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.
1. Appeal and Error-_appealability--domestic violence protective orders--
timeliness
The Court of Appeals did not err by dismissing defendant's appeal from three
domestic violence protective orders, and discretionary review of this issue was improvidently
allowed, because: (1) on 22 April 2004 the Court of Appeals dismissed defendant's appeal with
respect to the three protective orders, and thus, any language in the Court of Appeals' 5 October
2004 opinion pertaining to the protective orders was mere surplusage; (2) defendant did not file
his petition for discretionary review of the Court of Appeals' dismissal of the appeal until 5
November 2004; and (3) under Rule 15(b) of the North Carolina Rules of Appellate Procedure,
defendant's petition for discretionary review as to the protective orders was not timely filed.
2. Divorce--equitable distribution--motions to dismiss--Rules 59 and 60
The Court of Appeals did not err in an equitable distribution case by affirming the
trial court's denial of defendant's motions pursuant to N.C.G.S. § 1A-1, Rules 59 and 60 of the
North Carolina Rules of Civil Procedure, because: (1) defendant failed to preserve his right to
pursue a Rule 59(a)(8) motion since a defendant must show a proper objection at trial to the
alleged error of law giving rise to the Rule 59(a)(8) motion, and neither defendant's post-trial
motion nor the remaining record before us shows a proper objection at trial to any of the rulings
at issue; (2) it cannot be concluded from the record that the trial court abused its discretion in
ruling on defendant's Rule 59(a)(9) motion; (3) defendant based his Rule 60 motion on alleged
errors of law, but Rule 60(b) provides no specific relief for errors of law; and (4) defendant has
failed to demonstrate that the trial court abused its discretion in denying defendant's Rule 60(b)
motion.
3. Divorce--equitable distribution--partial summary judgment--timely notice of
appeal
The Court of Appeals erred by dismissing defendant's appeal from partial
summary judgment, dealing only with a portion of the property that was eventually to be
allocated following a hearing on plaintiff's claim for equitable distribution, and from the
equitable distribution judgment based on failure to file a timely notice of appeal, because: (1) the
partial summary judgment order was interlocutory and was, therefore, subject to appeal following
entry of the final equitable distribution judgment; (2) until the trial court's final distribution
order, defendant could not know how or if the real property in question would be valued when
the parties' assets were distributed; (3) any immediate appeal of the partial summary judgment
would have been premature since a full accounting and division of the parties' assets was still
pending before the trial court and (4) defendant's appeal of the partial summary judgment after
the trial court's entry of the equitable distribution judgment was consistent with the policy of
promoting judicial economy since a substantial right was not at stake.
4. Divorce--equitable distribution--marital property--gift
The Court of Appeals erred by upholding the equitable distribution judgment,
because: (1) the two tracts of real property dealt with in the partial summary judgment on 11
March 2003 should have been considered marital property when on the date of separation the
property in question was owned by plaintiff and defendant as tenants by the entirety; (2) the
court's 20 August 2003 final equitable distribution judgment does not disclose what value, if any,
was placed on the disputed tracts of real property; and (3) the record contains no evidence thatthe properties were a gift from defendant to plaintiff, and the trial court did not find the
conveyances to be a gift.
Justice TIMMONS-GOODSON did not participate in the consideration or
decision of this case.
On discretionary review pursuant to N.C.G.S. § 7A-31 of
a unanimous, unpublished decision of the Court of Appeals, 166
N.C. App. 516, 603 S.E.2d 585 (2004), affirming a judgment dated
20 August 2003 and an order dated 20 November 2003 entered by
Judge Mitchell L. McLean and dismissing defendant's appeal from a
judgment dated 13 July 2001 entered by Judge Jeanie R. Houston,
an order dated 22 July 2002 entered by Judge Jeanie R. Houston,
an order dated 14 July 2003 entered by Judge Edgar B. Gregory,
and an order entered 11 March 2003 by Judge Mitchell L. McLean,
all in District Court, Wilkes County. Heard in the Supreme Court
16 November 2005.
Vannoy, Colvard, Triplett & Vannoy, P.L.L.C., by H.C.
Colvard, Jr. and Daniel S. Johnson, for plaintiff-
appellee.
Theodore M. Molitoris and Michelle D. Reingold for
defendant-appellant.
PARKER, Chief Justice.
This case presents the issues of whether the Court of
Appeals erred in (i) dismissing defendant's appeal from three
domestic violence protective orders and from a partial summary
judgment for failure to file a timely notice of appeal, (ii)
affirming the trial court's denial of defendant's motions
pursuant to Rules 59 and 60 of the North Carolina Rules of Civil
Procedure, and (iii) upholding the equitable distributionjudgment. We affirm in part and reverse and remand in part the
decision of the Court of Appeals and conclude that discretionary
review was improvidently allowed in part.
Plaintiff and defendant were married on 14 October
1979. One child was born of the marriage. The parties separated
on 11 June 2001. On 25 June 2001 plaintiff filed a complaint in
Wilkes County District Court for temporary and permanent
protective orders, a divorce from bed and board, and equitable
distribution of the marital estate. An ex parte temporary
protective order was entered on that date.
On 13 July 2001 the trial court signed a judgment (i)
awarding plaintiff a divorce from bed and board and sole
possession of the former marital residence and (ii) converting
the temporary protective order into a permanent protective order.
The findings of fact in the judgment stated that defendant left
the marital home without telling plaintiff, causing the
[p]laintiff to file a missing persons report, and that defendant
quit both of his jobs. The trial court also found that plaintiff
is actually and substantially in fear of serious and imminent
bodily injury at the hands of [defendant]. On 15 July 2002
plaintiff filed a motion to renew the protective order. The
motion was allowed on 22 July 2002.
Approximately one month later, on 20 August 2002, a
judgment of absolute divorce was entered. The divorce judgment
did not address the parties' equitable distribution claims, which
remained pending until further action by the trial court. On 6 or 7 February 2003, plaintiff filed a motion for
partial summary judgment on the issue of title to two tracts of
land she claimed were conveyed to her in fee simple absolute by
defendant. Attached to the motion were two general warranty
deeds, executed by defendant on or about 19 July 2001.
Plaintiff's motion alleged defendant executed two (2) general
warranty deeds conveying to [p]laintiff all of his right title
and interest to certain tracts of real property. These
conveyances occurred approximately one month after the date of
separation and one year before entry of the parties' absolute
divorce decree. Plaintiff filed an affidavit in support of the
motion for partial summary judgment on 11 March 2003. That same
day the trial court granted plaintiff's motion. Defendant did
not respond or appear at the hearing.
On 1 July 2003 plaintiff filed a motion to renew the
protective order, stating that she still felt threatened in light
of the pending equitable distribution action. The trial court
allowed the motion on 14 July 2003. The 14 July 2003 order found
that defendant objected to continuance of the protective order.
Specifically, defendant asserted that the order was unnecessary,
and he expressed concern that it was interfering with the
operation of certain committees of the Ruritan Club of which both
parties were members.
On 20 August 2003 the trial court entered an equitable
distribution judgment concluding that equal distribution of the
property was equitable. The two tracts of land subject to the 11March 2003 summary judgment were excluded from consideration at
the equitable distribution hearing.
On or about 26 August 2003, defendant filed motions to
set aside the prior domestic violence protective orders, the
partial summary judgment covering the two tracts of real
property, and the equitable distribution judgment. Defendant
claimed that these rulings were invalid on account of errors of
law, and he sought to have them vacated pursuant to Rules 59 and
60 of the North Carolina Rules of Civil Procedure. Plaintiff
responded on 30 September 2003, moving to deny defendant's
motions and to [c]ancel [d]efendant's Notice of Lis Pendens
filed as to the tracts of real property involved in this matter.
On 20 November 2003 the trial court denied all of defendant's
motions and granted plaintiff's motion to remove the notice of
lis pendens. That same day defendant gave notice of appeal to
the Court of Appeals, appealing all three permanent domestic
violence protective orders, the partial summary judgment, the
equitable distribution judgment, and the order denying his
motions for relief pursuant to Rules 59 and 60.
On 7 April 2004 plaintiff filed a motion to dismiss
defendant's appeal. On 22 April 2004 the Court of Appeals
allowed plaintiff's motion to dismiss defendant's appeals as to
the domestic violence protective orders and denied the motion to
dismiss as to the remaining order and judgments being appealed.
On 5 October 2004 the Court of Appeals held that
defendant's appeals of the three protective orders and of the
partial summary judgment order were untimely filed and that thetrial court did not abuse its discretion in denying defendant's
Rule 59 and Rule 60 motions.
[1] With regard to the domestic violence protective
orders, plaintiff received the first permanent protective order
against defendant on 13 July 2001. The trial court renewed this
order on 22 July 2002 and again on 14 July 2003. Defendant did
not file his notice of appeal of these orders until 20 November
2003. On 22 April 2004 the Court of Appeals dismissed
defendant's appeal with respect to the three protective orders.
Thus, any language in the Court of Appeals' 5 October 2004
opinion pertaining to the protective orders is mere surplusage.
Defendant did not file his petition for discretionary review of
the Court of Appeals' dismissal of the appeal until 5 November
2004. Under Rule 15(b) of the North Carolina Rules of Appellate
Procedure, defendant's petition for discretionary review as to
the protective orders was not timely filed. Accordingly,
discretionary review of this issue was improvidently allowed.
[2] We now address defendant's Rule 59 and Rule 60
motions. On or about 26 August 2003, six days after entry of the
final equitable distribution judgment, defendant filed a Motion
to Set Aside Prior Orders for Errors of Law under North Carolina
Civil Procedure Rules 59(a)(8) ([e]rror in law occurring at the
trial and objected to by the party making the motion) and (a)(9)
([a]ny other reason heretofore recognized as grounds for [a] new
trial) and under Rules 60(b)(4) (The judgment is void.),
(b)(5) ([A] prior judgment upon which [the judgment] is based
has been reversed or otherwise vacated . . . .), and (b)(6)([a]ny other reason justifying relief from the operation of the
judgment). See N.C. R. Civ. P. 59, 60. Defendant sought to
have the three protective orders and the partial summary judgment
vacated and requested a new equitable distribution proceeding.
In order to obtain relief under Rule 59(a)(8), a
defendant must show a proper objection at trial to the alleged
error of law giving rise to the Rule 59(a)(8) motion. Neither
defendant's post-trial motion nor the remaining record before us
shows a proper objection at trial to any of the rulings at issue.
Nothing else appearing, from the record before us, defendant
failed to preserve his right to pursue a Rule 59(a)(8) motion.
This determination leaves defendant's Rule 59(a)(9)
motion, termed the catch-all. A trial court's ruling on a
motion for a new trial under Rule 59 is usually subject to an
abuse of discretion standard. Worthington v. Bynum, 305 N.C.
478, 482, 290 S.E.2d 599, 602 (1982). A trial court may be
reversed for abuse of discretion only upon a showing that its
actions are manifestly unsupported by reason. Clark v. Clark,
301 N.C. 123, 129, 271 S.E.2d 58, 63 (1980); see also Welch v.
Kearns, 261 N.C. 171, 172, 134 S.E.2d 155, 156 (1964). A ruling
committed to a trial court's discretion is to be accorded great
deference and will be upset only upon a showing that it was so
arbitrary that it could not have been the result of a reasoned
decision. White v. White, 312 N.C. 770, 777, 324 S.E.2d 829,
833 (1985). It has been long settled in our jurisdiction that
an appellate court's review of a trial judge's discretionary
ruling either granting or denying a motion to set aside a verdictand order a new trial is strictly limited to the determination of
whether the record affirmatively demonstrates a manifest abuse of
discretion by the judge. Worthington, 305 N.C. at 482, 290
S.E.2d at 602.
We are unable to conclude from the record before us
that the trial court abused its discretion in ruling on
defendant's Rule 59(a)(9) motion. Accordingly, we affirm the
Court of Appeals' ruling on this issue.
Defendant based his Rule 60 motion on alleged errors of
law. However, Rule 60(b) provides no specific relief for errors
of law. See Hagwood v. Odom, 88 N.C. App. 513, 519, 364 S.E.2d
190, 193 (1988). The appropriate remedy for errors of law
committed by the [trial] court is either appeal or a timely
motion for relief under N.C.G.S. Sec. 1A-1, Rule 59(a)(8). Id.
Motions pursuant to Rule 60(b) may not be used as a substitute
for appeal. Jenkins v. Richmond Cty., 118 N.C. App. 166, 170,
454 S.E.2d 290, 293, disc. rev. denied, 340 N.C. 568, 460 S.E.2d
318 (1995). As with Rule 59 motions, the standard of review of a
trial court's denial of a Rule 60(b) motion is abuse of
discretion. Sink v. Easter, 288 N.C. 183, 198, 217 S.E.2d 532,
541 (1975).
Again, defendant has failed to demonstrate that the
trial court abused its discretion in denying defendant's Rule
60(b) motion. Therefore, we affirm the Court of Appeals on this
issue.
[3] Having found no abuse of discretion in the trial
court's denial of defendant's Rule 59 and Rule 60 motions, thequestion then becomes whether defendant's notice of appeal from
the entry of partial summary judgment was timely filed. As
discussed below, we conclude that, as required by Rule of
Appellate Procedure 3(c), defendant timely filed notice of appeal
with respect to the order granting partial summary judgment and
the final equitable distribution judgment. Thus, this Court may
review these underlying orders for errors of law.
We turn then to the timeliness of defendant's notice of
appeal from the partial summary judgment order and the equitable
distribution judgment.
The Court of Appeals concluded that defendant failed
to timely perfect his appeal of the three domestic violence
protective orders and summary judgment under Rule 3(c). Davis
v. Davis, 166 N.C. App. 516, 603 S.E.2d 585, 2004 WL 2238759, at
*3 (Oct. 5, 2004) (No. COA03-1657) (unpublished), citing N.C. R.
App. P. 3(c). As noted above, review of the domestic violence
orders is not properly before us. As to defendant's appeal of
the partial summary judgment order, we hold that it was timely
filed.
The partial summary judgment order was interlocutory
and was, therefore, subject to appeal following entry of the
final equitable distribution judgment. An interlocutory order
is one made during the pendency of an action, which does not
dispose of the case, but leaves it for further action by the
trial court in order to settle and determine the entire
controversy. Veazey v. City of Durham, 231 N.C. 357, 362, 57
S.E.2d 377, 381 (1950). In the present case the 11 March 2003partial summary judgment order dealt only with a portion of the
property that was eventually to be allocated following a hearing
on plaintiff's claim for equitable distribution. The parties and
the trial court undoubtedly knew that further action related to
the parties' other assets would be needed. Until the trial
court's final distribution order, defendant could not know how,
or if, the real property in question would be valued when the
parties' assets were distributed.
Generally, a party cannot immediately appeal from an
interlocutory order unless failure to grant immediate review
would affect[] a substantial right pursuant to N.C.G.S.
sections 1-277 and 7A-27(d).
A party may appeal an interlocutory order
under two circumstances. First, the trial
court may certify that there is no just
reason to delay the appeal after it enters a
final judgment as to fewer than all of the
claims or parties in an action. N.C.G.S. §
1A-1, Rule 54(b) (1990). Second, a party may
appeal an interlocutory order that affects
some substantial right claimed by the
appellant and will work an injury to him if
not corrected before an appeal from the final
judgment.
Dep't of Transp. v. Rowe, 351 N.C. 172, 174-75, 521 S.E.2d 707,
709 (1999) (quoting Veazey, 231 N.C. at 362, 57 S.E.2d at 381);
see also Pelican Watch v. U.S. Fire Ins. Co., 323 N.C. 700, 702,
375 S.E.2d 161, 162 (1989).
This Court has acknowledged that the 'substantial
right' test for appealability of interlocutory orders is more
easily stated than applied. It is usually necessary to resolve
the question in each case by considering the particular facts of
that case and the procedural context . . . . Waters v.Qualified Pers., Inc., 294 N.C. 200, 208, 240 S.E.2d 338, 343
(1978). Under the facts and in the procedural context of this
case, we conclude that neither party had a substantial right in
jeopardy that necessitated immediate appeal of the partial
summary judgment. Any immediate appeal of the partial summary
judgment would have been premature since a full accounting and
division of the parties' assets was still pending before the
trial court.
Moreover, even where a party is entitled to an
interlocutory appeal based on a substantial right, that party may
appeal but is not required to do so. Dep't of Transp. v. Rowe,
351 N.C. at 176, 521 S.E.2d at 710. The reason for these rules
is to prevent fragmentary, premature and unnecessary appeals by
permitting the trial divisions to have done with a case fully and
finally before it is presented to the appellate division.
Waters, 294 N.C. at 207, 240 S.E.2d at 343.
Defendant's appeal of the partial summary judgment
after the trial court's entry of the equitable distribution
judgment was consistent with the policy of promoting judicial
economy. See Harrell v. Harrell, 253 N.C. 758, 761, 117 S.E.2d
728, 730 (1961). Since a substantial right was not at stake,
defendant properly waited until after the trial court's final
judgment before filing his appeal.
[4] For these reasons we conclude that defendant's
notice of appeal from the partial summary judgment and the
equitable distribution judgment was timely. Defendant's Rule 59
motion to set aside prior orders was filed within ten days ofentry of the final equitable distribution judgment, and the
notice of appeal was filed within thirty days of the trial
court's order denying that motion. See N.C. R. App. P. 3(c)(3).
Although defendant gave notice of appeal from the
equitable distribution judgment, the Court of Appeals reviewed
the judgment only in conjunction with its review of the trial
court's denial of defendant's Rule 59 motion. Appellate review
of a denial of a Rule 59 motion for a new trial is distinct from
review of the underlying judgment or order upon which such a
motion may be based. See Von Ramm v. Von Ramm, 99 N.C. App. 153,
156, 392 S.E.2d 422, 424 (1990). Like a Rule 60 motion, a Rule
59 motion is not a substitute for an appeal. An aggrieved party
is not required to file a Rule 59 motion to preserve the right to
appeal, but upon timely motion under Rule 59, the thirty day
period for taking an appeal is tolled until an order disposing of
the motion is entered. N.C. R. App. P. 3(c)(3). Thus, in
addition to obtaining review of the denial of a Rule 59 motion,
an aggrieved party who gives proper and timely notice of appeal
from the underlying ruling may have the underlying judgment or
order reviewed on appeal.
The Court of Appeals stated that it could see no
reason why the trial court's findings of distribution factors and
subsequent equal distribution should be disturbed. Davis, 2004
WL 2238759, at *3. We disagree.
Based on the plain language of the equitable
distribution statute, the two tracts of real property dealt within the partial summary judgment on 11 March 2003 should have been
considered marital property. Marital property is defined as
all real and personal property acquired by
either spouse or both spouses during the
course of the marriage and before the date of
the separation of the parties, and presently
owned, except property determined to be
separate property or divisible property in
accordance with subdivision (2) or (4) of
this subsection. . . . It is presumed that
all property acquired after the date of
marriage and before the date of separation is
marital property except property which is
separate property under subdivision (2) of
this subsection. This presumption may be
rebutted by the greater weight of the
evidence.
N.C.G.S. § 50-20(b)(1) (2005). As the Court of Appeals stated in
Sharp v. Sharp: G.S. 50-20(a) effectively provides for the
'freezing' of the marital estate as of the date of the parties'
separation. Marital assets, distributed thereafter, are valued
as of that date. Sharp v. Sharp, 84 N.C. App. 128, 130, 351
S.E.2d 799, 800 (1987). On the date of separation, the property
in question was owned by plaintiff and defendant as tenants by
the entirety and was, thus, marital property.
Section 50-20(c) requires that the trial court make an
equal division by using net value of marital property and net
value of divisible property unless the court determines that an
equal division is not equitable. N.C.G.S. § 50-20(c) (2005).
Furthermore, N.C.G.S. § 50-20(j) states that the court shall
make written findings of fact that support the determination that
the marital property and divisible property has been equitably
divided. Id. § 50-20(j) (2005). In this case the trial court
decided that an equal division was equitable, but the court's 20August 2003 final equitable distribution judgment does not
disclose what value, if any, was placed on the disputed tracts of
real property.
[T]o enter a proper equitable distribution
judgment, prior to distributing the assets
the trial court must classify and value all
property owned by the parties at the date of
separation. And in doing all these things
the court must be specific and detailed
enough to enable a reviewing court to
determine what was done and its correctness.
Dalgewicz v. Dalgewicz, 167 N.C. App. 412, 422, 606 S.E.2d 164,
171 (2004) (quoting Carr v. Carr, 92 N.C. App. 378, 379, 374
S.E.2d 426, 427 (1988)); see also Stanley v. Stanley, 118 N.C.
App. 311, 314, 454 S.E.2d 701, 703-04 (1995).
In Beroth v. Beroth, even though the plaintiff executed
six quitclaim deeds in favor of the defendant approximately a
year before the parties' separation, effectively dissolving the
tenancy by the entirety in those properties, the trial court
nevertheless correctly held that the property involved was not
removed from the ambit of the Equitable Distribution Act.
Beroth v. Beroth, 87 N.C. App. 93, 94, 359 S.E.2d 512, 513, disc.
rev. denied, 321 N.C. 296, 362 S.E.2d 778 (1987), disapproved on
other grounds by Armstrong v. Armstrong, 322 N.C. 396, 368 S.E.2d
595 (1988). In the instant case the tenancy by the entirety was
not dissolved until after the date of separation.
Plaintiff argues that the two tracts of land were given
to her as gifts and that, pursuant to the partial summary
judgment, defendant has no right, title, or interest in the
property. However, the pertinent statute precisely states that
property acquired by gift from the other spouse during thecourse of the marriage shall be considered separate property only
if such an intention is stated in the conveyance. N.C.G.S. §
50-20(b)(2) (2005). Both deeds at issue were worded thusly:
This deed is executed for the purpose of
conveying the Grantor's one-half (1/2)
undivided interest in the above described
premises to the Grantee, pursuant to N.C.G.S.
[§] 39-13.3(c). The Grantor waives and
quitclaims any right, title and interest in
the above described premises by reason of his
marriage with the Grantee, and waives any and
all rights he may have to claim an interest
in the above described property, should the
Grantee die before the parties hereto have
obtained a legal divorce.
This language does not indicate that plaintiff initially received
the properties as a gift nor do the deeds expressly convey a
gift. The record contains no evidence that the properties were a
gift from defendant to plaintiff, and the trial court did not
find the conveyances to be a gift.
We cannot determine whether the properties recorded in
Deed Book 862, Pages 341 and 342 of the Wilkes County Registry
were properly classified, valued, and distributed or whether the
trial court properly valued and took into consideration the
parties' separate estates when determining that an equal
distribution of the marital property was equitable. Therefore,
we reverse the decision of the Court of Appeals as to the 11
March 2003 summary judgment and the 20 August 2003 equitable
distribution judgment and remand those matters to the Court of
Appeals for further remand to the trial court for proceedings
consistent with both N.C.G.S. § 50-20 and this opinion.
AFFIRMED IN PART; REVERSED AND REMANDED IN PART;
DISCRETIONARY REVIEW IMPROVIDENTLY ALLOWED IN PART. Justice TIMMONS-GOODSON did not participate in the
consideration or decision of this case.
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