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2. Divorce_equitable distribution_pleading_request and reserve_not merely a future
Defendant's pro se counterclaim requesting and reserving equitable distribution sufficiently established that she was making a present claim. Request connoted a petition or motion to the court; asking to reserve that claim did not transform the request into a nullity or render it an indication of intent to file in the future.
3. Divorce_alimony_sufficiency of request_grounds not stated_agreement between
The trial court properly dismissed a pro se request for alimony which provided no notice of any grounds for alimony. Allegations that plaintiff had agreed to and had been paying certain household bills and debts were not sufficient.
4. Pleadings_denial of amendment_arguments of counsel without evidence_no abuse of
The trial court did not abuse its discretion by denying defendant's motion to amend her counterclaim for alimony where she offered only the arguments of counsel (which did not constitute evidence) on equitable estoppel. The sparse assertion that the amendment should have been allowed in the interest of justice offers no reason to conclude that the trial judge abused his discretion in denying the motion.
Appeal by Defendant from judgment entered 14 November 2005
by Judge Craig Croom in Wake County District Court. Heard in the
Court of Appeals 14 September 2006. Alexander & Doyle, P.A., by Ann-Margaret Alexander and
Andrea Nyren Doyle, for Plaintiff-Appellee.
The Watts Law Firm, P.C., by Rebecca K. Watts, for Defendant-Appellant.
By a complaint filed 26 November 2003, Bernard Coleman (Plaintiff), through counsel, sought an absolute divorce from his wife, Louvenia H. Coleman (Defendant). Plaintiff alleged that the parties were married on 23 May 1975 and lived together until 1 June 2002, when they separated. No children were born of the marriage. Plaintiff alleged further that there were no issues pending between the parties.
On 18 December 2003, Defendant, proceeding pro se, filed an answer and counterclaim. Defendant admitted all the allegations of the complaint, except Plaintiff's representation that there were no pending issues. Defendant specifically denied such allegation and further answered by alleging that the parties had a long term verbal agreement by which Plaintiff had agreed to pay certain household bills and financial obligations of both parties, including, but not limited to, mortgage payment, second mortgage payment, cable bill, and car insurance. Defendant further alleged that Plaintiff had been making such payments since the parties separated. In addition, Defendant filed a counterclaim, consisting of the following pertinent paragraphs: 1. Defendant hereby requests and reserves the right for equitable distribution.
2. Defendant hereby requests alimony payments from Plaintiff in the amount of $1500.00 per month . . . .
WHEREFORE, Defendant prays judgment of the Court as follows:
. . . .
2. Defendant be granted the request to
reserve the right for equitable distribution;
3. Plaintiff be ordered to pay Defendant alimony payments in the amount of $1500.00 per month[.]
On Plaintiff's summary judgment motion, the trial court
heard his action for absolute divorce and, on 12 March 2004,
granted Plaintiff an absolute divorce from Defendant. The
court's judgment included a finding that all valid and timely
filed claims are preserved by the Court. On 18 March 2004,
Plaintiff filed his reply to Defendant's counterclaim, generally
denying Defendant's allegations and moving to dismiss the
counterclaim for failing to state a claim upon which relief can
On 20 January 2005, Defendant, through counsel, filed a motion to amend Defendant's answer and counterclaim, as well as a motion for attorney's fees. In the motion to amend, counsel alleged, inter alia, that the allegations of the answer and counterclaim filed by Defendant, pro se, were sufficient to putPlaintiff on notice that Defendant was seeking equitable distribution of marital assets and alimony, and that, given the length of the parties' marriage, the existence of significant marital assets to be divided, the Defendant's status as a Dependent Spouse, the Plaintiff's status as a supporting spouse, and the Plaintiff's marital misconduct, equity required the trial court to allow the motion to amend.
Plaintiff's motion to dismiss and Defendant's motion to amend were heard by the trial court on 23 September 2005. The judge heard arguments of counsel and reviewed memoranda of law submitted by each attorney. By judgment entered 14 November 2005, the court granted Plaintiff's motion to dismiss Defendant's equitable distribution counterclaim, concluding that Defendant failed to properly plead her equitable distribution action prior to the date of absolute divorce[.] The court also dismissed Defendant's alimony counterclaim for Defendant's failure to properly plead her alimony action as provided for in the North Carolina General Rules of Civil Procedure and N.C.G.S. sec. 50- 16.3A[.] Defendant's motion to amend her counterclaim was denied, as the motion to dismiss said claim has been granted. From the court's judgment, Defendant appeals. For the reasons set forth herein, we affirm the trial court's dismissal of Defendant's alimony counterclaim and the denial of Defendant'smotion to amend her counterclaim. We reverse the court's dismissal of Defendant's equitable distribution counterclaim.
N.C. Gen. Stat. § 50-11(c) (2003) (emphasis added). Accordingly,our inquiry in this instance is to determine if Defendant's
counterclaim hereby request[ing] alimony payments from Plaintiff
in the amount of $1500.00 per month is sufficient to state a claim
for alimony and, thereby, survive the 12 March 2004 judgment of
absolute divorce granted Plaintiff. We hold that it is not.
Once again, the statute provides no guidance for determining the sufficiency of the pleadings to support a claim for alimony, providing only that, in a proceeding under Chapter 50, either party may move for alimony. N.C. Gen. Stat. § 50-16.3A (2003). In Manning v. Manning, 20 N.C. App. 149, 154, 201 S.E.2d 46, 51 (1973), however, this Court considered this issue and found not adequate and sufficient a complaint which alleged merely that the defendant husband treated the plaintiff cruelly and offered indignities to her person[.] Id. at 154-55, 201 S.E.2d at 50. The Court held that these allegations were insufficient to state a valid claim for alimony despite the fact that, under the statute in effect at the time, the allegations stated grounds for awarding alimony. Id. at 155, 201 S.E.2d at 50. Noting that [s]uch a complaint does not give defendant fair notice of plaintiff's claim[,] the Court held that the true test of the sufficiency of a claim for relief is whether the pleading gives fair notice and states the elements of the claim plainly and succinctly[.] Id. at 154, 201 S.E.2d at 50 (citations omitted). Unlike a claim for equitable distribution which applies only to marital property, a claim for alimony may arise on several alternative grounds and requires the trial court's consideration of at least sixteen relevant factors in determining whether statutory grounds exist to award alimony and, if so, whether an award of alimony is equitable. N.C. Gen. Stat. § 50-16.3A. We thus agree with Plaintiff that a party seeking to claim alimony must comply with Rule 8 of the North Carolina Rules of Civil Procedure, and that an alimony pleading must contain [a] short and plain statement of the claim sufficiently particular to give the court and the parties notice of the transactions, occurrences, or series of transactions or occurrences, . . . showing that the pleader is entitled to relief[.] N.C. Gen. Stat. § 1A-1, Rule 8(a)(1) (2003) . Accord, Manning v. Manning, supra; 2 Suzanne Reynolds, Lee's North Carolina Family Law § 9.62, at 434 (5th ed. 2000) (pleading or motion [for alimony] should contain facts addressed to dependency, supporting spouse, and some of the economic and other facts that make an award of alimony equitable under the circumstances.).
Here, Defendant's bare request for $1,500 in monthly alimony payments provides no notice of any grounds upon which she may be pursuing and entitled to alimony, such as her status as the dependent spouse. Moreover, we disagree that the allegations inDefendant's answer, that Plaintiff had agreed to pay and had been paying certain household bills and debts of the parties, were adequate to put Plaintiff on notice that those allegations constituted the transactions, occurrences, or series of transactions or occurrences intended to be proved by Defendant in support of her claim for alimony. On the contrary, these allegations were made to refute Plaintiff's allegation that there were no issues pending between the parties. Without a sufficient indication in Defendant's counterclaim that Plaintiff's payment of certain household bills formed the basis for her contention that she was entitled to alimony, the pleading fails to make the connection between her bare assertion to a right to alimony and her answer refuting the allegations of Plaintiff's complaint. Furthermore, these allegations at most address certain economic factors that may make an award of alimony equitable. The pleading still fails to contain any allegations concerning grounds to support Defendant's entitlement to alimony as described in N.C. Gen. Stat. § 50-16.3A, such as dependency. Accordingly, we hold that the trial court properly dismissed Defendant's claim for alimony.
N.C. Gen. Stat. § 1A-1, Rule 15(a) (2003). Here, Plaintiff had
responded to Defendant's counterclaim before Defendant made her
motion to amend. Therefore, since Plaintiff declined to consent to
an amendment of Defendant's answer and counterclaim, Defendant
could amend her pleading only by leave of the trial court.
A denial of a motion to amend a pleading is reviewed for clearly shown abuse of discretion by the trial court. Walker v. Walker, 143 N.C. App. 414, 546 S.E.2d 625 (2001). Absent such a showing, the trial court's decision will not be disturbed on appeal. Id. Nevertheless, although an exercise of the court's discretion, '[o]utright refusal to grant the leave (to amend) without any justifying reason appearing for the denial is . . . abuse of that discretion.' Id. at 418, 546 S.E.2d at 628 (quotingFoman v. Davis, 371 U.S. 178, 182, 9 L. Ed. 2d 222, 226 (1962)). Factors to be considered by the trial judge in deciding whether to grant or deny a motion to amend include delay, bad faith, undue prejudice, and the futility of amendment. Walker, 143 N.C. App. at 418, 546 S.E.2d at 628 (citations omitted).
In this case, Defendant argues that the trial court abused its discretion because she should have been allowed to amend her pleading in the interest of justice[.] She argues further that she should be allowed to amend her pleading because plaintiff should be estopped from asserting the validity of her claims. Defendant's discussion of her equitable estoppel theories finds no support in any evidence in the record before this Court. At most, the record contains arguments of counsel made to the trial court, but not a scintilla of evidence in the form of testimony, affidavits, or exhibits tending to support the allegations which form the basis for Defendant's equitable estoppel argument on appeal. It is well settled that counsel's arguments do not constitute evidence. See State v. Swimm, 316 N.C. 24, 340 S.E.2d 65 (1986); In re Ford, 52 N.C. App. 569, 279 S.E.2d 122 (1981). This argument is improper and is rejected.
As for Defendant's argument that the trial court should have allowed her motion to amend in the interest of justice[,] this sparse assertion offers no reason for this Court to conclude thatthe trial judge abused his discretion in denying Defendant's motion. Plaintiff, however, notes that Defendant's motion to amend was filed ten months after he filed his response to Defendant's counterclaim, suggesting delay as one reason justifying the denial.
Defendant has failed to show that, under these circumstances, the trial judge abused his discretion in denying her motion to amend her counterclaim for alimony. Accordingly, this assignment of error is overruled.
The judgment of the trial court dismissing Defendant's alimony claim and denying her motion to amend such claim is affirmed. The judgment of the court dismissing Defendant's equitable distribution claim is reversed.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.
Judges STEELMAN and LEVINSON concur.
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