Howell v. Howell, 211A87
| Decision Date | 05 November 1987 |
| Docket Number | No. 211A87,211A87 |
| Citation | 321 N.C. 87,361 S.E.2d 585 |
| Court | North Carolina Supreme Court |
| Parties | Earl Dean HOWELL v. Joan Hurley HOWELL. |
Ferree, Cunningham & Gray, P.A. by George G. Cunningham, Wilkesboro, for plaintiff-appellant.
McElwee, McElwee, Cannon & Warden by William H. McElwee, III, North Wilkesboro, for defendant-appellee.
The sole issue on appeal is whether the trial court erred in granting defendant's motion to be "relieved of the effect" of a divorce judgment to the extent that the judgment barred her claim for equitable distribution. We conclude that the trial court erred in granting the motion and, therefore, reverse the Court of Appeals' decision to the contrary.
At trial, the parties stipulated that Mr. and Ms. Howell were married on 22 December 1953. During their marriage the couple acquired various items of property, including stock of unspecified value, registered in husband's name and a vested interest in husband's retirement benefits valued at $11,289.63. The couple separated on 21 April 1983.
At the motion hearing, Ms. Howell's evidence tended to show that she hired an Ashe County attorney, John Siskind, to represent her interests with reference to support, property settlement and divorce. On 2 May 1983 Mr. Siskind filed, on Ms. Howell's behalf, an action in Ashe County District Court. In this action Ms. Howell alleged, among other things, that she feared Mr. Howell would "try to change the nature or location of marital property so as to hinder her claims for equitable distribution." She prayed for temporary alimony, a writ of possession for the marital home and injunctive relief "protecting the marital property pending equitable distribution." The District Court in Ashe County issued an order granting Ms. Howell temporary alimony, a writ of possession for the marital home, and a temporary restraining order prohibiting transfer by either party of any "marital property."
In late summer of 1983 Ms. Howell learned that retirement benefits were considered marital property and were subject to equitable distribution. She then consulted Mr. Siskind about her husband's retirement benefits. She testified that Mr. Siskind assured her that these retirement benefits and the stock would be included in the equitable distribution settlement.
In the summer of 1984 Mr. Howell filed this action in Wilkes County for absolute divorce based upon one year's separation. Upon Mr. Siskind's advice, Ms. Howell accepted service of the complaint and summons and brought them to Mr. Siskind's office. He told Ms. Howell that if she did not choose to contest the divorce she did not have to do anything further. Ms. Howell testified that Mr. Siskind failed to tell her the effect of a final divorce judgment on her right to equitable distribution. 1
This effect is clearly set out in N.C.G.S. § 50-11 (1984). That statute, entitled "Effects of absolute divorce," provides in pertinent part as follows:
(e) An absolute divorce obtained within this State shall destroy the right of a spouse to an equitable distribution of the marital property under G.S. § 50-20 unless the right is asserted prior to judgment of absolute divorce.
Under this section, a judgment of absolute divorce destroys the right to equitable distribution "unless the right is asserted prior to judgment of absolute divorce."
Ms. Howell did not respond to the complaint in her husband's divorce action, and on 28 August 1984 the District Court in Wilkes County entered judgment granting Mr. Howell an absolute divorce.
Two days after this divorce judgment was entered, Mr. Siskind filed a new and separate claim on Ms. Howell's behalf in Ashe County District Court seeking equitable distribution. This complaint alleged that a judgment of absolute divorce had been entered in Wilkes County.
On 9 October 1984 the Ashe County District Court dismissed Ms. Howell's claim for equitable distribution pursuant to Rule 12(b)(6) for its failure to state a claim upon which relief could be granted.
Meanwhile, on 28 September 1984, the parties entered into a consent judgment regarding Ms. Howell's 2 May 1984 Ashe County action. The consent judgment purported to settle "all pending matters and claims" which existed between the parties. 2
On 11 December 1985 defendant filed a motion in the instant case pursuant to N.C.G.S. § 1A-1, Rule 60(b)(6), asking that she be "relieved of the effect of the divorce judgment entered in this cause on August 21, 1984 to the extent that it now bars her from asserting a claim for equitable distribution of marital property against her former husband, Earl Dean Howell." The district court granted Ms. Howell's motion, and the Court of Appeals affirmed, holding that the relief requested was permitted under Rule 60(b)(6).
Rule 60(b)(6) provides in pertinent part as follows:
(b) Mistakes; inadvertence; excusable neglect; newly discovered evidence; fraud, etc.--On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons:
....
(6) Any other reason justifying relief from the operation of the judgment.
The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after judgment, order, or proceeding was entered or taken....
Rule 60(b)(6) is equitable in nature and authorizes the trial court to exercise its discretion in granting or denying the relief sought. Kennedy v. Starr, 62 N.C.App. 182, 302 S.E.2d 497, disc. rev. denied, 309 N.C. 321, 307 S.E.2d 164 (1983). The rule empowers the court to set aside or modify a final judgment, order or proceeding whenever such action is necessary to do justice under the circumstances. Norton v. Sawyer, 30 N.C.App. 420, 227 S.E.2d 148, disc. rev. denied, 291 N.C. 176, 229 S.E.2d 689 (1976). The test for whether a judgment, order or proceeding should be...
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...to Rule 60(b)(6) without showing that: (1) extraordinary circumstances exist, and (2) justice demands relief. Howell v. Howell , 321 N.C. 87, 91, 361 S.E.2d 585, 588 (1987). Additionally, to obtain relief under Rule 60(b)(6), the moving party must show that it has a meritorious defense. In ......
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...extraordinary circumstances must exist, and (2) there must be a showing that justice demands that relief be granted." Howell v. Howell, 321 N.C. 87, 91, 361 S.E.2d 585, 588 (1987) (citations omitted)).[10] 161. Defendants first argue that G.S. § 57D-6-04(d) must be read as a strict limitati......
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...circumstances must exist, and (2) there must be a showing that justice demands that relief be granted." Howell v. Howell, 321 N.C. 87, 91, 361 S.E.2d 585, 588 (1987). Here, "extraordinary circumstances exist" and "justice demands" the judgment be modified. Id. The trial court ordered defend......
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