Plomaritis v. Plomaritis

Decision Date07 August 2012
Docket NumberNo. COA11–1554.,COA11–1554.
Citation730 S.E.2d 784
PartiesMaureen PLOMARITIS (Ward), Plaintiff, v. Titus PLOMARITIS, Jr., Defendant.
CourtNorth Carolina Court of Appeals

OPINION TEXT STARTS HERE

Appeal by defendant from judgment entered 14 April 2008, and orders entered 9 April 2008, 30 April 2010, and 30 November 2010 by Judge Joseph E. Turner in District Court, Guilford County. Heard in the Court of Appeals 24 May 2012.

Hill Evans Jordan & Beatty, PLLC, Greensboro, by Elaine Hedrick Ashley, for plaintiff-appellee.

Robert N. Weckworth, Jr., Greensboro, for defendant-appellant.

STROUD, Judge.

“It is a truism that justice delayed is frequently justice denied.” Rice v. Rigsby, 259 N.C. 506, 519, 131 S.E.2d 469, 478 (1963). The complaint in this matter was filed in 2003, the equitable distribution trial was held in 2006, and, by this opinion, we unfortunately must reverse the equitable distribution order and remand for a new trial. It is particularly troubling that this case has been so protracted as equitable distribution is one of the few types of claims which has time goals for completion of various steps of the case set forth by statute. SeeN.C. Gen.Stat. § 50–21 (2006). Titus Plomaritis, Jr. (defendant) appeals from (1) the trial court's 9 April 2008 order setting aside the trial court's 19 October 2006 pre-trial order; (2) the 14 April 2008 equitable distribution judgment; (3) the 30 April 2010 order granting in part and denying in part defendant's motions for reconsideration and to amend the 14 April 2008 equitable distribution judgment and the 9 April 2008 order; and (4) the 30 November 2010 order granting in part and denying in part defendant's motion for reconsideration of the 30 April 2010 order. For the following reasons, we reverse and remand for further proceedings consistent with this opinion.

I. Procedural history

On or about 4 December 2003, Maureen Plomaritis (plaintiff) filed a complaint against defendant, raising claims for custody of the minor children, child support, alimony, and equitable distribution. On or about 15 March 2004, defendant filed an answer, raising several defenses, including a motion for a change of venue, and a counterclaim for equitable distribution. On 26 March 2004, plaintiff filed a motion to strike defendant's answer and counterclaim, arguing that defendant's pleadings “were not filed timely[.] On 9 November 2004, the trial court denied defendant's motion for change of venue and allowed defendant's answer and counterclaim. Upon motion by plaintiff, the trial court entered an order awarding plaintiff an interim distribution of “fifty percent” of defendant's retirement account.

On 2 June 2005, plaintiff filed a motion for temporary restraining order and preliminary injunction, alleging that the parties' marital residence was destroyed by fire on 30 November 2003; that an insurance proceeds check was issued and deposited in an account to pay off the outstanding mortgage on that property; that the bank issued one check for the remaining balance to defendant; that defendant deposited it into his bank account; and that this money was marital property. Plaintiff requested that defendant be enjoined from “dissipating, wasting or disposing of the marital property of the parties [.] On 2 June 2005, the trial court granted plaintiff's motion for a temporary restraining order and scheduled a hearing for a preliminary injunction on 9 June 2005, but, following the hearing, the trial court entered an order denying plaintiff's request for a preliminary injunction and dismissing her temporary restraining order. On 12 October 2006, plaintiff filed a motion in limine requesting that the trial court prohibit defendant from introducing evidence that either party was involved in the fire that destroyed their martial residence on 30 November 2003 as evidence surrounding this event was “opinion, speculative, and irrelevant” to the equitable distribution matter. The trial court granted this motion.

On 19 October 2006, the trial court entered an equitable distribution pre-trial order in which the parties made numerous stipulations regarding values, classifications, and distribution of specific items of marital property; agreed to the identity and value of divisible property and martial debts; set forth the parties' contentions for unequal distribution; and limited the issues in dispute to disagreements between the parties regarding the value, distribution, or classification of other specific properties of the marital estate. The trial court held an equitable distribution trial on 19, 20, 24, 25, 26, and 27 October 2006. At the conclusion of the trial, the trial court made no ruling but took the matter “under advisement[,] to announce a decision at a later date.

Approximately 18 months after the conclusion of the equitable distribution trial, on 9 April 2008, the trial court, on its own motion and without any prior notice to the parties, entered an order setting aside the 19 October 2006 pre-trial order. On 14 April 2008, the trial court entered an equitable distribution judgment, deciding not only the issues which the parties had disagreed upon in the pre-trial order, but also various issues as to which the parties had stipulated in the pre-trial order which the trial court had recently set aside.

On 21 April 2008, defendant filed a motion for reconsideration and to amend the trial court's order setting aside the pre-trial order and for the court to open the judgment and take additional testimony and amend its judgment. On 24 April 2008, defendant filed a motion for a mistrial, a new trial and for reconsideration of the trial court's 14 April 2008 equitable distribution judgment, alleging that there was insufficient evidence presented at the trial to justify several of the trial court's findings of fact and conclusions of law.1 A hearing on defendant's motions was continued from 6 October 2008 until January 2009. On 21 April 2009, defendant filed motions to continue and for leave to amend his pending motions for reconsideration, and for a new trial to include new requests for relief based on allegations that plaintiff was the prime suspect in a criminal investigation surrounding the arson of their marital residence on 30 November 2003. Defendant also alleged that plaintiff and Rocky Manning, a witness at the equitable distribution trial, were suspected co-conspirators in two other separate arson attempts of defendant's new home in June and December of 2007, which occurred after the trial but before entry of the trial court's equitable distribution judgment.

On 29 June 2009, the trial court entered an order granting defendant's motion to leave to amend his original motion for reconsideration, explaining that evidence regarding “a concert of personal interest between the plaintiff and plaintiff's witnesses ... could have had a significant impact on the valuation of the golf course” and the final ruling on equitable distribution. On 29 June 2009, defendant filed an amended motion for new trial/reconsideration of judgment, including allegations surrounding the arson investigations.Following witness depositions in August, September, and October of 2009, a hearing on defendant's motion for reconsideration was held on 28 October 2009, where new evidence regarding the criminal investigations was taken. The trial court took the matter under advisement and continued the matter for further hearing if necessary, but made no ruling. On 12 April 2010, the trial court entered an order making a partial ruling, denying defendant's motion to set aside the judgment and order and for a new trial based on evidence presented on 28 October 2009. The trial court allowed counsel for both parties to present further argument but not to introduce any additional evidence.2 On 30 April 2010, the trial court entered an order denying defendant's 21 April 2008 motion regarding the trial court's decision to set aside the pre-trial order; allowing in part defendant's 24 April 2008 motion, amending findings of fact in the 14 April 2008 judgment of equitable distribution regarding two items of marital property which resulted in the modification to the distributive award to plaintiff; and denying the remaining requests in defendant's motion to set aside the equitable distribution judgment and for a new trial.

On 10 May 2010, defendant filed a motion for reconsideration of the 30 April 2010 order. Following a hearing on 30 June 2010, the trial court entered an order on 30 November 2010 allowing in part and denying in part defendant's 10 May 2010 motion for reconsideration of the order filed on 30 April 2010. Pursuant to N.C. Gen.Stat. § 1A–1, Rule 52, the trial court amended the findings of fact in the 30 April 2010 order to state that the alleged misconduct of plaintiff, even if true, would not have altered the equitable distribution judgment and did not constitute newly discovered evidence pursuant to N.C. Gen.Stat. § 1A–1, Rules 59 and 60. The trial court denied the remaining requests of defendant's motion. On 28 December 2010, defendant filed notices of appeal from (1) the trial court's 9 April 2008 order; (2) the 14 April 2008 judgment of equitable distribution; (3) the 30 April 2010 order; and (4) the 30 November 2010 order. On appeal defendant contends (1) that the trial court erred in its 9 August 2008 order in setting aside the 19 October 2006 pre-trial order; (2) that the 18 month delay from the date of trial to the entry of the original judgment on 14 April 2008 and the 31 month delay from the original judgment to the entry of the final amended judgment of 29 November 2010 amounted to a violation of defendant's due process rights; (3) that the trial court erred in not properly considering whether evidence should be re-opened, whether additional findings of fact should be made, or whether there should be a new trial; and (4) the trial court erred by not considering testimony and evidence in this case and disregarded testimony which...

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  • Richter v. Richter
    • United States
    • North Carolina Court of Appeals
    • 2 d2 Junho d2 2020
    ...of the trial without giving the parties "any notice or opportunity to respond to the modification." Plomaritis v. Plomaritis , 222 N.C. App. 94, 107, 730 S.E.2d 784, 793 (2012). ...
  • Spears v. Spears, COA14–1133.
    • United States
    • North Carolina Court of Appeals
    • 2 d2 Fevereiro d2 2016
    ...until a final order is entered after a hearing of plaintiff's post-trial motion. See Plomaritis v. Plomaritis, 222 N.C.App. 94, 110–11, 730 S.E.2d 784, 795 (2012) ("As the 18 month delay was more than a de minimis delay and was prejudicial under the facts of this case, it would require a ne......
  • Denny v. Denny
    • United States
    • North Carolina Court of Appeals
    • 21 d2 Julho d2 2015
    ...“ ‘misrepresentations as to material facts, undue influence, collusion, duress, fraud, and inadvertence.’ “ Plomaritis v. Plomaritis,222 N.C.App. 94, 107, 730 S.E.2d 784, 792 (2012) (quoting Lowery v. Locklear Constr.,132 N.C.App. 510, 514, 512 S.E.2d 477, 479 (1999) ). Here, defendant has ......
  • Spears v. Spears, COA14–1133.
    • United States
    • North Carolina Court of Appeals
    • 2 d2 Fevereiro d2 2016
    ...until a final order is entered after a hearing of plaintiff's post-trial motion. See Plomaritis v. Plomaritis, 222 N.C.App. 94, 110–11, 730 S.E.2d 784, 795 (2012) ("As the 18 month delay was more than a de minimis delay and was prejudicial under the facts of this case, it would require a ne......
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