ANNE IMPEMBA PROVENZANO,
Plaintiff
v
.
Wake County
No. 00CVD06336<
br>
PATRICK PROVENZANO,
Defendant
Herring McBennett Mills & Finkelstein, PLLC, by Scott Allen,
for plaintiff-appellee.
Brett A. Hubbard for defendant-appellant.
HUNTER, Judge.
Patrick Provenzano (“defendant”) appeals the trial court's
order granting Anne Impemba Provenzano's (“plaintiff”) motion for
relief from judgment of absolute divorce pursuant to Rule 60(b) of
the North Carolina Rules of Civil Procedure (“Rule 60(b)”). We
affirm, holding the trial court did not abuse its discretion in
setting aside the divorce judgment because the judgment was entered
as the result of mistake, inadvertence, and excusable neglect.
The relevant procedural history is summarized as follows:
Plaintiff filed a complaint for absolute divorce from defendant on
6 June 2000. The complaint referenced a pending action in WakeCounty District Court for post separation support and permanent
alimony, child custody and support, and attorney's fees.
Subsequently, on 4 August 2000, a judgment of absolute divorce
was entered in Wake County District Court. The trial court stated
in the judgment that plaintiff and defendant had separated from
each other on or about 5 June 2000 and had lived continuously
separate and apart from each other for a period of more than one
year preceding the institution of the action. The judgment ordered
the pending claims for post separation support and alimony, child
custody and support, and equitable distribution be preserved.
On 5 March 2001, plaintiff filed a motion for relief from
judgment pursuant to Rule 60(b) of the North Carolina Rules of
Civil Procedure. Plaintiff requested that the absolute divorce
judgment of 4 August 2000 be set aside for reasons of mistake,
inadvertence, and excusable neglect. Plaintiff further claimed the
judgment was void for lack of personal and subject matter
jurisdiction.
In an affidavit dated 2 April 2001, defendant stated that he
accepted the jurisdiction of the court in granting the absolute
divorce. Defendant additionally stated that he accepted the
divorce judgment and wished to continue to accept the court's order
of absolute divorce.
On 4 April 2001, a hearing was held on plaintiff's motion for
relief from judgment. Subsequently, on 16 August 2001, the trial
court granted plaintiff's motion after finding the following facts:
defendant was served a civil summons by Samuel McClintock, aprivate investigator, after the statute allowing a private process
server to serve a summons and complaint had expired; Ms. Crabtree,
plaintiff's attorney in the divorce action, believed equitable
distribution had been preserved in a pending action in Wake County
District Court when it had not been and Ms. Crabtree thus misled
the court into signing the judgment of absolute divorce on 4 August
2000; and there was no claim for equitable distribution pending at
the time of the 4 August 2000 judgment of divorce.
In its order granting relief from judgment, the trial court
concluded as a matter of law that the entry of the 4 August 2000
divorce judgment was the result of mistake, inadvertence, and
excusable neglect. The court further concluded that the court
lacked personal and subject matter jurisdiction when the judgment
was entered on 4 August 2000. Accordingly, the court set aside the
4 August 2000 divorce judgment.
On 23 August 2001, plaintiff made a motion to the court for
relief pursuant to Rule 60(a) of the North Carolina Rules of Civil
Procedure stating that the order setting aside the divorce judgment
should have been entered nunc pro tunc to the date of the hearing.
Thereafter, the trial court made a notation on the order indicating
that it was entered nunc pro tunc to 4 April 2001.
The sole issue raised by this appeal is whether the trial
court erred in setting aside the 4 August 2000 divorce judgment.
At the outset, appellate review of a trial court's ruling on
a Rule 60(b) motion is limited to determining whether the trial
court abused its discretion. Gibson v. Mena, 144 N.C. App. 125,548 S.E.2d 745 (2001). “An abuse of discretion is a decision
manifestly unsupported by reason or one so arbitrary that it could
not have been the result of a reasoned decision.” Briley v.
Farabow, 348 N.C. 537, 547, 501 S.E.2d 649, 656 (1998). Rule
60(b)(1) allows for relief from a final judgment or order for
“[m]istake, inadvertence, surprise, or excusable neglect.” N.C.
Gen. Stat. § 1A-1, Rule 60(b)(1) (2001). A motion made pursuant to
Rule 60(b)(1) must be filed within one year after the judgment or
order was entered. N.C. Gen. Stat. § 1A-1, Rule 60(b). Under Rule
60(b), there is “no bar to granting relief to a successful
plaintiff when adequate reason is shown.” Wood v. Wood, 297 N.C.
1, 7, 252 S.E.2d 799, 803 (1979). A trial court's findings of fact
are conclusive on appeal when they are supported by competent
evidence; however, the trial court's conclusions drawn from these
facts are subject to appellate review. Chance v. Henderson, 134
N.C. App. 657, 661, 518 S.E.2d 780, 783 (1999).
In an affidavit submitted to the trial court by plaintiff in
support of her Rule 60(b) motion, Ms. Crabtree, plaintiff's
attorney at the time the divorce judgment was entered, stated that
in her professional opinion, the final divorce decree was entered
into without equitable distribution being properly reserved due to
excusable neglect on the part of her and plaintiff. Ms. Crabtree
assumed representation of plaintiff from Mark Sokol, plaintiff's
previously retained attorney. According to Ms. Crabtree, she
believed that equitable distribution was included in the action
filed by Mr. Sokol prior to her representation of plaintiff. Thisbelief was based upon plaintiff's statements as well as information
received from Mr. Sokol's office that all claims, including
equitable distribution, had been made and were pending. Ms.
Crabtree's mistake was also based on the fact that plaintiff's file
contained several temporary restraining orders limiting defendant's
rights to distribute marital property. Further, an interim
distribution of property had been entered and defendant executed a
quitclaim deed upon marital real property located in North
Carolina. Ms. Crabtree claimed in her affidavit that she
inadvertently misled the court into entering a final divorce decree
without preserving an equitable distribution claim because of her
mistaken belief that equitable distribution had been preserved in
the prior action.
In its order for relief from judgment, the trial court found
the following:
7. As a result of mistake, inadvertence, and
excusable neglect detailed in her
affidavit[,] Ms. Crabtree believed that
equitable distribution had been preserved
in the 99 CVD 6750 action when it had not
been, and she thereby mislead [sic] this
Court into signing the divorce decree on
August 4, 2000. Filings with the court
on behalf of Defendant including the
filing of Lis pendens demonstrate that
the mistake of fact regarding the pending
equitable distribution proceedings was
mutual. The court itself labored under
this mistake of fact.
The court concluded that the entry of the 4 August 2000 divorce
judgment was the result of mistake, inadvertence, and excusable
neglect. “Whether conduct constitutes 'excusable neglect' presents a
conclusion of law, fully reviewable on appeal.” Couch v. Private
Diagnostic Clinic, 133 N.C. App. 93, 102, 515 S.E.2d 30, 37 (1999).
Excusable neglect within the meaning of Rule 60(b)(1) must have
occurred at or before judgment was entered and it must have caused
the judgment to be entered. PYA/Monarch, Inc. v. Ray Lackey
Enterprises, 96 N.C. App. 225, 227, 385 S.E.2d 170, 171 (1989).
Further, “[i]gnorance, inexcusable negligence, or carelessness on
the part of an attorney will not provide grounds for relief under
Rule 60(b)(1).” Clark v. Penland, 146 N.C. App. 288, 292, 552
S.E.2d 243, 245 (2001).
In the instant case, the trial court's findings of fact
support the conclusion of law that the “divorce judgment was the
result of mistake, inadvertence, and excusable neglect.” Ms.
Crabtree's affidavit reveals that both plaintiff and the office of
plaintiff's formerly retained counsel told Ms. Crabtree that a
claim for equitable distribution had previously been brought and
was pending. Ms. Crabtree's mistake of fact that the equitable
distribution claim was pending was also based on the fact that
plaintiff's file included several temporary restraining orders
limiting defendant's rights to distribute marital property.
Additionally, an interim distribution of property had been entered
and defendant, at his insistence, had executed a quitclaim deed
upon marital property located in North Carolina. Thus, there is
evidence supporting the conclusion that Ms. Crabtree's mistake of
fact constituted excusable neglect and was inadvertent. Inaddition, plaintiff's mistaken belief that an equitable
distribution claim was pending was excusable in light of the
technical nature of the distinctions between child support,
alimony, equitable distribution, and interim distributions.
Therefore, we hold that the court did not abuse its discretion in
setting aside the 4 August 2000 judgment of absolute divorce.
Although apparently not raised during the hearing on
plaintiff's Rule 60(b) motion and not addressed by the trial court
in its order setting aside the divorce judgment, we note that the
divorce judgment was void on its face for lack of subject matter
jurisdiction. One of the necessary requirements before an action
for divorce may be instituted in North Carolina is that the husband
and wife must have lived separate and apart for one year. N.C.
Gen. Stat. § 50-6 (2001); Bruce v. Bruce, 79 N.C. App. 579, 339
S.E.2d 855 (1986). Here, the trial court states in its judgment of
absolute divorce that plaintiff and defendant separated from each
other on or about 5 June 2000 and had lived continuously separate
and apart from each other for a period of more than one year
preceding the institution of the action. The divorce judgment was
filed on 4 August 2000 and it is clear that if plaintiff and
defendant separated on 5 June 2000, they could not have been
separated for a year prior to the institution of the action.
Therefore, it appears that the statutorily required separation
period had not been met and thus, the court did not have subject
matter jurisdiction. See Bruce, 79 N.C. App. 579, 339 S.E.2d 855
(stating the one year separation period is a jurisdictionalrequirement). With no subject matter jurisdiction, the divorce
judgment would be void on its face.
For the foregoing reasons we hold that the trial court did not
abuse its discretion by granting plaintiff's motion for relief from
judgment under Rule 60(b)(1). Furthermore, we note that even if
there had not been any mistake, inadvertence, or excusable neglect,
the divorce judgment would have been void due to lack of subject
matter jurisdiction according to the date of separation included on
the face of the judgment.
Affirmed.
Chief Judge EAGLES and Judge MARTIN concur.
Report per Rule 30(e).
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