CANDY WILKINSON,
Plaintiff,
v. Catawba County
No. 03 CVD 3430
LARRY WILKINSON,
Defendant.
David Shawn Clark, P.A., by D. Shawn Clark, for plaintiff
appellant.
Crowe & Davis, P.A., by H. Kent Crowe, for defendant appellee.
McCULLOUGH, Judge.
Plaintiff-wife and defendant-husband were married on 14
February 1997 and one child was born of the marriage. On 12
November 2003, wife filed a complaint for a domestic violence
protective order. On 17 November 2003, husband filed an answer and
a counterclaim requesting custody and child support; divorce from
bed and board; and equitable distribution. On 7 April 2005, the
parties were divorced. On 21 September 2005, a pretrial order for
equitable distribution was filed. In this pretrial order, the
parties made certain stipulations as to the equitable distribution
and narrowed the issues requiring determination by the trial court.
The issues identified in the pretrial order were tried before JudgeSigmon. On 11 April 2006, the trial court entered a corrected
order for equitable distribution. Wife now appeals this order.
In her sole assignment of error on appeal, wife asserts that
the trial court erroneously determined that certain real property
located at 5515 E NC 150, Maiden, North Carolina, was marital
property rather than wife's separate property. She contends that
the evidence before the trial court showed that the property was
given to her by her parents to be held in trust for the parties'
son.
Despite wife's contention, our review of the record reveals
that the classification of the subject real property was not an
issue before the trial court. The pretrial order signed by both
parties provided that
by their signatures affixed hereto, each party
stipulates that he or she agrees with the
facts and issues classified as agreed upon and
stipulates the facts and issues classified as
being in dispute are accurately reflected and
that there are no other issues to be
determined by the Court[.]
The property at 5515 E NC 150 was included in Schedule D designated
as a list of “marital property upon which there is a disagreement
as to distribution and disagreement as to value.” (Emphasis added).
Further, paragraph 25(c) of the pretrial order provides that the
trial court will determine “ . . . the value of and which party
shall be the owner of the items in Schedule D.” By this
stipulation, the parties removed the classification of the subject
property from the matters to be resolved by the trial court.
Despathy v. Despathy, 149 N.C. App. 660, 662, 562 S.E.2d 289, 291(2002) (holding that stipulation by the parties to a particular
fact withdraws it from the realm of dispute).
It is within the discretion of the trial court to set aside a
stipulation of the parties. Lowery v. Locklear Constr., 132 N.C.
App. 510, 514, 512 S.E.2d 477, 479 (1999). However,“'[a] party to
a stipulation who desires to have it set aside should seek to do so
by some direct proceeding, and, ordinarily, such relief may or
should be sought by a motion to set aside the stipulation in the
court in which the action is pending, on notice to the opposite
party.'” Moore v. Richard West Farms, Inc., 113 N.C. App. 137,
141, 437 S.E.2d 529, 531 (1993) (citation omitted).
Here, wife took no action to set aside her stipulation as to
the disputed property and raises the issue for the first time in
this appeal. Consequently, we hold that wife is bound by her
stipulations, and this assignment of error is overruled.
No error.
Judges STEELMAN and LEVINSON concur.
Report per Rule 30(e).
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