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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
CORA ELIZABETH McINTOSH Plaintiff, v. DANNY TILMON McINTOSH Defendant
Filed: 17 July 2007
1. Trials_continuance denied--no abuse of discretion
The trial court did not abuse its discretion by denying a continuance for an equitable
distribution trial in light of the numerous and lengthy delays in hearing the case, and of the
court's notice to plaintiff to hire an attorney and be ready to move forward.
The trial court did not err by finding that the parties had entered into a valid consent
judgment in an equitable distribution case where plaintiff agreed that she had made a choice,
albeit between two unappealing options (settling or proceeding to trial without counsel).
3. Civil Procedure_Rule 60 motion for relief_denied_well-reasoned decision
The trial judge did not err by denying plaintiff's Rule 60 motion for relief from a consent
judgment where the judge entered a nine-page order, with a timeline and transcript attached, and
made 25 relevant and detailed findings and seven conclusions. The decision was well-reasoned
and based on the judge's lengthy experience with the parties and the case.
Appeal by plaintiff from judgment entered 6 September 2005 and
order entered 17 March 2006 by Judge Rebecca B. Knight in District
Court, Buncombe County. Heard in the Court of Appeals 19 March
The Sutton Firm, P.A., by April Burt Sutton, for plaintiff-
Mary Elizabeth Arrowood, for defendant-appellee.
In this appeal arising from a consent judgment for equitable
distribution, the plaintiff argues that the trial court erred in a
number of respects relating to her lack of counsel at trial and her
subsequent need to represent herself. After a careful review of
the record, we find no error. Plaintiff Cora Elizabeth McIntosh and Defendant Danny Tilmon
McIntosh married in 1977 and separated on December 31, 2000. The
two divorced on 27 June 2002, and Ms. McIntosh filed a complaint
against Mr. McIntosh on 2 May 2002, for child custody and support,
alimony, post-separation support, equitable distribution and writ
of possession. On 2 December 2002, the trial court ordered Ms.
McIntosh to file her equitable distribution affidavit on or before
3 January 2003, and told both parties and their respective counsel
to be present at a pre-trial conference set for 6 February 2003.
At the 6 February pre-trial conference, Mr. McIntosh filed a
motion to dismiss the complaint for insufficiency of process and
service of process; Ms. McIntosh did not attend the pre-trial
conference. At another hearing on 6 March 2003, the trial court
found that Ms. McIntosh had failed to comply with the 2 December
order and had not offered just cause for such failure; the trial
court ordered Ms. McIntosh to file her equitable distribution
affidavit by 14 March 2003, or the cause of action would be
dismissed with prejudice. On 13 March 2003, the trial court denied
Mr. McIntosh's motion to dismiss, finding that service had been
proper; Ms. McIntosh filed her equitable distribution affidavit on
that same day.
Following an answer and counter-complaint from Mr. McIntosh,
as well as an appeal of the denial of his motion to dismiss that he
elected not to pursue, the equitable distribution claim was
scheduled for trial on 22 March 2004. However, in early March, a
new attorney filed a notice of appearance as counsel for Ms.McIntosh and requested a continuance due to insufficient time to
prepare for the trial and a need for additional time for a
financial expert to review documents received in discovery. Ms.
McIntosh's former counsel, from Legal Aid of North Carolina, also
filed a motion to withdraw as attorney of record, stating that Ms.
McIntosh had hired other counsel, that [she] had been
uncooperative with the attorney . . ., that [she] and the attorney
were no longer able to maintain a meaningful relationship or
effectively communicate[.] The trial court granted the motion to
withdraw and continued the equitable distribution trial, first to
4 May 2004, and then, after an amended order, to 21 June 2004.
On 7 June 2004, Ms. McIntosh filed another motion to continue
to allow her expert additional time to obtain and review documents;
the trial was continued to 14 September 2004. Mr. McIntosh then
filed a motion to continue so that his expert could be available to
testify, and the trial was continued to January 2005. On 31 March
2005, after the January trial, an equitable distribution judgment
was entered, but it was subsequently set aside on 28 June 2005, due
to inadequate stipulations at trial. A new trial was scheduled for
8 August 2005.
Prior to the August trial, Ms. McIntosh's second attorney
filed a motion to withdraw, citing as the reason Ms. McIntosh's
failure to pay for her services. The trial court allowed the
motion and continued the case to 6 September 2005, to allow Ms.
McIntosh time to find a new lawyer. At that time, the trial court
also instructed Ms. McIntosh that she needed to be ready to proceedon 6 September; Ms. McIntosh informed the trial court that she was
expecting to have a loan approved that afternoon and would hire an
attorney within the week, so would be ready to move forward on 6
Nevertheless, Ms. McIntosh faxed a motion for continuance to
the court on 29 August 2005, which the trial court stated was not
seen until the time of the hearing on 6 September. The trial court
denied the motion to continue based upon the prior reasons that
this was why the case was continued last time. Ms. McIntosh
informed the trial court that she certainly [was] not qualified to
represent [herself] and [she] would beg the Court to allow [her] to
get the loan and get an attorney to represent [her][,] as it
would be such an unfair advantage . . . not to have an attorney.
The trial court noted that Ms. McIntosh had had a month to
make arrangements to hire an attorney and the case was no
closer today than we were a month ago[.] Ms. McIntosh and the
defense counsel both mentioned to the trial court that each had
made settlement offers to the other. The defense counsel also
informed the trial court that she [does not] think there's going
to be a whole lot of difference from what we had last time. So I
certainly don't think it's a surprise to anybody.
The trial court then refused to delay the proceedings and
in structed Ms. McIntosh that she was present during the last trial
and so [she] understand[s] the format and how things proceeded . .
. the things [she] testified about. The trial court suggested to
Ms. McIntosh that: So, if you are totally at a loss, . . . you
either settle your case and agree that you're
going to give up some things that you didn't
think you were going to give up before and
just at least know what you're going to get,
or you're going to have to . . . come up with
a way of how you're going to offer your
evidence. But you've been through this entire
proceeding before so it's not the first time
that you've gone through this. So it's up to
you. You're welcome to settle your case,
you're welcome to try your case. But if I
have no evidence and you offer no evidence, I
can't proceed. I can't enter an order. And I
can dismiss your claim.
Ms. McIntosh subsequently entered into negotiations with Mr.
McIntosh's attorney, and the two parties reached an agreement for
a consent judgment of equitable distribution. The trial court
questioned Ms. McIntosh as to the voluntariness of her entry into
the consent judgment; she responded that she felt she was left
with no other choice but to do this, and the trial court noted
that it was still Ms. McIntosh's choice. Ms. McIntosh stated that
it was the best [she] could do because [she] can't argue [her] own
case and acknowledged that she was not threatened into signing the
judgment. After likewise questioning Mr. McIntosh, the trial court
entered the judgment.
On 5 October 2005, Ms. McIntosh filed a Rule 60 motion,
seeking to have the consent judgment set aside for excusable
neglect or for any other reason justifying relief from the
operation of the judgment, including alleged duress and pressure
applied by the trial court due to her lack of representation. The
trial court denied the Rule 60 motion on 17 March 2006, entering a
nine-page order recounting the procedural history of the case andthe reasons for the denial of the motion to continue, and attaching
a six-page timeline and the entire trial transcript.
Ms. McIntosh now appeals, arguing that (I) the trial court
abused its discretion in denying her motion for continuance of the
equitable distribution trial; (II) the evidence does not support
the trial court's finding that the parties entered into a valid
consent judgment; and (III) the trial court erred in denying her
Rule 60 motion for relief from the 6 September 2005 consent
 First, Ms. McIntosh argues that the trial court abused its
discretion in denying her motion for continuance of the equitable
distribution trial. We disagree.
Under the North Carolina Rules of Civil Procedure, [a]
continuance may be granted only for good cause shown and upon such
terms and conditions as justice may require. N.C. Gen. Stat. §
1A-1, Rule 40 (2005). Moreover, a motion for continuance is
ordinarily addressed to the sound discretion of the trial judge
and not subject to review on appeal absent an abuse of that
discretion. State v. Parton, 303 N.C. 55, 68, 277 S.E.2d 410, 419
(1981), overruled on other grounds, State v. Freeman, 314 N.C. 432,
437-38, 333 S.E.2d 743, 746-47 (1985); see also Caswell Realty
Assocs. I, L.P. v. Andrews Co., Inc., 128 N.C. App. 716, 721, 496
S.E.2d 607, 612 (1998) (Absent an abuse of discretion, the court's
ruling [on a motion for continuance] will not be disturbed on
appeal. (citation omitted)). This Court will find such an abuseof discretion only if the trial court's decision was unsupported
by reason and could not have been a result of competent inquiry.
Wiencek-Adams v. Adams, 331 N.C. 688, 691, 417 S.E.2d 449, 451
Here, Ms. McIntosh attempts to argue that the trial court's
denial of her motion for a continuance violated her right to
counsel, and, as such, the decision is a reviewable question of
law. See Parton, 303 N.C. at 68, 277 S.E.2d at 419 (However, when
the motion [for continuance] is based on a right guaranteed by the
United States or North Carolina Constitutions, the question
presented is a reviewable question of law.). Nevertheless, we
observe that there is no liberty interest at stake in an equitable
distribution trial; accordingly, there is no constitutional right
to counsel. See King v. King, 144 N.C. App. 391, 393, 547 S.E.2d
846, 847 (2001) (holding that no right to counsel in trial for
modification of child support because due process requires
appointed counsel only where an individual cannot afford counsel
on his own and where the litigant may lose his physical liberty if
he loses the litigation (citation and quotation omitted)). Thus,
we review the trial court's decision only for an abuse of
The record before us shows that Ms. McIntosh filed her
equitable distribution claim in May 2002, yet due to a number of
delays and continuances by both parties, the trial was not held
until September 2005, over three years later. After granting Ms.
McIntosh a continuance in August 2005, the trial court instructedMs. McIntosh to be ready for trial in September; despite this
direction, Ms. McIntosh still requested another continuance, based
on her continuing failure to hire a new attorney - the same reason
as previously - at the September trial date. The record further
indicates that the 31 March 2005 equitable distribution judgment
was set aside by the trial court for procedural, not substantive,
reasons, and the September trial was likely to be almost identical
to the earlier proceedings.
In light of the numerous and lengthy delays in hearing this
case, and of the trial court's notice to Ms. McIntosh to hire an
attorney and be ready to move forward at the September trial date,
we agree with the trial court that Ms. McIntosh did not show good
cause for, nor did justice require, another continuance.
Accordingly, we see no abuse of discretion in the court's denial of
Ms. McIntosh's motion for a continuance. This assignment of error
 Next, Ms. McIntosh argues that the trial court erred by
finding that the parties entered into a valid consent judgment of
equitable distribution. We disagree.
This Court has repeatedly held:
The authority of a court to sign and enter a
consent judgment depends upon the unqualified
consent of the parties thereto, and the
judgment is void if such consent does not
exist at the time the court sanctions or
approves the agreement of the parties and
promulgates it as a judgment.
Hill v. Hill, 97 N.C. App. 499, 501, 389 S.E.2d 141, 142 (1990)(citing Lynch v. Lynch, 74 N.C. App. 540, 329 S.E.2d 415 (1985),
and Overton v. Overton, 259 N.C. 31, 129 S.E.2d 593 (1963)); see
also Buckingham v. Buckingham, 134 N.C. App. 82, 87, 516 S.E.2d
869, 873-74, disc. review denied, 351 N.C. 100, 540 S.E.2d 353
(1999). However, in order to be valid, consent judgments do not
require the parties to appear in court and acknowledge to the court
their continuing consent to the entry of the judgment. Tevepaugh
v. Tevepaugh, 135 N.C. App. 489, 492, 521 S.E.2d 117, 120 (1999).
Indeed, absent any circumstances to put the court on notice that
one of the parties does not actually consent thereto, a judge may
properly rely upon the signatures of the parties as evidence of
consent to a judgment. Wachovia Bank & Trust Co., N.A. v.
Bounous, 53 N.C. App. 700, 706, 281 S.E.2d 712, 715 (1981); see
also Ledford v. Ledford, 229 N.C. 373, 376, 49 S.E.2d 794, 796
(1948) (noting that, if supported by some evidence, the findings of
fact made by the trial judge in determining whether a party gave
consent to a judgment as entered are binding on appeal because the
court is the judge of the weight and credibility of the evidence).
In the instant case, Ms. McIntosh concedes that she signed the
consent judgment of equitable distribution that was presented to
the trial court for approval and entry. However, she contends that
there were circumstances to put the court on notice that she did
not actually consent to the agreement and in fact signed only under
the threat and duress of the possibility of having her complaint
dismissed. When questioned by the trial court as to the
voluntariness of her consent to the judgment, Ms. McIntosh answeredthat she felt she was left with no other choice but to do this
and that she decided the consent judgment was the best that I
could do because I can't argue my own case.
The transcript also makes clear, however, that Ms. McIntosh
acknowledged that she had still made a choice, waiving her option
of going to trial in favor of having a certain outcome with the
consent judgment, albeit a choice between what she believed to be
two unappealing options. Moreover, Ms. McIntosh informed the trial
court that she had not been threatened, intimidated, or bullied in
any way into signing the consent judgment. Ms. McIntosh
participated in negotiations with opposing counsel throughout the
day, and the consent judgment ultimately agreed to was
substantially similar to the one entered and subsequently set aside
by the trial court in March 2005.
We find that, notwithstanding her displeasure at the
circumstances, Ms. McIntosh signed the agreement in the absence of
threat, coercion, intimidation, or duress, and her consent was
therefore voluntary. The consent judgment is valid, and this
assignment of error is overruled.
 Ms. McIntosh's final argument on appeal is that the trial
court erred by denying her Rule 60 motion for relief from the
consent judgment, because the judgment was void or, alternatively,
because her lack of preparation for the equitable distribution
trial was due to excusable neglect. We disagree.
Rule 60 offers parties the opportunity to have a finaljudgment set aside due to clerical and other mistakes,
inadvertence, excusable neglect, newly discovered evidence, fraud
on the court, or [a]ny other reason justifying relief from the
operation of the judgment. N.C. Gen. Stat. § 1A-1, Rule 60
(2005). Further, it is well settled that Rule 60(b)(6) does not
include relief from errors of law or erroneous judgments, and is
therefore not a substitute for appellate review. Baxley v.
, 179 N.C. App. 635, 634 S.E.2d 905, 907 (citing Garrison ex
rel. Chavis v. Barnes
, 117 N.C. App. 206, 210, 450 S.E.2d 554, 557
(1994)), disc. review denied
, 360 N.C. 644, 638 S.E.2d 462 (2006).
Such motions are addressed to the sound discretion of the trial
court and its ruling will not be disturbed absent an abuse of that
discretion. Gibson v. Mena
, 144 N.C. App. 125, 128, 548 S.E.2d
745, 747 (2001).
Because we have concluded that the consent judgment was not
void as a matter of law, we consider Ms. McIntosh's Rule 60 motion
only on the grounds of excusable neglect. The issue of what
constitutes 'excusable neglect' is a question of law which is fully
reviewable on appeal. In re Hall
, 89 N.C. App. 685, 687, 366
S.E.2d 882, 884, disc. review denied
, 322 N.C. 835, 371 S.E.2d 277
(1988). As held by our Supreme Court,
While there is no clear dividing line as to
what falls within the confines of excusable
neglect as grounds for the setting aside of a
judgment, what constitutes excusable neglect
depends upon what, under all the surrounding
circumstances, may be reasonably expected of a
party in paying proper attention to his case.
Thomas M. McInnis & Assocs., Inc. v. Hall
, 318 N.C. 421, 425, 349S.E.2d 552, 554-55 (1986). Thus, we have previously noted that
[d]eliberate or willful conduct cannot constitute excusable
neglect, nor does inadvertent conduct that does not demonstrate
diligence. Couch v. Private Diagnostic Clinic
, 133 N.C. App. 93,
103, 515 S.E.2d 30, 38 (citations omitted), aff'd
, 351 N.C. 92, 520
S.E.2d 785 (1999). We have also held that the failure of a party
to obtain an attorney is not excusable neglect. See Creasman v.
, 152 N.C. App. 119, 124-25, 566 S.E.2d 725, 729 (2002);
, 89 N.C. App. at 688-89, 366 S.E.2d at 885.
Here, Ms. McIntosh was put on notice by the trial court on 8
August 2005 that she needed to hire an attorney and be prepared to
proceed with trial on 6 September 2005. She assured the trial
court that she planned to hire an attorney within the week;
although the record suggests that she was having financial
difficulties, it also shows that these proceedings had been going
on for over three years, and she had contributed to those delays.
In her order denying Ms. McIntosh's Rule 60 motion, the trial
court recounted the long history of this case and also made
numerous findings in concluding that Ms. McIntosh's failure to hire
an attorney [did] not rise to the level of excusable neglect.
That nine-page order, with a timeline of the case and the trial
transcript attached, included twenty-five relevant and detailed
findings of fact and seven conclusions of law to support the trial
court's denial of Ms. McIntosh's Rule 60 motion. Under those
circumstances, we can find no abuse of discretion, as the trial
court clearly made a well-reasoned decision based on her lengthyexperience with these parties and this case. Accordingly, this
assignment of error is overruled.
Chief Judge MARTIN and Judge GEER concur.
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