The trial court had jurisdiction to issue an “indicative ruling” on a Rule 60(b) motion filed by defendant after he filed a notice of appeal of the equitable distribution judgment. A revocable trust of which the parties were the sole trustees and beneficiaries was revoked when the parties stipulated in the pretrial order that property held in the trust was property owned by the parties and was marital property subject to equitable distribution. Because the trust was revoked by the actions of the parties, the trust was not a necessary party to the equitable distribution proceeding. The trial court erred when it failed to classify the defendant’s share of distributions from an LLC received by defendant after the date of separation as his separate property as provided by an interim distribution order entered earlier in the case. 

On the date of separation, the defendant owned a 4.5% interest in an LLC. The parties agreed that the interest in LLC was marital property. Also, on the date of separation, the parties were the sole trustees and beneficiaries of a revocable trust that held title to three properties that had been acquired during the marriage. The existence of the trust was not identified before or during the equitable distribution trial. The pretrial order identified the three properties as property owned by the parties and stipulated that the properties were marital property. An interim order was entered in 2016 that, among other things, distributed the 4.5% interest in the LLC equally between the parties, providing that each party would own 2.25% as their separate property. When the trial court entered the final equitable distribution judgment, the court distributed the three properties between the parties and distributed to wife as her separate property, one-half of distributions paid by the LLC during separation. The trial court classified the other half of the distributions as divisible property and divided them equally between the parties. The defendant appealed the judgment. 

Thereafter, the defendant filed a Rule 60(b) motion in which he stated that it had been discovered that the trust held title to the three properties distributed by the trial court. He argued that because the trust was a necessary party to the equitable distribution proceeding, the trial court had no jurisdiction to enter the equitable distribution judgment, citing Wenninger v. Wenninger, 901 S.E.2d 677 (COA, May 2024). The trial court entered an “indicative ruling” denying the Rule 60(b) motion. Indicative rulings are authorized by case law such as Bell v. Martin, 43 NC App 134 (1979). Although the trial court has lost jurisdiction due to an appeal, the trial court can enter an order informing the appellate court how it would rule on the motion if it had jurisdiction to act, thereby 21 allowing the appellate court to determine whether to proceed with the pending appeal or return the case to the trial court. 

The trial court determined that, as settlors of the trust, the parties retained the authority to revoke the revocable trust at any point in time, pursuant to the provisions in GS 36C-6-602(c). By stipulating in the pretrial order that the properties held in the trust were properties owned by them and were marital property, the parties had revoked the trust pursuant to GS 36C-6 602((c)(2)(c)(revocable trust can be revoked by “any written method … manifesting clear and convincing evidence of the settlor’s intent.”). The defendant then filed a writ of certiorari seeking review of the Rule 60(b) order. The court of appeals granted cert. to review the indicative ruling on the Rule 60(b) motion, and upon review, agreed with the trial court, ruling that the trust was not a necessary party to the equitable distribution proceeding because the parties had revoked the trust by the stipulations in the pretrial order. 



Regarding the equitable distribution judgment, the court of appeals held that the trial court erred in classifying one-half of the distributions from the LLC received by husband during separation as divisible property. Because the interim distribution order classified the ownership interest in the LLC as the separate property of the parties in equal shares, the distributions from the LLC also were the separate property of the parties in equal shares. The portion classified by the trial court as divisible property should have been classified as husband’s separate property.