would rarely, if ever, be probative of any legitimate Rule 404(b) purpose and the facts, and it is the circumstances underlying<page_number>Page 106</page_number> such a conviction that hold probative value; and (2) the bare fact of the nontestifying defendant's prior conviction was admitted and published to the jury in the instant case after testimony had been elicited to establish the factual basis underlying the conviction.</block_quote> <bold>2. Assault — instruction — deadly weapon as a matter of law —</bold> <bold>knife</bold> <block_quote> The trial court did not err or commit plain error by instructing the jury that a knife is a deadly weapon as a matter of law for the charge of assault with a deadly weapon inflicting serious injury given the evidence of the knife's use and the injuries produced.</block_quote> <bold>3. Assault — deadly weapon inflicting serious injury — failure</bold> <bold>to instruct on lesser-included offenses</bold> <block_quote> The trial court erred by failing to instruct the jury on the lesser-included offenses of assault with a deadly weapon and assault inflicting serious injury for the charge of assault with a deadly weapon inflicting serious injury, because: (1) the jurors were not instructed that defendant's hands were deadly weapons per se, but rather they were asked to determine whether defendant's hands became deadly weapons as used in the alleged assault; (2) there was no way to ascertain what verdict the jury might have reached had it been given an alternative which did not include the use of a deadly weapon; and (3) assault with a deadly weapon does not require the victim to suffer serious injury, and the victim in the instant case did not seek medical treatment nor does the record contain any evidence of pain, blood loss, or time lost from work as a result of the injuries.</block_quote> <bold>4. Assault — deadly weapon inflicting serious injury — motion</bold> <bold>to dismiss — sufficiency of evidence</bold> <block_quote> The trial court did not err by denying defendant's motion to dismiss the charge of assault with a deadly weapon inflicting serious injury because the State's evidence, including documents from the domestic violence hearing that were admitted as substantive evidence, tended to show that defendant stabbed the victim five times with a knife causing wounds still visible some eight weeks after the assault, which adequately supported an inference that defendant assaulted the victim with a deadly weapon.</block_quote><page_number>Page 107</page_number> <bold>5. Kidnapping — second-degree — motion to dismiss — sufficiency</bold> <bold>of evidence — restraint</bold> <block_quote> The trial court did not err by denying defendant's motion to dismiss the second-degree kidnapping charges arising from the events of 18 November and 25 December 2002 even though defendant contends there was insufficient evidence of restraint, because: (1) hospital staff testified that defendant restrained the victim by refusing to allow her to seek medical treatment for a broken arm on or around 18 November 2002; and (2) an officer also testified that on 26 December 2002 the victim told him that defendant had been holding her against her will for days and would not let her contact her family.</block_quote> <bold>6. Constitutional Law — double jeopardy — assault</bold> <block_quote> The trial court violated defendant's right to be free of double jeopardy when it sentenced him in 03 CRS 79519 for both assault with a deadly weapon inflicting serious injury and assault inflicting serious injury, and in 03 CRS 71958 for both assault inflicting serious bodily injury and assault with a deadly weapon inflicting serious injury, because: (1) N.C.G.S. § <cross_reference>14-33</cross_reference>(c)(1) provides, just as N.C.G.S. § <cross_reference>14-32.4</cross_reference> does, that the section does not apply if the conduct is covered under some other provision of law providing greater punishment; and (2) although the evidence establishes assaults on two different days, it does not establish that two separate and distinct assaults occurred on each of the dates in question as opposed to multiple injuries arising from a single continuous transaction.</block_quote> <bold>7. Sentencing — aggravating factors — failure to submit to</bold> <bold>jury</bold> <block_quote> The trial court erred in an assault inflicting serious bodily injury, double assault inflicting serious injury, double assault with a deadly weapon, and double second-degree kidnapping case by imposing an aggravated sentence when no aggravating factor was admitted by defendant or found by the jury. Defendant would be entitled to a new sentencing hearing if defendant were not already awarded a new trial on other grounds.</block_quote> <bold>8. Constitutional Law — effective assistance of counsel —</bold> <bold>failure to show deficiency</bold> <block_quote> Defendant did not receive ineffective assistance of counsel in an assault inflicting serious bodily injury, double assault inflicting serious injury, double assault with a deadly weapon, and double second-degree kidnapping case by allegedly requesting the court<page_number>Page 108</page_number> to impose consecutive sentences on defendant, because: (1) the record indicates that defense counsel did not, in fact, request consecutive sentences; and (2) defendant failed to demonstrate how his counsel's performance was deficient.</block_quote>

<bold>1. Workers' Compensation — contact with plaintiff's doctor —</bold> <bold>limited</bold> <block_quote> A workers' compensation defendant is limited to obtaining information from a plaintiff's physician by one of the methods recognized in the rules or as provided by statutes. In this case, defendant improperly sent plaintiff's doctor a facsimile to obtain evidence for use in a hearing without plaintiff's consent, and the doctor's opinions rendered after that date were properly excluded.</block_quote> <bold>2. Workers' Compensation — testimony from treating physician —</bold> <bold>tainted by contact with defendant — excluded</bold> <block_quote> The Industrial Commission did not err in a workers' compensation proceeding by excluding opinions from plaintiff's treating physician after an ex parte contact from defendant. The advocate's language of the facsimile from defendant was designed to affect the answer and the Commission could reasonably find that the opinion was tainted after the fax.</block_quote> <bold>3. Constitutional Law — equal protection — restricting defense</bold> <bold>counsel's contact with treating physician</bold> <block_quote> There was no equal protection violation in a workers' compensation case in barring particular ex parte communications<page_number>Page 387</page_number> between defense counsel and treating physicians. Defense counsel and plaintiff's counsel are not similarly situated due to differing confidentiality obligations.</block_quote> <bold>4. Workers' Compensation — conflicting medical opinions —</bold> <bold>weight of evidence — conclusions inconsistent with findings</bold> <bold>and award</bold> <block_quote> The Industrial Commission was entitled in a workers' compensation case to give greater weight to one of several conflicting medical opinions concerning plaintiff's back injury, and the evidence was sufficient to support the Commission's finding that the plaintiff's leg condition was causally related to his compensable back injury. However, the Commission's conclusions were inconsistent with the findings and the ultimate award (apparently due to clerical error in modifying the Deputy Commissioner's award) and the case was remanded.</block_quote> <bold>5. Workers' Compensation — improper contact with doctor —</bold> <bold>shifting treatment</bold> <block_quote> When a doctor's views have been affected by an improper communication from a defendant, the Industrial Commission is entitled to shift the treatment of plaintiff to another physician.</block_quote>

<bold>1. Motor Vehicles — felonious fleeing to elude arrest —</bold> <bold>sufficiency of indictment</bold> <block_quote> The indictment was sufficient to charge defendant with felonious fleeing to elude arrest because: (1) the language of the indictment tracks N.C.G.S. § <cross_reference>20-141.5</cross_reference>, and alleges all of the elements defined by the statute and the elements necessary to elevate the offense from a misdemeanor to a felony; and (2) the United States Supreme Court has consistently declined to impose a requirement mandating states to prosecute only upon indictments which include all elements of an offense.</block_quote> <bold>2. Motor Vehicles — felonious fleeing to elude arrest — jury</bold> <bold>instructions — gross impairment</bold> <block_quote> The trial court did not commit plain error in a felonious fleeing to elude arrest case by failing to define the legal requirements for the necessary element of "gross impairment" in the jury instructions, because: (1) the language used in the statute and jury instructions accords with the ordinary meaning of the term "grossly impairment" and is understandable; and (2) the legislature did not intend for the words "gross impaired" to mean anything other than their common and ordinary meaning.</block_quote> <bold>3. Motor Vehicles — felonious fleeing to elude arrest — theory</bold> <bold>of guilt</bold> <block_quote> The trial court in a prosecution for felonious fleeing to elude arrest did not improperly instruct the jury on a theory of guilt different from that set forth in the indictment, because: (1) although the State alleged three aggravating factors in the indictment to support the charge, the plain language of the statute only requires proof of two or more of the factors to support a felony conviction; and (2) the State's evidence supported the charges of defendant's reckless driving and gross impairment of defendant's faculties set forth in the indictment.</block_quote> <bold>4. Motor Vehicles — felonious fleeing to elude arrest — motion</bold> <bold>to dismiss — sufficiency of evidence</bold> <block_quote> The trial court did not err in a felonious fleeing to elude arrest case by denying defendant's motions to dismiss at the close<page_number>Page 448</page_number> of the State's evidence and at the close of all evidence based on alleged insufficient evidence of speeding and gross impairment, because: (1) the lack of evidence or the State's abandonment of speeding in excess of fifteen miles per hour over the legal speed limit as an aggravating factor did not constitute error when the State was only required to prove two of the three factors listed in the indictment to elevate the crime from a misdemeanor to a felony; and (2) sufficient evidence was presented to support a conclusion by the jury that defendant was grossly impaired including that defendant had a strong odor of alcohol about him; defendant's eyes were very red, glazed, and glassy; defendant's speech was hard to understand; defendant repeatedly used profanity against the officers; defendant told an officer that he was going to die; defendant drove one-half mile with the lower portion of an officer's body hanging out of the window of defendant's vehicle; defendant had to be forcibly removed from his vehicle; and defendant testified he consumed six to seven beers at a local bar between 9:30 pm and 1:00 am, and admitted he was under the influence of alcohol when he pulled off from the traffic stop.</block_quote> <bold>5. Criminal Law — jury instruction — officer's duty — not</bold> <bold>improper comment on evidence</bold> <block_quote> The trial court did not improperly comment on the evidence during its instructions on assault with a deadly weapon on a government officer by its statement that "arresting a person for driving while impaired is a duty of a Greensboro police officer" when there was no evidence that defendant was arrested or charged with driving while impaired where the officer was investigating a possible driving while impaired offense at the time of the alleged assault, and the court's instruction related to whether the officer was performing a duty of his office at the time of the assault.</block_quote>

<bold>1. Workers' Compensation — claim by deputy — authority to</bold> <bold>extinguish county's lien — sovereign immunity</bold> <block_quote> There is specific statutory authority in the Workers' Compensation Act authorizing a deputy sheriff who received both workers' compensation insurance and a third-party settlement to seek a determination of Durham County's authority to<page_number>Page 508</page_number> file a lien against his settlement proceeds. The trial court did not err by not dismissing the matter under sovereign immunity.</block_quote> <bold>2. Workers' Compensation — subrogation — statute not</bold> <bold>unconstitutional</bold> <block_quote> The workers' compensation statute which provides subrogation for a third-party settlement, N.C.G.S. § <cross_reference>97-10.2</cross_reference>(j), is not unconstitutionally vague and does not violate due process. Neither does it violate the Exclusive Emoluments prohibition of the N.C. Constitution as to benefits received by deputy sheriffs or in the possibility of a double recovery.</block_quote> <bold>3. Workers' Compensation — third-party settlement — subrogation</bold> <bold>denied</bold> <block_quote> There was competent evidence supporting findings which themselves supported extinguishing Durham County's subrogation lien on a deputy's workers' compensation benefits, including the finding that petitioner's net recovery would otherwise be zero. The trial court did not abuse its discretion.</block_quote>

<bold>1. Appeal and Error — preservation of issues — neglected child</bold> <bold>— guardianship and visitation</bold> <block_quote> Issues concerning guardianship and visitation for a neglected child were preserved for appeal despite respondent's failure to object at the dispositional hearing.</block_quote> <bold>2. Child Abuse and Neglect — appointment of guardian — timing</bold> <block_quote> A guardian may be appointed by the trial court at any time during juvenile proceedings, including the dispositional hearing, when it finds such appointment to be in the juvenile's best interest, as here.</block_quote> <bold>3. Child Abuse and Neglect — appointment of guardian —</bold> <bold>findings</bold> <block_quote> The trial court was not required to make findings pursuant to N.C.G.S. § <cross_reference>7B-507</cross_reference>(b) when appointing a guardian for a neglected child where the guardianship was not the permanent plan and did not end DSS's duty to continue reunification efforts with the parent.</block_quote> <bold>4. Child Abuse and Neglect — guardianship — visitation</bold> <block_quote> Awarding visitation for a neglected child is a judicial function which may not be delegated to the custodian of the child, although the trial court may grant some good faith discretion to suspend visitation, subject to notice and review by the court. The trial court here erred by failing to include an appropriate visitation plan in its dispositional order for the neglected child.</block_quote> <bold>5. Child Abuse and Neglect — adjudication of neglect —</bold> <bold>circumstances from other county considered</bold> <block_quote> In adjudicating a child neglected, a district court is not limited to considering only those circumstances occurring within its district; otherwise, abusive and neglectful parents could avoid court intervention by simply moving from county to county. Sufficient evidence was presented here to support the conclusion of neglect</block_quote><page_number>Page 518</page_number> <bold>6. Child Abuse and Neglect — removal from custody — one of</bold> <bold>three grounds required — findings insufficient for</bold> <bold>dependency</bold> <block_quote> In order to remove a juvenile from the parents' custody the trial court must determine that the juvenile is abused, neglected, or dependent, and a finding of any of the three grounds will support the court's decision. Although this respondent appealed on somewhat different grounds, and there was sufficient evidence of neglect, the trial court erred by concluding that a child was dependent without findings of fact concerning respondent's ability to provide care, supervision or an alternative arrangement for care.</block_quote>

<bold>Homicide — second-degree murder — motion to dismiss —</bold> <bold>sufficiency of evidence</bold> <block_quote> The trial court did not err by granting defendants' motion to dismiss the charge of second-degree murder after the return of a verdict of guilty but before entry of judgment because, while the State's evidence raises a strong suspicion of defendants' guilt, it does not permit a reasonable inference that defendants were responsible for the death of the victim.</block_quote>

<bold>1. Workers' Compensation — partial incapacity — post-injury</bold> <bold>capacity to earn wages</bold> <block_quote> The Industrial Commission did not err in a workers' compensation case by considering plaintiff employee's post-injury capacity to earn wages in calculating benefits for partial incapacity under N.C.G.S. § <cross_reference>97-30</cross_reference> where the employee has not actually returned to work.</block_quote> <bold>2. Workers' Compensation — Form 26 agreement — alternative</bold> <bold>favorable remedies</bold> <block_quote> The Industrial Commission did not err in a workers' compensation case by concluding on the date the Form 26 was approved that N.C.G.S. § <cross_reference>97-30</cross_reference> provided a more favorable remedy than plaintiff received pursuant to N.C.G.S. § <cross_reference>97-31</cross_reference> under the Form 26 agreement based on the Commission's use of the federal minimum wage as plaintiff's earning capacity, because the determination was supported by relevant medical and record evidence.</block_quote><page_number>Page 562</page_number> <bold>3. Appeal and Error — preservation of issues — failure to</bold> <bold>assign error</bold> <block_quote> Although defendants contend the Industrial Commission erred in a workers' compensation case by failing to give defendants a credit for temporary total disability benefits paid past the date defendant reached maximum medical improvement, this argument is dismissed because: (1) defendants failed to assign error to the Commission's opinion and award on the basis that a credit was erroneously overlooked by the Commission as required by N.C.R. App. P. 10(a); and (2) none of the assignments of error direct the attention of the Court of Appeals to an alleged error regarding the credit, nor are there clear or specific record or transcript references included in the brief as required by N.C.R. App. P. 10(c)(1).</block_quote>

<bold>Zoning — cellular telephone tower — public utility station</bold> <block_quote> A cellular telephone company is a "public utility" and a cellular telephone tower is a "public utility station" under the Henderson County Zoning Ordinance. The Henderson County Zoning Board of Adjustment erred as a matter of law by holding otherwise, and the cellular telephone company was entitled to a zoning permit to build its tower in an R-20 zoning district.</block_quote>

<bold>1. Trespass — failure to show affirmative defense</bold> <bold>— negligence — easement by necessity — easement</bold> <bold>implied from prior use</bold> <block_quote> The trial court did not err by finding that plaintiff established a prima facie case of defendant's trespass for damage caused by the break in a stub-out on plaintiff's property from a water pipe serving defendant's property and that defendant failed to establish<page_number>Page 645</page_number> that it had any affirmative defense to the trespass, because: (1) there was sufficient evidence to support the trial court's finding that defendant owned the water that ran through the water pipe and subsequently flooded plaintiff's property thus causing damage to plaintiff's property; (2) although defendant argues on appeal that plaintiff negligently caused the release of water onto plaintiff's property and that defendant did not intentionally cause the water to enter onto plaintiff's property, at no point in the pleadings did defendant plead plaintiff's negligence as an affirmative defense nor did the trial court make any finding of fact regarding plaintiff's alleged negligence; (3) defendant failed to establish the affirmative defense of easement by necessity since the trial court's findings of fact properly supported the court's conclusions of law that it was not necessary that the pipe or stub-out be located on plaintiff's property in order for defendant to use and enjoy its property; and (4) defendant failed to establish the affirmative defense of easement implied from prior use when defendant did not meet the required test of permanency.</block_quote> <bold>2. Damages and Remedies — reasonableness —</bold> <bold>trespass</bold> <block_quote> The trial court did not err in a trespass case by awarding plaintiff $122, 918.80 for damage caused by the break in a water pipe, because plaintiffs presented sufficient evidence to allow the trial court to calculate the damages to a reasonable degree of certainty.</block_quote> <bold>3. Appeal and Error — cross-assignment of error</bold> <bold>— unnecessary to reach issue</bold> <block_quote> Although plaintiff has cross-assigned error to the trial court's findings of fact in a trespass case that the pipe was owned by plaintiff and that the pipe originally was installed on plaintiff's property prior to the severance of title, it is unnecessary to reach this cross-assignment of error because the Court of Appeals already affirmed the trial court's finding that plaintiff established a prima facie case of defendant's trespass and that defendant failed to establish any affirmative defense.</block_quote> <bold>4. Appeal and Error — cross-assignment of error</bold> <bold>— cross appeal</bold> <block_quote> Although plaintiff has cross-assigned error that there was insufficient evidence to support the trial court's reduction in plaintiff's damages in a trespass case, this cross-assignment of error is dismissed because it is not an alternative basis in law<page_number>Page 646</page_number> for supporting the judgment, but instead constitutes an attack on the judgment itself. The correct method for plaintiff to have raised this question on appeal was to have raised the issue on cross appeal.</block_quote>

<bold>1. Appeal and Error — preservation of issues</bold> <bold>— denial of motion in limine — no objection at</bold> <bold>trial</bold> <block_quote> An appeal was heard from the denial of a pretrial motion to suppress, even without an objection at trial, to prevent a manifest injustice to a defendant who may have relied on a statute presumed to be constitutional at the time of trial. N.C.G.S. § <cross_reference>8C-1</cross_reference>, Rule 103(a)(2).</block_quote> <bold>2. Juveniles — questioning — requested</bold> <bold>presence of aunt denied — not a parent, custodian, or</bold> <bold>guardian</bold> <block_quote> A juvenile defendant had no right to the presence of an aunt during questioning pursuant to N.C.G.S. § <cross_reference>7B-2101</cross_reference>, and his motion to suppress was correctly denied, because the aunt was not a custodian or guardian where defendant had never lived with the aunt, she neither had custody of him nor signed school papers on his behalf, and there was nothing to indicate that any governmental entity conferred legal authority on the aunt.</block_quote> <bold>3. Criminal Law — defendant shackled during trial</bold> <bold>— no abuse of discretion</bold> <block_quote> There was no abuse of discretion in ordering a defendant shackled during trial where the bailiff had expressed concern that defendant would run, the matter was addressed in defendant's presence but without the jury, the shackles were not to be seen by the jury, defendant would not have to walk or stand before the jury in shackles, and, although the jury was not instructed to ignore the shackles, there was no showing that the jurors were aware of or affected by the restraint.</block_quote> <bold>4. Homicide — first-degree murder — short-form</bold> <bold>indictment — validity</bold> <block_quote> An indictment which did not address all of the elements of first-degree murder was valid.</block_quote> <bold>5. Sentencing</bold> — <bold>aggravating factor</bold> <bold>—</bold> <bold><italic>Blakely</italic></bold> <bold>error</bold> <block_quote> The trial court erred when sentencing defendant in the aggravated range for armed robbery by finding an aggravating factor where the facts on which the factor was based were neither<page_number>Page 659</page_number> presented to the jury, proved beyond a reasonable doubt, nor stipulated by defendant.</block_quote> <bold>6. Constitutional Law — double jeopardy —</bold> <bold>felony murder and underlying felony</bold> <block_quote> The trial court violated double jeopardy by sentencing defendant for both first-degree kidnapping and attempted armed robbery where the jury had been instructed that both could be the underlying felony for felony murder. While there is an argument that judgment could be entered on neither underlying felony, prior Court of Appeal decisions require arrest of judgment on one of those felonies.</block_quote>

<bold>1. Homicide — attempted first-degree murder —</bold> <bold>motion to dismiss — sufficiency of evidence —</bold> <bold>specific intent to kill</bold> <block_quote> The trial court did not err by denying defendant's motion to dismiss the charge of attempted first-degree murder of a child, because the State presented sufficient evidence that defendant possessed the specific intent to kill the child including that: (1) defendant left a six-week-old baby with a towel knotted around her face in a collapsing shed some distance from the nearest house with temperatures in the 30-degree range; (2) during the next two days defendant did nothing to retrieve the child or assure her discovery by others; and (3) defendant acted in order to avoid paying child support. A jury could reasonably infer that defendant did not intend for anyone to find or hear the child and that he intended her to die from exposure or lack of food and hydration.</block_quote> <bold>2. Constitutional Law — right to remain silent —</bold> <bold>Miranda protections not applicable when questioned by neither an</bold> <bold>officer nor someone acting as an agent</bold> <block_quote> The trial court did not commit plain error in a first-degree kidnapping of a child, conspiracy to commit kidnapping, and attempted first-degree murder case by allowing the child's mother to testify regarding defendant's failure to respond to questions she asked him in letters concerning why he kidnapped their daughter, because: (1) the mother's testimony did not reference any silence of defendant in response to questioning by law enforcement, and Miranda's protections apply only when a defendant is subject to custodial interrogation; (2) the mother's questions were posed by her and the record contains no indication that she was acting at the behest of law enforcement; and<page_number>Page 746</page_number> (3) even if Miranda were applicable, defendant chose not to remain silent when he voluntarily wrote back to the mother.</block_quote> <bold>3. Constitutional Law — due process —</bold> <bold>consistency of theories — kidnapping — sex offender</bold> <bold>registration</bold> <block_quote> The trial court did not violate defendant's due process rights in a first-degree kidnapping of a child, conspiracy to commit kidnapping, and attempted first-degree murder case by allegedly presenting inconsistent theories at trial when it argued throughout trial that defendant was the child's father but then at sentencing told the court that there was no evidence presented that defendant was in fact the father when it requested that defendant be required to register as a sex offender based on the fact that he kidnapped the child. However, when the case is remanded for resentencing based upon another violation in this case, the trial court should revisit the recommendation regarding registration because there is no basis for requiring defendant to register as a sex offender when the only evidence in the record indicates that defendant is the father of the kidnapped child.</block_quote> <bold>4. Sentencing — aggravating factor — failure to</bold> <bold>submit to jury —</bold> <bold><italic>Blakely</italic></bold> <bold>error</bold> <block_quote> The trial court erred in a first-degree kidnapping of a child, conspiracy to commit kidnapping, and attempted first-degree murder case by sentencing defendant on an aggravating factor that it found without submitting the factor to the jury, and the case is remanded for resentencing in accordance with <italic>Blakely</italic>, <cross_reference>542 U.S. 296</cross_reference> (2004), and <italic>Allen</italic>, <cross_reference>359 N.C. 425</cross_reference> (2005). However, defendant's argument that the aggravating factor should have been alleged in the indictment has already been rejected by <italic>Allen.</italic></block_quote>

<bold>Appeal and Error — preservation of issues —</bold> <bold>appellate rules violations</bold> <block_quote> Defendant's appeal from a judgment ordering specific performance of a separation agreement and of an amendment to the agreement is dismissed because defendant failed to properly preserve for appellate review the issues presented on appeal when he violated several rules of appellate procedure.</block_quote><page_number>Page 779</page_number>

<bold>Divorce — equitable distribution — valuation</bold> <bold>of business — insufficient supporting findings</bold> <block_quote> An equitable distribution order was remanded for further findings on the value of defendant's business where the court fixed the disputed separation date and then the fair market value of the business, but did not make findings regarding the evidence used to reach that figure. The court used a figure proffered by plaintiffs expert, but the expert used her own figures, which were not part of the report submitted to plaintiff and the court, and her valuation did not reflect the separation date determined by the court.</block_quote>