NO. COA NORTH CAROLINA COURT OF APPEALS. Filed: 21 August Appeal by Defendant and cross-appeal by Plaintiff from

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1 An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of A p p e l l a t e P r o c e d u r e. NO. COA NORTH CAROLINA COURT OF APPEALS Filed: 21 August 2012 DELORES KAY GARNER BINDER, Plaintiff, v. Guilford County No. 04 CVD 4810 RUDOLPH LUDWIG BINDER, JR., Defendant. Appeal by Defendant and cross-appeal by Plaintiff from Amended Judgment and Order of Equitable Distribution filed 24 March 2011 by Judge Wendy Enochs in Guilford County District Court. Heard in the Court of Appeals 8 May Schiller & Schiller, PLLC, by Kathryn H. Schiller and David G. Schiller, for Plaintiff. Vandeventer Black LLP, by Kevin A. Rust, and Benson, Brown & Faucher, PLLC, by Robert A. Benson and Drew Brown, and William L. Daisy, for Defendant. STEPHENS, Judge. This appeal arises from disputes about the classification, valuation, and distribution of various items of marital property

2 -2- in an equitable distribution proceeding. On 11 March 2004, Plaintiff Delores Kay Garner Binder filed a complaint against Defendant Rudolph Ludwig Binder, Jr., for divorce from bed and board, rescission for breach of contract, postseparation support, alimony, and equitable distribution, and motions for interim allocation, family financial mediation, temporary restraining order, and attorney fees. On 29 September 2004, Plaintiff filed an amended complaint including substantially similar claims and motions. The parties were divorced by judgment entered on 24 February Following hearings in March and September 2010, 1 the trial court entered a judgment and order of equitable distribution on 20 December Plaintiff subsequently moved for correction of clerical mistakes in that judgment and order, and the court entered an order granting Plaintiff s motion along with an amended judgment and order of equitable distribution on 24 March 2011, retaining jurisdiction of the matter in order to enforce compliance with the terms of the order. The trial court certified the matter for immediate 1 Nothing in the record explains the six-year delay between the filing of the complaint and the hearings.

3 -3- appeal pursuant to Rule 54(b) of the North Carolina Rules of Civil Procedure on 20 April The parties were married on 8 October 1983, lived in North Carolina throughout their marriage, and separated on 24 November Defendant holds an ownership interest in a number of commercial real estate properties which he acquired during the marriage. The parties stipulated that these ownership interests are marital property and thus subject to equitable distribution. The issues raised in this appeal concern four of those properties: Hicone Properties, LLC ( Hicone ); Brookhollow Plaza Shopping Center ( Brookhollow Plaza ); Brookhollow Associates, LLC ( Food Lion Plaza ); and Piney Grove Associates, LLC ( Piney Grove ). Further facts regarding these properties and their classification by the trial court will be discussed herein as relevant to resolution of the parties issues on appeal. In its amended judgment and order of equitable distribution, the court determined that an equal distribution 2 The amended order entered by the trial court is a final equitable distribution judgment, but did not resolve Plaintiff s claims for, inter alia, alimony and breach of contract. As such, this appeal is interlocutory, and would not be immediately appealable absent the trial court s proper Rule 54(b) certification. Embler v. Embler, 143 N.C. App. 162, , 545 S.E.2d 259, 261 (2001). When the trial court certifies its order for immediate appeal under Rule 54(b), appellate review is mandatory. Sharpe v. Worland, 351 N.C. 159, 162, 522 S.E.2d 577, 579 (1999) (citation omitted).

4 -4- would be equitable and ordered that Defendant pay Plaintiff a distributive award of $3,248, From the 24 March 2011 equitable distribution order, Defendant appeals and Plaintiff cross-appeals. Discussion Defendant brings forward three arguments in his appeal: that the trial court erred in failing (1) to consider the tax implications of Defendant s liquidation of assets to pay the distributive award; (2) to find sufficient liquid assets from which Defendant could pay the distributive award; and (3) to apply the presumption of an in-kind distribution. As discussed below, we reject each of Defendant s arguments. Plaintiff brings forward four arguments on cross-appeal: that the trial court erred in (1) classifying, valuing, and distributing as separate property the profits and cash Defendant withdrew from marital assets during the postseparation period; (2) finding that the postseparation increase in value of marital business assets was due to Defendant s continued management role and thus not divisible; (3) classifying, valuing, and distributing as divisible property the diminution of value of Hicone; and (4) deducting from the total equitable distribution award the amount of the interim award where the interim award

5 -5- was paid from a marital asset classified as divisible property. Because they are closely related, Plaintiff s arguments (1) and (3) are discussed together below. We agree in part with Plaintiff, and for the reasons discussed below, vacate certain of the trial court s conclusions of law and remand for further proceedings. Standard of Review On appeal, when reviewing an equitable distribution order, this Court will uphold the trial court s written findings of fact as long as they are supported by competent evidence. Mugno v. Mugno, 205 N.C. App. 273, 276, 695 S.E.2d 495, 498 (2010) (citations and quotation marks omitted). Further, it is well established that a trial court s conclusions of law must be supported by its findings of fact. Squires v. Squires, 178 N.C. App. 251, 256, 631 S.E.2d 156, 159 (2006) (citation, quotation marks, and brackets omitted). Specifically, [b]ecause the classification of property in an equitable distribution proceeding requires the application of legal principles, this determination is most appropriately considered a conclusion of law. The conclusion that property is either marital, separate[,] or non-marital must be supported by written findings of fact. Hunt v. Hunt, 112 N.C. App. 722, 729, 436

6 -6- S.E.2d 856, 861 (1993) (citations omitted) (emphasis added). [T]he trial court s conclusions of law are reviewed de novo. Mugno, 205 N.C. App. at 276, 695 S.E.2d at 498 (citations and quotation marks omitted). However, [t]he division of marital property is a matter within the sound discretion of the trial court, and the trial court s ruling will be disturbed only if it is so arbitrary that it could not have been the result of a reasoned decision. Nevertheless, under N.C. Gen. Stat (c) (2003), the trial court must consider certain factors and must make findings as to each factor for which evidence was presented. Robertson v. Robertson, 167 N.C. App. 567, 570, 605 S.E.2d 667, 669 (2004) (citations, quotation marks, ellipsis, and brackets omitted) (emphasis added). Defendant s Appeal I. Findings of Fact about Tax Consequences of Award Defendant first argues that the trial court erred in failing to consider the tax implications of the liquidation of assets required to pay the distributive award. We disagree. Defendant contends that this alleged failure violated subsection c of N.C. Gen. Stat , which provides: There shall be an equal division by using net value of marital property and net value of divisible property unless the court

7 -7- determines that an equal division is not equitable. If the court determines that an equal division is not equitable, the court shall divide the marital property and divisible property equitably. The court shall consider all of the following factors under this subsection:... (11) The tax consequences to each party, including those federal and State tax consequences that would have been incurred if the marital and divisible property had been sold or liquidated on the date of valuation. The trial court may, however, in its discretion, consider whether or when such tax consequences are reasonably likely to occur in determining the equitable value deemed appropriate for this factor. N.C. Gen. Stat (c) (2011). We begin by noting that the trial court did make an explicit finding of fact regarding tax consequences of the sale or liquidation of divisible property: 69. With regard to ' 50-20(c)(11), the [c]ourt finds that: a. No evidence was presented concerning tax consequences relating to sale or liquidation of marital or divisible property. Thus, we reject Defendant s meritless argument that the trial court failed to consider this factor as required by the statute. Defendant next contends that the finding of fact is erroneous because he submitted to the court a verified document

8 -8- (titled Contentions Why Equal Is Not Equitable ) in which he stated that, [i]n the event the [c]ourt makes a distributive award to [] Plaintiff, [D]efendant will be required to liquidate his interest in one or more of his real estate holdings, incurring substantial tax liability for so doing. This bare statement that tax consequences would occur, without any details such as amounts, rates of tax, or the like, was plainly inadequate to permit the trial court to meaningfully evaluate the equitable value appropriate for this factor. Defendant here simply failed to meet his burden of proof in regard to this factor. See White v. White, 312 N.C. 770, 776, 324 S.E.2d 829, 832 (1985) ( [A] party desiring an unequal division of marital property bear[s] the burden of producing evidence concerning one or more of the twelve factors in the statute and the burden of proving by a preponderance of the evidence that an equal division would not be equitable. ). Defendant nonetheless contends that he was prevented from producing evidence of tax consequences because he would have been required to know that the trial court was intending to distribute non-liquid property to him, and that he would be required to pay a cash award without having been awarded sufficient liquid assets to comply with the order. However,

9 -9- Defendant himself has helpfully drawn our attention to his verified submission to the trial court that, in the event of a distributive award to Plaintiff, he would be required to liquidate his interest in one or more of his real estate holdings, incurring substantial tax liability[.] Given his awareness of this possibility, Defendant had the opportunity to solicit opinions or estimates from tax professionals about the likely tax consequences of liquidating various real estate holdings, but, for reasons not reflected in the record before this Court, chose not to do so. This Court will hear no complaint from Defendant based upon his own failure to prepare and present the evidence he now claims was crucial for the trial court to consider. Defendant s final contention on this issue is that the court erroneously excluded evidence about the tax consequences after he made an offer of proof and requested the evidence be admitted pursuant to Rule 43(c). Rule 43(c) provides: In an action tried before a jury, if an objection to a question propounded to a witness is sustained by the court, the court on request of the examining attorney shall order a record made of the answer the witness would have given. The court may add such other or further statement as clearly shows the character of the evidence, the form in which it was offered, the objection made and the ruling thereon. In actions

10 -10- tried without a jury the same procedure may be followed, except that the court upon request shall take and report the evidence in full, unless it clearly appears that the evidence is not admissible on any grounds or that the witness is privileged. N.C. Gen. Stat. 1A-1, Rule 43(c) (2011). [U]nder N.C. Gen. Stat (c) (2003), the trial court must consider certain factors and must make findings as to each factor for which evidence was presented. Robertson, 167 N.C. App. at 570, 605 S.E.2d at 669 (citation omitted) (emphasis added). However, our review of the transcript reveals that, unlike the situation presented in the unpublished case 3 upon which Defendant relies, not only had the evidence been completed and the proceedings closed when Defendant first mentioned the affidavits he wished to present about tax consequences, the trial judge had already announced her ruling in open court. 3 In violation of our Rules of Appellate Procedure, Defendant failed to note that the opinion cited in his brief, McGuire v. Charest, 162 N.C. App. 360, 590 S.E.2d 477 (2004), is unpublished and further failed to attach a copy of that opinion to his brief. See N.C.R. App. P. 30(e)(3). Where a party cites an unpublished opinion but fails to comply with the requirement that it serve a copy thereof on all other parties in the case and on the court, we may decline to consider the unpublished case. Moreover, an unpublished decision of the North Carolina Court of Appeals is not controlling legal authority. Cary Creek Ltd. P ship v. Town of Cary, 203 N.C. App. 99, , 690 S.E.2d 549, 554 (2010) (citations, quotations marks, and brackets omitted), disc. review denied, 364 N.C. 600, 703 S.E.2d 441 (2010).

11 -11- Further, in the trial court, Defendant did not make an offer of proof or objection or even cite Rule 43; rather, his counsel asserted that, having made a distributive award, the trial court was then required to hold an additional hearing regarding the tax consequences flowing therefrom. This assertion lacks any support in either our General Statutes or extensive case law on the section 50-20(c) factors. Being totally void of merit, all of Defendant s arguments regarding tax consequences of the distributive award are overruled. II. Findings of Fact About Defendant s Liquid Assets In a related argument, Defendant contends the trial court erred in failing to find sufficient liquid assets from which Defendant could pay the distributive award. We disagree. Again, Defendant asserts that the trial court failed to make a finding regarding his ability to pay the distributive award despite the fact that the order contains a finding of fact on exactly this point. Finding of fact 74 states: Defendant has the ability to pay a cash distributive award. He has retained all distributions, income and other benefits from all of the marital entities since the date of separation. In addition, the court made findings of fact that Defendant made large withdrawals, distributions, and/or payments to himself

12 -12- during the postseparation period from various business entities, amounting to more than $2.1 million from Hicone and $1.4 million from Brookhollow Plaza. We also observe that Defendant refused to offer evidence regarding his cash on hand and specifically failed to comply with a subpoena for his personal bank account records. Having failed to produce evidence regarding his liquid assets and personal bank accounts in the trial court, Defendant s complaint that the trial court failed to evaluate such matters rings hollow. See Robertson, 167 N.C. App. at 570, 605 S.E.2d at 669 ( [T]he trial court must consider certain factors and must make findings as to each factor for which evidence was presented. ) (emphasis added). Indeed, in each case cited by Defendant, but unlike Defendant here, the party objecting to the trial court s failure to make findings regarding liquidity had presented evidence of liquid assets such as bank accounts and other sources of funds. See, e.g., Squires, 178 N.C. App. at 267, 631 S.E.2d at 165 ( [T]he court failed to make the required findings that [the] defendant had sufficient liquid assets from which to pay the distributive award [where his evidence raised the issue of liquidity]. ); Embler, 159 N.C. App. at 188, 582 S.E.2d at 630 ( Although [the] defendant may in fact be able to pay the distributive award,

13 -13- [the] defendant s evidence is sufficient to raise the question of where [the] defendant will obtain the funds to fulfill this obligation. ). Accordingly, this argument is likewise overruled. III. Findings of Fact About In-Kind Distribution In his final argument, Defendant contends that the trial court erred in failing to apply the presumption of an in-kind distribution. We again conclude that Defendant s argument is without merit. In pertinent part, section 50-20(e) provides that [where a trial court determines] that an equal division is equitable, it shall be presumed in every action that an in-kind distribution of marital or divisible property is equitable. This presumption may be rebutted by the greater weight of the evidence, or by evidence that the property is a closely held business entity or is otherwise not susceptible of division inkind. N.C. Gen. Stat (e). [I]n 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) (citation omitted).

14 -14- In finding of fact 73, the court specifically found that in-kind distribution would be impractical because [t]he marital estate consists primarily of closely held businesses which were dependent on Defendant s skills for their value and/or were governed by lending agreements which would prohibit transfer to Plaintiff. Defendant does not dispute the trial court s finding of fact that Brookhollow Plaza, Food Lion Plaza, and Piney Grove are closely held, which rebuts the presumption. See Pellom v. Pellom, 194 N.C. App. 57, 67, 669 S.E.2d 323, (2008) (finding no abuse of discretion where the presumption was rebutted by evidence that the defendant s assets included a closely held business), disc. rev. denied, 363 N.C. 375, 678 S.E.2d 667 (2009). As to Hicone Shopping Center, which is solely owned by Defendant, Defendant does not dispute the trial court s finding of fact that transfer of the Hicone Shopping Center to [P]laintiff would violate provisions of the operative lending agreement and trigger a default on the loan associated with the property. This argument is overruled. Plaintiff s Cross-appeal I. Classification of Distributions from and Diminution of Value in Marital Assets

15 -15- Plaintiff first argues that the trial court erred in classifying as separate property the profits and cash Defendant withdrew from certain marital assets during the postseparation period. Specifically, Plaintiff contends that distributions taken by Defendant from Hicone and Brookhollow Plaza during the postseparation period were incorrectly classified as Defendant s separate property rather than as divisible property subject to distribution. In a related argument, Plaintiff argues that the trial court erred in classifying as divisible property the diminution in value of Hicone, which the court found was due in part to Defendant s taking distributions. We agree that the classifications of the distributions from Hicone and of that entity s diminution in value are not supported by the court s findings of fact, but see no error in the classification of distributions from Brookhollow Plaza. 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. N.C. Gen. Stat (a). Section defines divisible property as including [p]assive income from marital property received after the date of

16 -16- separation, including, but not limited to, interest and dividends. N.C. Gen. Stat (b)(4)(c). In contrast, retained earnings of a corporation are not marital property until distributed to the shareholders. Allen v. Allen, 168 N.C. App. 368, 375, 607 S.E.2d 331, 336 (2005) (citations omitted). In addition, divisible property is presumed to include [a]ll appreciation and diminution in value of marital 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. N.C. Gen. Stat (b)(4)(a). Where the trial court is unable to determine whether the change in value of marital property is attributable to the actions of one spouse, this presumption [of subsection (b)(4)(a)] has not been rebutted and must control. Wirth v. Wirth, 193 N.C. App. 657, 661, 668 S.E.2d 603, 607 (2008) (citation omitted). A. Hicone Both before and after the date of separation, Defendant served as day-to-day manager of Hicone, for which he received management fees. However, in finding of fact 21, the court

17 -17- found that, beyond his management fees, Defendant withdrew $2,183, from Hicone over a five-year period after the date of separation ( the Hicone withdrawal ). The parties presented conflicting evidence about the nature of the funds withdrawn, with Plaintiff characterizing the money as passive income pursuant to section 50-20(b)(4)(c) (and thus divisible), while Defendant countered that the money represented retained earnings from Hicone (and thus his separate income). In finding of fact 52, the court stated that the Hicone withdrawal was taken into account in the date of separation appraisal and valuation of [Hicone] and was considered as a factor in determining that an equal division is equitable [and thus the court did not distribute this item to either party]. 4 4 Although finding of fact 52 is not challenged by Plaintiff as being unsupported by competent evidence, we note that, because the Hicone withdrawal occurred after the date of separation, this Court is unclear as to how the money could have been factored into Hicone s valuation on the date of separation. Our review of the report from Plaintiff s expert appraiser does not indicate that the Hicone withdrawal was factored into his estimate of Hicone s value as $9,650, as of 24 November In any event, finding of fact 52 is in clear conflict with finding of fact 21, in which the trial court found that a portion of the diminution in value of Hicone [] is due to [D]efendant paying himself the amount of $2,183, over a five year period. If Defendant s withdrawals from Hicone were somehow factored into Hicone s valuation as of the date of separation (per finding of fact 52), they cannot also have been a cause of Hicone s diminution in value thereafter (finding of fact 21).

18 -18- The court s determination that the Hicone withdrawal would not be distributed can be interpreted as a conclusion that the Hicone withdrawal was classified as separate rather than marital property. However, the court made no finding of fact about the nature of the Hicone withdrawal in support of that conclusion. Accordingly, we must vacate this conclusion and remand to the trial court for entry of findings of fact that would support a conclusion on the proper classification of the Hicone withdrawal and resolve the disputed issue presented by the parties evidence. See Hunt, 112 N.C. App. at 729, 436 S.E.2d at 861 ( The conclusion that property is either marital, separate or non-marital must be supported by written findings of fact. ); see also Small v. Small, 107 N.C. App. 474, 477, 420 S.E.2d 678, 681 (1992) ( In a trial without a jury, it is the duty of the trial judge to resolve all issues raised by the pleadings and the evidence by making findings of fact and drawing therefrom conclusions of law upon which to base a final order or judgment. ). Plaintiff also contends the trial court erred in classifying as divisible property the diminution in value of Hicone in light of its findings of fact. We agree.

19 -19- Our review of the order reveals that the trial court classified Hicone as divisible property and determined the net value of Hicone to be $4,092, on the date of separation and $3,134, on the date of distribution. Thus, the court determined that the diminution in value of Hicone was $958, The court classified the entire $958, diminution of Hicone s value between the dates of separation and distribution as divisible. However, the court also made the following findings of fact, which are unchallenged by either party and thus binding on appeal: 20. The [c]ourt finds that a portion of the diminution in value of [Hicone], between the date of separation and the date of distribution, is divisible property. The diminution is partly passive due to [the economic downturn]. 21. The [c]ourt finds that a portion of the diminution in value of Hicone [] is due to [D]efendant paying himself the amount of $2,183, over a five year period and paying his own personal expenses [from] Hicone [including his litigation costs. The trial court also notes other causes of Hicone s diminution in value.]. (Emphasis added). These explicit findings that (1) Hicone s diminution in value was only partly passive[,] (2) only a 5 Neither party asserts any error in the $0.83 discrepancy between these amounts as they appear in the order.

20 -20- portion of the diminution was divisible, and (3) a portion of the diminution was due to Defendant s actions do not support the trial court s conclusion that the entire diminution in value should be classified as divisible. See Hunt, 112 N.C. App. at 729, 436 S.E.2d at 861 ( Because the classification of property in an equitable distribution proceeding requires the application of legal principles, this determination is most appropriately considered a conclusion of law [which] must be supported by written findings of fact. ). Accordingly, we must vacate this conclusion and remand for the trial court to clarify what portion of the diminution of Hicone s value is divisible in light of its findings of fact. B. Brookhollow Plaza Plaintiff makes a similar argument as to the trial court s classification of money Defendant received from Brookhollow Plaza after the date of separation. In finding of fact 56, the trial court concluded that this money constitute[s] post[]separation income earned by [D]efendant and therefore [is] not marital or divisible property. This conclusion is supported by finding of fact 26, in which the court noted Defendant s involvement in the day-to-day operations of the property more than forty hours per week and that Defendant and

21 -21- his partner receive their income as distributions... as compensation for their time at work. This finding indicates that these distributions were not [p]assive income from marital property, N.C. Gen. Stat (b)(4)(c), but rather income earned by Defendant, and thus supports the conclusion that these distributions were not marital or divisible property. Because the court s conclusion that the distributions from Brookhollow Plaza is supported by this finding of fact, we must uphold it on appeal. See Mugno, 205 N.C. App. at 276, 695 S.E.2d at 498. Accordingly, Plaintiff s argument as to Brookhollow Plaza is overruled. II. Findings on Postseparation Increase in Value of Marital Assets Plaintiff next argues that the trial court erred in finding that the postseparation increase in value of marital business assets was due to Defendant s continued management role and thus not divisible. Specifically, Plaintiff contends that the trial court erred in classifying Brookhollow Plaza, Food Lion Plaza, and Piney Grove as separate property because Defendant failed to overcome the statutory presumption that postseparation increases in value of marital assets are divisible. We disagree. As noted supra,

22 -22- [a]ll appreciation and diminution in value of marital property and divisible property of the parties occurring after the date of separation and prior to the date of distribution [constitutes divisible property], 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. N.C. Gen. Stat (b)(4)(a). Under the plain language of the statute, all appreciation and diminution in value of marital and divisible property is presumed to be divisible property unless the trial court finds that the change in value is attributable to the postseparation actions of one spouse. Wirth, 193 N.C. App. at 661, 668 S.E.2d at 607. In Wirth, we held that where the trial court s finding clearly states that it was impossible to determine what portion of the decrease in value [] was due to forces which were beyond [the] defendant s control, and what amount was attributable to [the] defendant s active postseparation management... this presumption has not been rebutted and must control[.] Id. at , 668 S.E.2d at 607. Here, Plaintiff asserts that the trial court made no finding of fact explicitly stating that this presumption was rebutted, but cites no statute or case law that requires a trial court to do so.

23 -23- Unlike the order in Wirth, the trial court s order includes specific findings of fact that the increases in value of Defendant s interest in Brookhollow Plaza (finding of fact 26), Food Lion Plaza (findings of fact 31 and 40), and Piney Grove (finding of fact 41) were due to Defendant s active efforts. 6 Accordingly, Plaintiff s argument is overruled. III. Deduction of Interim Award from Distribution Award Finally, Plaintiff argues that the trial court erred in deducting from the total equitable distribution award the amount of the interim award where the interim award was paid from money withdrawn from Hicone by Defendant, resulting in a diminution of value which was classified (improperly per Plaintiff) as divisible property. As a result, Plaintiff contends that Defendant received a double benefit for those funds. However, Plaintiff stipulated that the trial court could consider and give credit for the interim award as provided for in our General Statutes. See N.C. Gen. Stat. ' 50-20(i1) ( Any [interim award] orders entered shall be taken into consideration at trial and proper credit given. ). This argument simply approaches from a different angle the same issue as that addressed in Plaintiff s argument I, supra. As such, any alleged double benefit to 6 Defendant owned a 50% interest in each of these properties with the remainder owned by a third party.

24 -24- Defendant will be resolved on remand when the trial court revisits the classification of the distributions from Hicone taken by Defendant and the resulting diminution in the value of Hicone. AFFIRMED IN PART; VACATED AND REMANDED IN PART. Judges MCGEE and GEER concur. Report per Rule 30(e).