Dalgewicz v. Dalgewicz
| Decision Date | 21 December 2004 |
| Docket Number | No. COA03-1641.,COA03-1641. |
| Citation | 606 S.E.2d 164,167 NC App. 412 |
| Court | North Carolina Court of Appeals |
| Parties | Lisa K. DALGEWICZ (Hearten), Plaintiff, v. Edward J. DALGEWICZ, Defendant. |
The McDonald Law Office, P.A., by Diane K. McDonald, Charlotte, for plaintiff-appellee.
James, McElroy & Diehl, P.A., by William K. Diehl, Jr., and Preston O. Odom, III, Asheville, for defendant-appellant. TIMMONS-GOODSON, Judge.
Edward J. Dalgewicz ("defendant") appeals from a judgment of equitable distribution and orders for sanctions and attorney's fees in favor of Lisa K. Dalgewicz ("plaintiff"). For the reasons discussed herein, we affirm in part and reverse and remand in part.
The facts and procedural history pertinent to the instant appeal are as follows: Defendant and plaintiff were married on 5 April 1985. The couple resided in Asheville, North Carolina, until their separation in the spring of 2001. Following their separation, defendant moved to Florida and plaintiff moved to California.
On 23 April 2001, plaintiff filed a complaint against defendant, requesting that the trial court award her custody of the couple's two children, child support, post-separation support, alimony, equitable distribution, a restraining order, and attorney's fees. On 13 June 2001, defendant filed an answer and counterclaim, as well as interrogatories and requests for production. In his answer and counterclaim, defendant requested that the trial court deny plaintiff equitable distribution, grant defendant custody of the children, and order plaintiff to pay child support.
On 12 July 2001, plaintiff and defendant entered into a consent order whereby the couple's Merrill Lynch account was assigned to plaintiff for the payment of marital debt. The consent order required that defendant pay plaintiff $2,107.00 in child support, and it continued a 10 May 2001 order preventing defendant's waste of his bonus payments.
On 1 August 2001, defendant's counsel filed a motion to withdraw, which the trial court granted in an order filed 23 August 2001. On 17 August 2001, defendant and plaintiff entered into a second consent order, whereby defendant agreed to "borrow the money to pay the deficiency produced by the forced sale of [the residence located at] 9 Hickory Ridge[,]" and to hold plaintiff "harmless for losses she may incur for his failure to make full payment of the loan." Following the dismissal of his counsel on 23 August 2001, defendant retained counsel in both North Carolina and Florida.
On 10 October 2001, plaintiff filed an equitable distribution affidavit, which she later amended on 10 December 2001 and 14 January 2003. On 30 October 2001, the trial court entered an order directing defendant to file an equitable distribution affidavit and directing both parties to attend a conference to resolve the issues of the case within sixty days of the completion of discovery. On 8 November 2001, the trial court granted defendant's motion for extension of time to file his equitable distribution affidavit, and on 21 November 2001, defendant filed the equitable distribution affidavit
On 4 December 2001, the trial court held a hearing to determine whether to award plaintiff post-separation support and attorney's fees. While defendant was not present at the hearing, he was represented by counsel. In an order filed 14 December 2001, the trial court found that plaintiff was a dependent spouse and that defendant earned a $250,000.00 base salary plus $500,000.00 in bonuses. The trial court also found that, pursuant to defendant's employment contract with Associated Packaging Enterprises, Inc. ("APEI"), defendant would receive $1.1 million to $1.3 million in non-reoccurring bonuses. The trial court concluded that plaintiff was entitled to a writ of possession to the home and property located at 268 Racquet Club Road,1 and the trial court ordered defendant to "pay the monthly mortgage payment on the property and make any and all arrears current within sixty days." The trial court further ordered that defendant pay temporary post-separation support to plaintiff in the amount of $8,000.00 per month, as well as reasonable attorney's fees related to the action.
On 14 January 2002, the trial court ordered that the residence located at 268 Racquet Club Road be listed for sale within two weeks for "$1.1 million, the estimated value according to [plaintiff]," and that all outstanding discovery be produced within thirty days. On 24 January 2002, the trial court issued an order finding as fact that defendant had not made a spousal support payment required by the 14 December 2001 order, and that defendant had "neither made the mortgage current, nor made any mortgage payments as they c[a]me due." Based upon these findings of fact, the trial court concluded that defendant was in contempt of court, and the trial court ordered defendant to appear for sentencing in district court on 11 February 2002. The trial court further ordered that plaintiff was entitled to attachment of defendant's income from his contract with APEI, and the trial court directed defendant to be prepared at sentencing "to [s]how [c]ause why said remedy should not be instituted against him."
On 8 March 2002, defendant's North Carolina counsel filed a motion to withdraw, citing defendant's refusal to compensate counsel for services rendered in the matter. The trial court granted counsel's motion on 25 April 2002. Following the motion to withdraw, defendant filed an emergency motion to continue depositions scheduled for 18 March 2002 and 19 March 2002, citing the requirement that defendant's Florida counsel associate with local counsel in the matter. On 18 March 2002, defendant gave notice of appearance for new North Carolina counsel, whose services were limited to "the sole purpose of assisting non-North Carolina licensed attorney[.]"
On 18 March 2002, the trial court held a hearing on all pending issues. Present at the hearing were plaintiff, her counsel, defendant's Florida counsel, and defendant's new North Carolina counsel. Following the hearing, the trial court issued an order for the arrest of defendant for failure to appear at the 18 March 2002 hearing. The trial court continued the previous requirement that defendant make current the mortgage on 268 Racquet Club Road and the previous attachments on defendant's APEI paycheck.
On 23 October 2002, both defendant's North Carolina counsel and Florida counsel moved the trial court to withdraw from representation. Defendant's Florida counsel requested that "all further pleadings, notices, and correspondence" be directed to defendant via the following address:
EDWARD J. DALGEWICZ c/o APEI, 900 South U.S. Highway One, Suite 207, Jupiter, FL 33477
On 30 October 2002, the trial court granted defendant's remaining counsel's motions to withdraw. The same day, plaintiff filed a motion for sanctions against defendant, alleging that defendant had "never appeared" for a hearing in the matter, had failed to appear at the court-ordered mediation, and had failed to appropriately respond to discovery. Plaintiff advised the trial court that defendant's counsel had recently moved the trial court to withdraw, and that "it is anticipated by [plaintiff] that [defendant] will fail to show for the equitable distribution trial." Plaintiff requested that the trial court award plaintiff costs and attorney's fees and dismiss defendant's claim for equitable distribution. Plaintiff's counsel certified that a copy of the motion was served upon defendant's counsel via facsimile.
On 14 January 2003, the trial court filed an "Order For Sanctions" in the case, in which the trial court found as fact that defendant failed to participate in court-ordered mediation, failed to appear at any hearing in the matter, was thus held in contempt, and had several orders for his arrest issued against him. The trial court further found that an equitable distribution trial had been scheduled and defendant had failed to appear at the hearing regarding sanctions. Based upon these findings of fact, the trial court concluded that plaintiff "is entitled to be awarded the sanctions against [defendant] as set out in her Motion filed with this Court[,]" and the trial court ordered that defendant's equitable distribution claim be dismissed.
On 31 March 2003, the trial court entered judgment on plaintiff's equitable distribution claim. The trial court first noted that defendant was not present at the 14 January 2003 hearing, nor was an "attorney or other agent on his behalf." The trial court then entered the following pertinent findings of fact:
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