Dunevant v. Dunevant
| Decision Date | 06 February 2001 |
| Docket Number | No. COA99-1336.,COA99-1336. |
| Citation | 142 NC App. 169,542 S.E.2d 242 |
| Parties | William Lee DUNEVANT, Plaintiff, v. Elizabeth Ann Lewis DUNEVANT, Defendant. |
| Court | North Carolina Court of Appeals |
Farmer & Watlington, L.L.P., by R. Lee Farmer, Yanceyville, for plaintiff-appellant.
Ronnie P. King, P.A., by Ben S. Holloman, Jr., Roxboro, for defendant-appellee.
The administrator of the estate of William Lee Dunevant ("plaintiff") appeals from an order setting aside a divorce decree entered 17 September 1997 dissolving the marriage of plaintiff and Elizabeth Ann Lewis Dunevant ("defendant"). The relevant factual and procedural background is summarized as follows.
Plaintiff and defendant were married on or about 14 February 1979 in Danville, Virginia. No children were born of the marriage. On 29 July 1997, plaintiff filed a complaint for absolute divorce alleging that the parties had lived separate and apart since 3 May 1996. The complaint also asserted a claim for equitable distribution. Plaintiff had defendant personally served with the summons and a copy of the complaint on 1 August 1997. Defendant, however, filed no answer to the pleadings.
On 4 September 1997, plaintiff moved for summary judgment as to the issue of absolute divorce. On 5 September 1997, plaintiff filed a "Notice of Motion" with the Clerk of District Court, Caswell County, which notice was addressed to defendant and advised her that the motion for summary judgment would be heard on 17 September 1997. A copy of the notice was mailed to defendant. Defendant, nonetheless, did not receive the notice and failed to appear at the hearing.
Pursuant to plaintiff's motion, the trial court entered a judgment of absolute divorce on 17 September 1997. The judgment provided, in pertinent part, as follows:
FINDINGS OF FACT:
1. That this matter is an action for absolute divorce based on the separation of the Plaintiff and the Defendant for one (1) year.
2. That the Defendant was properly served on the 30th day of July, 1997 with Summons and a copy of the Complaint.
3. That the Defendant has not filed a request for a jury trial with the Clerk of Court.
4. That the action is at issue and properly called for trial.
5. That Plaintiff has filed a verified Complaint in this cause and Defendant has failed to respond.
BASED UPON THE FOREGOING FINDINGS OF FACT, the Court makes the following:
CONCLUSIONS OF LAW:
1. That the Plaintiff has been a resident of the State of North Carolina for more than six (6) months next preceding the institution of this action.
2. That the Plaintiff and the Defendant were duly married on or about the 14th day of February, 1979.
3. That there were no children born of the marriage of the parties. 4. That the Plaintiff and the Defendant separated with the intent to live permanently separate and apart and have lived separate and apart from each other for more than one (1) year next preceding the institution of this action.
5. That there exists no genuine issue of material fact and Plaintiff is entitled to judgment as a matter of law.
WHEREFORE, the Court concludes that it has jurisdiction over the subject matter and the parties, and that Plaintiff's Motion for Summary Judgment should be allowed.
IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED:
1. That the bonds of matrimony heretofore existing between Plaintiff and Defendant be, and they are hereby dissolved, and the Plaintiff is granted an absolute divorce from the Defendant.
2. That the issue of equitable distribution of martial property is retained by this Court for further adjudication.
Defendant received notification of the divorce decree by mail and, on 21 October 1997, moved to set aside the judgment as void. The court conducted a hearing on the motion, during which the parties presented conflicting evidence as to when they began living separate and apart. On 14 May 1998, prior to a ruling on the motion, plaintiff died. On 3 February 1999, plaintiff's attorney moved to dismiss defendant's motion for lack of jurisdiction over the person of plaintiff. Defendant, in response, moved to substitute the administrator of plaintiff's estate as plaintiff in the proceeding and moved, once again, to set aside the divorce decree. As the basis for the latter motion, defendant asserted that the divorce decree contained no findings of fact (1) that the parties had lived separate and apart for one year, or (2) that either of the parties had resided in the State for a period of six months.
The court allowed defendant's motion for substitution and entered an order finding that "the Parties did not separate with the intent to remain separate and apart" on 3 May 1996. The court, therefore, concluded that the averment in plaintiff's complaint relating to the date of separation perpetrated a fraud on the court and thereby deprived the court of jurisdiction over the matter. Additionally, the court concluded that "[t]he Divorce Judgment [was] irregular on its face due to deficiencies in the factual findings on the issues of one-year's separation and North Carolina residency." Consequently, the court set aside the divorce decree, declaring it to be null and void. From the order of the trial court, plaintiff, through his representative, filed timely notice of appeal.
Plaintiff argues first that the trial court erred in abrogating the divorce decree based on the finding that the decree "contained no findings of fact regarding the issues of separation for one year and residency in North Carolina." Plaintiff's argument has merit.
N.C. Gen.Stat. § 50-10(a),(d) (1999).
"Findings of fact are statements of what happened in space and time." State ex rel. Utilities Comm. v. Eddleman, 320 N.C. 344, 351, 358 S.E.2d 339, 346 (1987). Pursuant to Rule 52(a)(1) of our Rules of Civil Procedure, a trial judge sitting without a jury must "find the facts specially and state separately its conclusions of law thereon and direct entry of the appropriate judgment." N.C.R. Civ. P. 52(a)(1). This notwithstanding, a pronouncement by the trial court which does not require the employment of legal principles will be treated as a finding of fact, regardless of how it is denominated in the court's order. See Gainey v. N.C. Dept. of Justice, 121 N.C.App. 253, 257, 465 S.E.2d 36, 40 (1996)
(footnote 1 explaining that Court would treat "`conclusion' as a `finding of fact' because its determination [did] not involve the application of legal principles"); cf. Coble v. Coble, 300 N.C. 708, 713, 268 S.E.2d 185, 189 (1980)(viewing "finding" as "conclusion of law," because it that stated legal basis upon which ruling was made); Gibbs v. Wright, 17 N.C.App. 495, 498, 195 S.E.2d 40, 43 (1973)( that "findings of fact" which "[were] actually more in the nature of conclusions of law" were properly treated as such, and that "it [was] immaterial that they were incorrectly included under the heading of `findings of fact' in the judgment.")
In the order vacating the judgment of absolute divorce, the trial court found that the judgment lacked factual findings pertaining to the issues of one year's separation and North Carolina residency. Granted, the judgment does not set forth any such statements under the heading "Findings of Fact." The following declarations, however, appear under the "Conclusions of Law":
268 S.E.2d at 190). To be sure, the findings of fact appearing throughout the divorce decree, taken together, furnish the justification for the court's conclusion "that it ha[d] jurisdiction over the subject matter and the parties, and that Plaintiff's Motion for Summary Judgment [on the issue of absolute divorce] should be allowed."
A party may obtain relief from a final judgment pursuant to Rule 60(b)(4) of the Rules of Civil Procedure, if she can show that...
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