Appeal by defendant from order entered 22 August 2000 by Judge
Margaret L. Sharpe and from order entered 3 October 2000 by Judge
C. Christopher Bean, both in District Court, Dare County. Heard in
the Court of Appeals 8 November 2001.
Kellogg and Evans, by Susan Harman-Scott, for plaintiff-
appellee.
The Twiford Law Firm, L.L.P., by Edward A. O'Neal, for
defendant-appellant.
McGEE, Judge.
Todd William Olving (defendant) appeals from orders of the
trial court denying his motions to continue and to set aside
judgment.
Debra Ann Olving (plaintiff) filed a verified complaint
(R.5)on 16 June 2000 seeking an absolute divorce and requesting
that the parties' 8 June 1999 separation agreement be incorporated
into the divorce judgment. Plaintiff alleged in her complaint:
1. That the Plaintiff is a resident of Dare
County of the State of North Carolina for more
than six months . . . preceding the
institution of this Action.
. . .
4. That the Plaintiff and Defendant
separated on June 8, 1999, and terminated
their marital relationship and thereafter
ceased to live together as husband and wife.
That Plaintiff intended at the date of
separation to remain permanently separated and
apart from the Defendant.
5. That the Plaintiff and Defendant have
lived separate and apart from each other since
the date of separation stated in Paragraph
four above, continuously and without
interruption.
. . .
7. That no claims exist for alimony or
equitable distribution.
8. The parties properly executed a valid
separation agreement . . . which provides that
it be incorporated in to the divorce decree
and become an order of the court.
Plaintiff's complaint was served on defendant on 20 June 2000.
Defendant filed a motion on 30 June 2000 to extend the time for
filing responsive and defensive pleadings for thirty days. An
order was filed on 30 June 2000 extending the time for defendant to
file responsive and defensive pleadings until and including 21
August 2000.
Plaintiff filed a motion for summary judgment on 2 August 2000
requesting that her verified complaint be accepted by the court "in
lieu of testimonial evidence and in support of the Plaintiff's
claim for an absolute divorce as provided in G.S. 50-10(d)."
Defendant's counsel sent defendant's unverified answer and
counterclaim to plaintiff's counsel by U.S. Mail and telefax on 21
August 2000 and filed the answer and counterclaim with the Clerk ofCourt on 22 August 2000. Defendant asked in his pleadings that he
be granted an absolute divorce from plaintiff, that the court
equitably divide the marital property, and that the separation
agreement be set aside. Defendant's counsel also sent to
plaintiff's counsel by U.S. Mail and telefax a motion to continue
the hearing on the absolute divorce incorporating the parties'
separation agreement on 21 August 2000 and filed the motion with
the Clerk of Court on 22 August 2000. Following a hearing on 22
August 2000, the trial court entered an order finding:
5. That there are no claims for alimony or
equitable distribution of marital property
between the parties. Further, the parties
have properly executed a separation agreement
filed with the court and have agreed for the
said separation agreement to be incorporated
in this Order.
The trial court concluded that:
1. No genuine issues exist as to any
material fact as to the Plaintiff's claim for
an absolute divorce.
. . .
3. That the parties properly executed a
valid separation agreement filed with the
court which provides that it be incorporated
into the divorce decree and become an order of
the court.
4. That the Plaintiff and Defendant be
granted an Absolute Divorce one from the
other.
The trial court granted plaintiff's motion for summary judgment,
awarded an absolute divorce, and incorporated the parties'
separation agreement into the divorce judgment, which was filed in
the office of the Clerk of Court on 22 August 2000 at 10:08 a.m. Defendant's answer and counterclaim and his motion to continue
were filed in the office of the Clerk of Court on 22 August 2000 at
11:18 a.m. The trial court entered an order at 1:51 p.m. that same
day, denying defendant's motion to continue stating that
[t]his cause was heard . . . on motion of
the defendant for a continuance. It appears
to the Court that the defendant is represented
by counsel, that the defendant was duly served
and noticed for this hearing, that defendant
obtained an order extending the time to file
an answer up to and including the 21st day of
August, 2000, that no answer has been filed,
that counsel for the defendant has appeared in
court for this hearing.
IT IS THEREFORE ORDERED, ADJUDGED AND
DECREED that the motion of the defendant for a
continuance of the hearing on plaintiff's
motion for summary judgment for an absolute
divorce and incorporation of the separation
agreement into the order is hereby denied.
Defendant filed a motion to set aside the judgment on 31
August 2000, citing N.C. Gen. Stat. § 1A-1, Rules 59 and 60. This
motion was denied in an order entered by Judge C. Christopher Bean
on 3 October 2000. Defendant appeals the 22 August 2000 and the 3
October 2000 orders.
I.
The dispositive issue in defendant's first five assignments of
error is whether defendant's answer and counterclaim raised genuine
issues of material fact, thus precluding summary judgment for
plaintiff.
Summary judgment is appropriate if "the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuineissue as to any material fact and that any party is entitled to a
judgment as a matter of law." N.C. Gen. Stat. § 1A-1, Rule 56(c)
(1999). Once a party seeking summary judgment makes the requisite
showing,
an adverse party may not rest upon the mere
allegations or denials of his pleading, but
his response, by affidavits or as otherwise
provided in this rule, must set forth specific
facts showing that there is a genuine issue
for trial. If he does not so respond, summary
judgment, if appropriate, shall be entered
against him.
N.C. Gen. Stat. § 1A-1, Rule 56(e) (1999).
Our Court has stated that
[a] verified pleading may be treated as an
affidavit for summary judgment purposes if it:
(1) is made on personal knowledge; (2) sets
forth such facts as would be admissible into
evidence; and (3) shows affirmatively that the
affiant is competent to testify to the matters
stated therein.
Daniel v. Daniel, 132 N.C. App. 217, 219, 510 S.E.2d 689, 690
(1999) (citing N.C. Gen. Stat. § 1A-1, Rule 56(e) (1990) and
Page
v. Sloan, 281 N.C. 697, 705, 190 S.E.2d 189, 194 (1972)).
In the present case, plaintiff filed a verified complaint in
which she stated, being first duly sworn, that she had
read the foregoing Complaint and that the same
is true to [her] own knowledge and belief,
except as to those matters and things stated
upon information and belief and as to those,
[she] believes them to be true.
In her motion for summary judgment filed 2 August 2000,
plaintiff requested that the court accept her verified complaint in
lieu of testimonial evidence and in support of her claim for
absolute divorce as provided in N.C. Gen. Stat. § 50-10(d)(1999).Upon our review, plaintiff's verified complaint satisfies the
statutory criteria to be treated as an affidavit, in that it
"state[s] in substance that the contents of the pleading verified
are true to the knowledge of the person making the verification,
except as to those matters stated on information and belief, and as
to those matters [she] believes them to be true” as required by
N.C. Gen. Stat. § 1A-1, Rule 11(b)(1999).
The trial court may enter summary judgment granting an
absolute divorce pursuant to N.C. Gen. Stat. § 1A-1, Rule 56 by
"finding all requisite facts from nontestimonial evidence presented
by affidavit, verified motion or other verified pleading." N.C.
Gen. Stat. § 50-10(d) (summary judgment appropriate for absolute
divorce pursuant to N.C. Gen. Stat. § 50-6 if based on one year's
separation and residence of one party in the state for a period of
six months). The trial court in this case made findings of fact in
its judgment based upon plaintiff's verified complaint.
In the case before us, defendant argues the trial court erred
in finding of fact number five and conclusions of law numbers one,
three and four: (1) because defendant properly served his answer
and counterclaim on plaintiff's counsel and properly filed these
pleadings within five days with the court, pursuant to N.C. Gen.
Stat. § 1A-1, Rules 5(b),(d),(e) and 12(a)(1); and (2) because
defendant's answer and counterclaim raised genuine issues of
material fact as to the claims determined by the trial court,
precluding summary judgment for plaintiff.
Whether or not defendant's answer and counterclaim wereproperly served and filed, defendant's argument nonetheless lacks
merit. Plaintiff's verified complaint establishes that plaintiff
and defendant lived separate and apart for one year and plaintiff
was a resident of the State of North Carolina for at least six
months prior to filing the action for divorce, being the
requirements for absolute divorce pursuant to N.C. Gen. Stat. §
50-6. In responding to plaintiff's motion for summary judgment,
the burden shifted to defendant to show a genuine issue of material
fact for trial, or that plaintiff was not entitled to judgment
sought as a matter of law.
Daniel,
132 N.C. App. at 219, 510
S.E.2d at 690
. We note defendant's answer and counterclaim were
not verified and the trial court is not required to consider a
defendant's unverified pleading for purposes of a summary judgment
motion.
Venture Properties I v. Anderson, 120 N.C. App. 852, 854-
55, 463 S.E.2d 795, 796-97 (1995),
disc. review denied, 342 N.C.
898, 467 S.E.2d 908 (1996).
Defendant failed to meet his burden in that he filed no
opposing affidavit to plaintiff's motion for summary judgment and
therefore did not show there was a genuine issue of material fact
for trial. The trial court did not err in granting plaintiff's
motion for summary judgment on her claim for absolute divorce.
Defendant's first five assignments of error are overruled.
II.
Defendant argues in his sixth assignment of error that the
trial court erred in granting plaintiff's motion for summary
judgment on her claim for absolute divorce because the trial courtfailed to follow correct procedures in granting summary judgment.
In his brief to our Court, defendant relies on the procedures
set forth in N.C. Gen. Stat. § 1A-1, Rule 55, dealing with entry of
default and default judgment. This reliance, however, is misplaced
because at issue in this assignment of error are the requisites of
N.C. Gen. Stat. § 1A-1, Rule 56 for entry of summary judgment. The
order of the trial court granting plaintiff's motion for summary
judgment does not refer to Rule 55, and there is also no reference
to Rule 55 in the record to show that Rule 55 was argued before or
considered by the trial court. Additionally, nowhere in the trial
court's order granting summary judgment does the court state that
its basis for entry of summary judgment for plaintiff was
defendant's "failure to file an answer" that could have resulted in
a default, as defendant argues.
Defendant's sixth assignment of error is overruled.
III.
Defendant contends in his seventh and eighth assignments of
error that the trial court erred in refusing to grant defendant's
motion to continue and such error was an abuse of discretion by the
trial court. Defendant argues that he served his answer and
counterclaim on plaintiff's counsel pursuant to N.C. Gen. Stat. §
1A-1, Rule 12(a)(1), and that he filed the pleadings with the court
within five days of service on plaintiff in compliance with N.C.
Gen. Stat. § 1A-1, Rule 5(b), (d) and (e). Defendant also argues
that the trial court was "duly informed" that defendant had filed
and served his answer and counterclaim along with his motion forcontinuance. Defendant contends the statement by the trial court
that "no answer has been filed" was incorrect and therefore the
order denying defendant's motion to continue is "void and of no
legal effect[.]" Further, defendant argues the trial court's
denial of his motion to continue was "an abuse of discretion based
on an erroneous conclusion of law" because defendant had properly
filed an answer. We disagree.
The standard of review on appeal for denial of a motion to
continue is generally whether the trial court abused its
discretion.
Wachovia Bank & Tr. Co. v. Templeton
Olds.-Cadillac-Pontiac, 109 N.C. App. 352, 356, 427 S.E.2d 629,
631,
disc. review denied, 333 N.C. 795, 431 S.E.2d 31 (1993). The
movant bears the burden of showing sufficient grounds to justify a
continuance.
Shankle v. Shankle, 289 N.C. 473, 482, 223 S.E.2d
380, 386 (1976).
In this case, the trial court stated in its order, and the
defendant does not dispute, that "counsel for the defendant has
appeared in court for this hearing" on the motion for continuance.
Defendant had the opportunity to argue his contentions at the
hearing before the trial court and to provide the trial court with
documents not appearing in the court file. Also, the order of the
trial court did not state that its basis for denying the motion for
continuance was defendant's failure to file an answer but merely
recited that no answer had been filed when it heard defendant's
motion.
Defendant relies on the procedures in N.C. Gen. Stat. § 1A-1,Rule 55 for a default as a basis for his argument that the trial
court abused its discretion in denying the motion for a
continuance. This reference is erroneous, however, because at
issue in these two assignments of error is defendant's motion to
continue and its denial, not entry of a default judgment.
Defendant has failed to show an abuse of discretion by the
trial court. The trial court did not abuse its discretion in
denying defendant's motion to continue. Defendant's seventh and
eighth assignments of error are overruled.
IV.
Defendant argues in his final two assignments of error that
the trial court erred by failing to set aside the divorce judgment
pursuant to N.C. Gen. Stat. § 1A-1, Rule 59(a)(8) and N.C. Gen.
Stat. § 1A-1, Rule 60(b)(4) because there were genuine issues of
material fact which precluded summary judgment for plaintiff.
A motion for a new trial, as well as a motion to set aside
judgment, are within the sound discretion of the trial court, whose
ruling is reviewable by our appellate courts only for abuse of
discretion.
Worthington v. Bynum and Cogdell v. Bynum, 305 N.C.
478, 482, 290 S.E.2d 599, 602 (1982) (discussing N.C. Gen. Stat. §
1A-1, Rule 59).
See also Cole v. Cole, 90 N.C. App. 724, 370
S.E.2d 272,
disc. review denied, 323 N.C. 475, 373 S.E.2d 862
(1988) (discussing N.C. Gen. Stat. § 1A-1, Rule 60(b)).
"A new trial may be granted . . . [based upon] [e]rror in law
occurring at the trial and objected to by the party making the
motion[.]" N.C. Gen. Stat. § 1A-1, Rule 59(a)(8) (1999). Further,"the court may relieve a party . . . from a final judgment, order,
or proceeding . . . [if a] judgment is void." N.C. Gen. Stat. §
1A-1, Rule 60(b)(4) (1999).
Because we determined in Part I that the trial court did not
err in granting summary judgment for plaintiff, we find no abuse of
discretion by the trial court in denying defendant's motion to set
aside the judgment. Defendant's final two assignments of error are
overruled.
We affirm the orders of the trial court.
Affirmed.
Judges HUNTER and BRYANT concur.
Report per Rule 30(e).
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