Davis v. Davis

• Decision Date: 30 June 2006
• Docket Number: No. 571PA04.,571PA04.
• Citation: 631 S.E.2d 114
• Court: North Carolina Supreme Court
• Parties: Debra M. DAVIS v. John Bernard DAVIS.

Page 114

631 S.E.2d 114

Debra M. DAVIS v. John Bernard DAVIS.

No. 571PA04.

Supreme Court of North Carolina.

June 30, 2006.

COPYRIGHT MATERIAL OMITTED

On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous, unpublished decision of the Court of Appeals, 166 N.C.App. 516, 603 S.E.2d 585 (2004), affirming a judgment dated 20 August 2003 and an order dated 20 November 2003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, North Wilkesboro, for plaintiff-appellee.

Theodore M. Molitoris, Winston-Salem and Michelle D. Reingold, Clemmons, 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 distribution judgment. 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 11 March 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 the trial court did not abuse its discretion in denying defendant's Rule 59 and Rule 60 motions.

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.

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 verdict and 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...