Morris v. Gray

Decision Date06 February 2007
Docket NumberNo. COA06-234.,COA06-234.
CourtNorth Carolina Court of Appeals
PartiesMelinda Lee MORRIS, Formally Melinda Morris Gray, Plaintiff v. Jerry William GRAY, Defendant.

WYNN, Judge.

Unless a material change of circumstances in the situations of the parties so warrants, one trial judge cannot modify, overrule, or change the judgment of another, equivalent trial judge.1 Here, the record shows no findings indicating a material change of circumstances between the parties to necessitate modifying an earlier Qualified Domestic Relations Order (QDRO) entered by another District Court judge. Accordingly, we vacate the amended QDRO and remand for findings to support any necessary modifications to the earlier QDRO.

Defendant Jerry William Gray and Plaintiff Melinda Lee Morris married in 1982 and separated on 12 September 1998. The two subsequently divorced and resolved their claims for equitable distribution by consent in an order pursuant to memorandum of judgment, signed 22 September 2003. That order provided that Ms. Morris would receive "the marital portion of the U.S. Airways, Inc. Defined Benefit Plan (Annuity)," namely "Fifty percent (50%) of the coverture period from December 12, 1982 through September 12, 1998 (per formula established in Seifert v. Seifert) with gains and losses thereon." According to the parties' briefs to this Court, Mr. Gray was furloughed from his position with U.S. Airways following the entry of the equitable distribution order but prior to the entry of the QDRO required by the Employment Retirement Security Income Act (ERISA), 29 U.S.C. §§ 1001 et seq. (1999).

On 4 April 2005, District Court Judge Lynn Gullett entered a QDRO that assigned 48.9 percent of Mr. Gray's accrued benefit, determined as of 12 September 1998, to Ms. Morris. The QDRO entitled Ms. Morris to have payments "in any form permitted under the terms of the Plan, including a single life annuity" based on her life, "but not including any form of joint and survivor annuity." The QDRO also gave certain death benefits to Ms. Morris: (1) if Mr. Gray died before commencement of benefits to Ms. Morris, she would be deemed the "surviving spouse" for purposes of receiving fifty percent of death benefits payable to a surviving spouse, based on Mr. Gray's accrued benefits as of 12 September 1998; (2) if Mr. Gray died after commencement of benefits to Ms. Morris, she would receive no death benefits and her benefits would cease unless she had elected to receive the single life annuity based on her life; and, (3) the charge of providing death benefit coverage to Ms. Morris would be charged against the portion of Mr. Gray's accrued benefit assigned to Ms. Morris, namely, her 48.9 percent.

Neither party appealed the terms of the 4 April 2005 QDRO entered by Judge Gullett. Mr. Gray later filed for bankruptcy, as did U.S. Airways, Inc., which had its pension plan taken over and administered by the Pension Benefit Guaranty Corporation ("Pension Corporation"). In an order signed 9 September 2005 and entered 17 October 2005, Ms. Gray was given relief from the automatic stay of proceedings against Mr. Morris while he was in bankruptcy, allowing her to proceed with processing the QDRO through the Pension Corporation. After a hearing with no testimonial evidence and no transcript, District Court Judge Ted S. Royster entered a QDRO on 17 October 2005, modifying the terms of the 4 April 2005 QDRO; he then entered an amended version on 27 October 2005, removing provisions for a contingent alternate payee. Differences between the April QDRO and the October Amended QDRO included adding the Pension Corporation as the named trustee of the pension plan, as well as removing the prohibition against Ms. Morris receiving any joint and survivor annuity and changing the way in which either Ms. Morris's or Mr. Gray's death would affect the payment of benefits.

Mr. Gray timely appealed from the 27 October 2005 Amended QDRO, arguing that the trial court erred and abused its discretion by (I) conducting a hearing and entering an order which effectively overruled another District Court judge; (II) conducting a hearing in the absence of any motion being filed by a party; (III) failing to make any findings of fact and/or conclusions of law as to why the previous QDRO should be substantially modified; and, (IV) entering a new QDRO that gave Ms. Morris more than what had been agreed to in the parties' equitable distribution order and provided in an earlier QDRO.

At the outset, we note that Ms. Morris repeatedly refers to North Carolina Rule of Appellate Procedure 28(b)(6) in her brief, arguing that Mr. Gray has abandoned the majority of his arguments by failing to cite to supporting authority in his assignments of error to this Court. However, Ms. Morris misapplies Rule 28(b)(6), which concerns the contents of the appellant's brief to this Court, not the text of the assignments of error provided in the record. In his brief, Mr. Gray has indeed complied with Rule 28(b)(6) by presenting arguments to this Court which "contain citations of the authorities upon which the appellant relies." N.C. R.App. P. 28(b)(6) (2005); see also Coastal Plains Utils., Inc. v. New Hanover County, 166 N.C.App. 333, 350, 601 S.E.2d 915, 926 (2004) ("Our appellate rules require that arguments of appellants `contain citations of the authorities upon which the appellant relies.'").

Moreover, contrary to Ms. Morris's assertions, an appellant is specifically precluded by Rule 10(c)(1) from including argument in his assignments of error. See N.C. R.App. P. 10(c)(1) (2005) ("Each assignment of error shall, so far as practicable, be confined to a single issue of law, and shall state plainly, concisely, and without argumentation the legal basis upon which error is assigned.") (emphasis added). Indeed, "[a]n assignment of error is sufficient if it directs the attention of the appellate court to the particular error about which the question is made, with clear and specific record or transcript references." N.C. R.App. P. 10(c)(1). Accordingly, we decline to dismiss this appeal on technical grounds and instead reach the merits of Mr. Gray's claims.2

North Carolina has a well established rule that "`no appeal lies from one Superior Court judge to another; that one Superior Court judge may not correct another's errors of law; and that ordinarily one judge may not modify, overrule, or change the judgment of another Superior Court judge made in the same action.'" Madry v. Madry, 106 N.C.App. 34, 37-38, 415 S.E.2d 74, 77 (1992) (citing Smithwick v. Crutchfield, 87 N.C.App. 374, 376, 361 S.E.2d 111, 113 (1987) (quoting Calloway v. Ford Motor...

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