Appeal by plaintiff from judgment entered 18 April 2005 by
Judge H. William Constangy in Mecklenburg County District Court.
Heard in the Court of Appeals 15 May 2006.
Wyrick, Robbins, Yates & Ponton, LLP, by K. Edward Greene and
Heidi C. Bloom, for plaintiff-appellant.
Casstevens, Hanner, Gunter & Riopel, P.A., by Robert P.
Hanner, II, for defendant-appellee.
LEVINSON, Judge.
Betty Player (plaintiff) appeals from entry of summary
judgment in favor of Woodrow Player, Jr. (defendant). We affirm.
The issues raised on appeal pertain to a prenuptial agreement
executed by the parties. Relevant facts are summarized as follows:
Plaintiff and defendant started dating in January 1996, and became
engaged during the summer of 1997. They executed a premarital
agreement on 13 November 1997, and were married three weeks later.
In June 2002 the parties separated.
In April 2003 plaintiff filed a complaint for post separation
support, alimony, and equitable distribution. In his answer andcounterclaims, defendant denied the material allegations of
plaintiff's complaint and raised several defenses, including his
assertion that plaintiff's claims were barred by the terms of the
parties' premarital agreement (“the agreement”). Defendant also
asserted counterclaims for enforcement of certain provisions of the
agreement. Additionally, defendant sought a protective order
barring discovery of his financial records, on the grounds that the
records would not be relevant if the agreement were upheld. On 27
October 2004 defendant filed a motion for summary judgment on
plaintiff's claims and on his counterclaims. A hearing was
conducted on defendant's motions in November 2004. In February
2005 the trial court entered a protective order, pending its ruling
on the summary judgment motions. On 18 April 2005 the court
granted summary judgment in favor of defendant, both on plaintiff's
claims and defendant's counterclaims. From this order plaintiff
appeals.
Plaintiff appeals from a summary judgment order. “The trial
court should grant summary judgment 'if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to
any material fact and that any party is entitled to a judgment as
a matter of law.' N.C.G.S. § 1A-1, Rule 56(c) (2005). The
evidence must be considered 'in a light most favorable to the
non-moving party.'” McCutchen v. McCutchen, 360 N.C. 280, 285-86,624 S.E.2d 620, 625 (2006) (quoting Howerton v. Arai Helmet, Ltd.,
358 N.C. 440, 470, 597 S.E.2d 674, 693 (2004)).
“The party moving for summary judgment has the burden of
proving that there is no triable issue of material fact. This
burden may be met 'by proving that an essential element of the
opposing party's claim is non-existent, or by showing through
discovery that the opposing party cannot produce evidence to
support an essential element of his claim[.]'” Anderson v. Housing
Auth. of the City of Raleigh, 169 N.C. App. 167, 171, 609 S.E.2d
426, 428 (2005) (quoting Collingwood v. G.E. Real Estate Equities,
324 N.C. 63, 66, 376 S.E.2d 425, 427 (1989)). “When a motion for
summary judgment is properly supported, the burden shifts to the
nonmoving party to set forth specific facts showing there is a
genuine issue of fact. The nonmoving party cannot simply rely on
mere denials in an affidavit, but must at least bring forth facts
which forecast that a genuine issue of material fact still exists.”
Excel Staffing Serv., Inc. v. HP Reidsville, Inc., 172 N.C. App.
281, 288, 616 S.E.2d 349, 354 (2005) (citation omitted).
Affidavits submitted in opposition to a summary judgment
motion must meet the requirements of N.C. Gen. Stat. § 1A-1, Rule
56(e) (2005), which provides in relevant part that:
Supporting and opposing affidavits shall be
made on personal knowledge, shall set forth
such facts as would be admissible in evidence,
and shall show affirmatively that the affiant
is competent to testify to the matters stated
therein.
“A verified complaint may be treated as an affidavit if it (1) is
made on personal knowledge, (2) sets forth such facts as would beadmissible in evidence, and (3) shows affirmatively that the
affiant is competent to testify to the matters stated therein.”
Page v. Sloan, 281 N.C. 697, 705, 190 S.E.2d 189, 194 (1972). And,
in general, on “a motion for summary judgment, the evidence
presented to the trial court must be admissible at trial, N.C.G.S.
§ 1A-1, Rule 56(e)[.]” Howerton, 358 N.C. at 467, 597 S.E.2d at
692.
Plaintiff argues first that the trial court erred by
conducting a hearing on defendant's summary judgment motion, on the
grounds that she was not served with proper notice of the hearing
as required by N.C. Gen. Stat. § 1A-1, Rule 56 (2005). Plaintiff
concedes that she participated in the hearing without objecting to
the lack of notice or requesting a continuance. “A party waives
notice of a motion by attending the hearing of the motion and by
participating in the hearing without objecting to the improper
notice or requesting a continuance for additional time to produce
evidence.”
Anderson v. Anderson, 145 N.C. App. 453, 456, 550
S.E.2d 266, 269 (2001) (citations omitted). We conclude that
plaintiff waived any defect in notice of the hearing. This
assignment of error is overruled.
Plaintiff next argues that the trial court erred by entering
summary judgment in favor of defendant on the issue of the validity
of the agreement, on the grounds that there are genuine issues of
material fact on the issue of constructive fraud. We disagree. Plaintiff concedes the absence of fraud, duress, coercion, or
undue influence. However, she contends there are genuine issues of
material fact on whether defendant engaged in constructive fraud by
failing to disclose to plaintiff the extent of his financial
assets. Accordingly, we first review the pertinent statutory
grounds for invalidating a premarital agreement. N.C. Gen. Stat.
§ 52B-7 (a)(2) (2005) provides in pertinent part that a premarital
agreement is not enforceable “if the party against whom enforcement
is sought” proves that the agreement was unconscionable as written
and, before execution of the agreement, the party:
a. Was not provided a fair and reasonable
disclosure of the property or financial
obligations of the other party;
b. Did not voluntarily and expressly waive, in
writing, any right to disclosure of the
property or financial obligations of the other
party beyond the disclosure provided;
and
c. Did not have, or reasonably could not have
had, an adequate knowledge of the property or
financial obligations of the other party.
In the instant case, it is undisputed that Paragraph 11 of
agreement states that:
11. Each of the parties acknowledges that the
other has made a full and fair disclosure . .
. [of] incomes, assets, debts, liabilities,
and responsibilities[,] . . . [is] informed as
to, and has adequate knowledge of, all real
and personal property owned and possessed by
the other party[, and] . . . [is] satisfied
with the extent of their disclosure and,
therefore, enter into this Agreement with
sufficient knowledge of the financial affairs
of the other. Each party expressly waives any
right to disclosure of the property or
financial obligations of the other party
beyond the disclosure provided by the other inthe negotiations and execution of this
Agreement.
Under this provision of the agreement, plaintiff unequivocally
waives the right to any additional disclosure of defendant's
financial status. We conclude this paragraph renders untenable
plaintiff's argument that defendant engaged in constructive fraud
by failing to provide full disclosure of his assets.
Plaintiff, however, argues that there are issues of material
fact regarding her execution of the agreement. In support of her
assertion, plaintiff cites allegations in her Reply to defendant's
Answer and Counterclaims. However, plaintiff's reply is not
verified, and thus is not the equivalent of a sworn affidavit.
See
Venture Properties I v. Anderson, 120 N.C. App. 852, 854-55, 463
S.E.2d 795, 796 (1995) (where party “filed only an unverified
answer” this Court notes that “[c]ertain verified pleadings may be
treated as affidavits for the purposes of a motion for summary
judgment” but that an unverified pleading cannot be considered).
Plaintiff also argues that certain facts “call into question”
whether her signing of the agreement was voluntary.
See N.C. Gen.
Stat. § 52B-7 (a)(1) (2005) (premarital agreement not enforceable
where agreement not executed voluntarily). We disagree. The
evidence was uncontradicted that plaintiff was a college-educated
woman with a professional career, that her parents were available
for consultation, that the parties discussed the subject of a
premarital agreement several months before it was executed, and
that plaintiff was aware of her right to consult an attorney.
We conclude that plaintiff failed to produce any competentevidence raising a genuine issue of material fact regarding her
voluntary execution of the agreement, or her waiver of the right to
further disclosure of defendant's financial assets. Accordingly,
we do not reach the issue of the substantive fairness of the
agreement. This assignment of error is overruled.
Plaintiff argues next that the trial court erred by granting
summary judgment in favor of defendant on his counterclaims for
enforcement of certain provisions of the agreement. We disagree.
In his answer, defendant brought verified counterclaims,
supported by a sworn affidavit, seeking the following relief under
the agreement: (1) $30,000 reimbursement for paying plaintiff's
separate debts; (2) possession of the parties' federal income tax
refund check for tax year 2001, on the grounds that the amount
represented overpayment by defendant alone; (3) $6,000
reimbursement for the value of plaintiff's diamond engagement ring;
and (4) $5,000 reimbursement for money plaintiff made by selling
defendant's separate property. Although we find it unnecessary to
engage in a detailed analysis of the agreement, we note that
defendant's counterclaims are based on the plain language of the
agreement.
Plaintiff's response to defendant's counterclaims consisted of
an unverified Reply and an affidavit that does not address any of
the specific counterclaims. Plaintiff did not produce any
competent evidence denying the allegations of defendant's
counterclaims. Further, in her deposition, plaintiff admitted that
(1) she had not sold the engagement ring; (2) defendant had paidsome of her debts; (3) her federal income tax was withheld from her
paycheck; and (4) she had sold furniture belonging to defendant.
We conclude that plaintiff did not deny the allegations of
defendant's counterclaims, and has failed to present any evidence
raising a genuine issue of material fact about their validity.
Plaintiff argues on appeal that she could not defend against
defendant's summary judgment motion without access to defendant's
financial records, which were the subject of a protective order.
Of course, any party with insufficient access
to necessary facts to meet a motion for
summary judgment is protected by compliance
with Rule 56(f) which provides [in relevant
part]. . . [s]hould it appear
from the
affidavits of a party opposing the motion that
he
cannot for reasons stated present by
affidavit facts essential to justify his
opposition, the court may refuse the
application for judgment or . . . may make
such other order as is just.
Nasco Equipment Co. v. Mason, 291 N.C. 145, 150, 229 S.E.2d 278,
282 (1976) (emphasis added) (internal quotation marks omitted). In
the instant case, plaintiff did not offer an affidavit as required
by Rule 56(f). Nor did she argue at the hearing that any
particular information was needed to respond to defendant's summary
judgment motion.
Moreover, lack of detailed records of defendant's financial
situation did not prevent plaintiff from defending against the
counterclaims because it was within plaintiff's personal knowledge
whether or not she had: (1) sold the diamond engagement ring; (2)
written any checks for federal income tax; (3) incurred debt which
was paid by defendant; or (4) sold defendant's furniture. Weconclude that plaintiff failed to produce any evidence raising a
genuine issue of material fact regarding defendant's motion for
summary judgment on his counterclaims. This assignment of error is
overruled.
Plaintiff also argues she did not waive the right to equitable
distribution. However, the agreement included the following:
4. Separate Estates. . . . Each of the parties
hereby agrees that, in the event of a
separation or divorce, neither party shall
have, nor assert, any interest with respect to
any income or property, real or personal,
tangible or intangible, of the other party,
nor make any claim against the other party for
or to an equitable distribution of marital
property.
This assignment of error is overruled.
For the reasons discussed above, we conclude that trial court
did not err by entering summary judgment for defendant, and that
the court's order should be
Affirmed.
Chief Judge MARTIN and Judge JACKSON concur.
Report per Rule 30(e).
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