Reeder v. Carter

• Decision Date: 02 April 2013
• Docket Number: No. COA12–1084.,COA12–1084.
• Citation: 740 S.E.2d 913
• Court: North Carolina Court of Appeals
• Parties: Crystal REEDER, Plaintiff, v. Brian D. CARTER, Defendant.

740 S.E.2d 913

Crystal REEDER, Plaintiff,

v.Brian D. CARTER, Defendant.

No. COA12–1084.

Court of Appeals of North Carolina.

April 2, 2013.

Appeal by plaintiff from orders entered 20 February 2012 and 24 February 2012 by Judge Robert M. Wilkins in Randolph County District Court. Heard in the Court of Appeals 30 January 2013.

Bell and Browne, P.A., Asheboro, by Charles T. Browne, for plaintiff-appellant.

No brief was submitted for defendant-appellee.

HUNTER, JR., ROBERT N., Judge.

Crystal Y. Reeder (“Plaintiff”) appeals from orders entered 20 February 2012 and 24 February 2012 in Randolph County District Court. The 20 February 2012 order: (i) denied her motion for judgment notwithstanding the verdict; (ii) denied her motion to include specific findings of fact in the trial court's order; and (iii) denied her motion for a new trial. The 24 February 2012 order: (i) denied her claim for specific performance; (ii) granted her claims for damages for unpaid child support, loan payment reimbursement, and attorney's fees; and (iii) denied her claim for unpaid mortgage payments. Upon review, we affirm.

I. Facts & Procedural History

Plaintiff married Brian David Carter (“Defendant”) on 31 December 2002. The couple has two minor children born during the marriage. Plaintiff and Defendant separated on 1 June 2008 and divorced on 5 January 2010.

On 15 September 2009, Plaintiff and Defendant executed a separation agreement and property settlement (the “Separation Agreement”). The Separation Agreement gave Plaintiff custody of the two children. Additionally, it required Defendant to pay: (i) $1,200 per month in child support, starting on 1 October 2009; (ii) the taxes, insurance and monthly mortgage payments for the couple's former residence; and (iii) a $56,000 debt owed to Robert Ferguson, Inc. (the “Ferguson Debt”). The Separation Agreement specified that Plaintiff would pay any other extraneous household expenses. It also contained a provision stating:

[e]ither party shall have the right to compel the performance of provisions of this agreement by suing for specific performance in the Courts where jurisdiction of the parties and subject matter exists. Both parties acknowledge that neither party has a plain, speedy, or adequate legal remedy to compel compliance with the provisions of this agreement; that this agreement is fair and equitable to both parties and that an order of specific performance enforceable by contempt is an appropriate remedy for a breach by either party.

Nothing in the record indicates the Separation Agreement was incorporated into the 5 January 2010 divorce decree.

On 22 December 2010, Plaintiff filed a complaint in Randolph County District Court alleging Defendant breached the Separation Agreement. Specifically, she contended Defendant had failed to pay: (i) $23,000 in mortgage payments; ¹ (ii) $12,000 in child support; ² and (iii) $56,000 for the Ferguson Debt.³ The complaint sought: (i) specific performance; (ii) damages of $23,000 for the mortgage payments; (iii) damages for all child support arrearages; and (iv) attorney's fees. Defendant did not file an answer.

The case first came on for hearing during the 13 June 2011 Session of Randolph County District Court's Family Court Division. During the hearing, Plaintiff admitted that Defendant had paid her household expenses despite her obligation under the Separation Agreement. She also acknowledged that Defendant had recently filed for bankruptcy.

On 3 August 2011, the trial court e-mailed both parties with its proposed ruling. With regard to specific performance, it stated Plaintiff had the burden of proving: (i) the remedy at law is inadequate; (ii) the obligee has performed her obligation; and (iii) the obligor has the ability to perform. Based on these requirements, the trial court indicated it would deny Plaintiff's claim for specific performance. It also asked Defendant's counsel to draft the corresponding order. On 22 August 2011, Defendant's counsel submitted a draft order, but Plaintiff objected.

On 24 August 2011, Plaintiff filed: (i) a motion for judgment notwithstanding the verdict (N.C. R. Civ. P. 50(b)); (ii) a motion to include certain findings of fact in the final order (N.C. R. Civ. P. 52); and (iii) a motion for a new trial (N.C. R. Civ. P. 59(a)(8) and 59(a)(9)).⁴ In her Rule 50(b) motion, Plaintiff also referenced the trial court's denial of her motion for directed verdict; however, Plaintiff never moved for a directed verdict at the 13 June 2011 hearing. Defendant filed a response on 19 October 2011. The trial court held a motion hearing on 1 November 2011.

On 20 February 2012, the trial court denied Plaintiff's motions. Specifically, it determined the motions for (i) specific findings of fact (N.C. R. Civ. P. 52(b)) and (ii) new trial (N.C. R. Civ. P. 59) were premature because the trial court had not yet entered an order or judgment. The trial court's order further described how Rule 50(b) was the improper method to test evidentiary sufficiency in bench trials; instead, Plaintiff should have sought involuntary dismissal under North Carolina Rule of Civil Procedure 41(b).

On 24 February 2012, the trial court issued a final order: (i) denying Plaintiff's claim for specific performance; (ii) granting Plaintiff damages of $22,950 for unpaid child support; (iii) granting Plaintiff damages of $4,333.33 for Defendant's failure to pay the Ferguson Debt; (iv) granting Plaintiff attorney's fees of $832.50; and (v) denying and dismissing Plaintiff's claim of $23,000 for unpaid mortgage payments.

On 2 March 2012, Plaintiff again filed a motion to: (i) set aside the trial court's 20 February 2012 denial of her previous motions (N.C. R. Civ. P. 60(b)); and (ii) grant the requests in her 24 August 2011 motions (N.C. R. Civ. P. 52(b) and 59). On 20 March 2012, while Plaintiff's 2 March 2012 motions were pending, she filed timely written notice of appeal of the trial court's 20 February 2012 and 24 February 2012 orders.

II. Jurisdiction & Standard of Review

A. Jurisdiction

This Court has jurisdiction to hear the instant case pursuant to N.C. Gen.Stat. § 7A–27(c) (2011). Additionally, our jurisdiction is not affected by the pending 2 March 2011 motions under North Carolina Rules of Civil Procedure 52(b), 59, and 60.

According to our Rules of Appellate Procedure, a party must file and serve notice of appeal “within thirty days after entry of judgment.” N.C. R.App. P. 3(c)(1). Additionally,

if a timely motion is made by any party for relief under Rules 50(b), 52(b) or 59 of the Rules of Civil Procedure, the thirty day period for taking appeal is tolled as to all parties until entry of an order disposing of the motion and then runs as to each party from the date of entry of the order or its untimely service upon the party.

N.C. R.App. P. 3(c)(3). Thus, although “[m]otions entered pursuant to Rule 60 do not toll the time for filing a notice of appeal,” Wallis v. Cambron, 194 N.C.App. 190, 193, 670 S.E.2d 239, 241 (2008), Plaintiff's Rule 52(b) and Rule 59 motions do toll the time for appeal. N.C. R.App. P. 3(c)(3). However, Plaintiff may still appeal the 24 February 2012 final order within thirty days of its filing. See generally Lovallo v. Sabato, –––N.C.App. ––––, 715 S.E.2d 909 (2011).

In Lovallo, a defendant appealed a final order despite pending Rule 52(b), 59, and 60 motions. Id. at ––––, 715 S.E.2d at 910. There, the defendant appealed more than thirty days after the final order, but before the trial court decided the Rule 52(b), 59, and 60 motions. Id. In Lovallo, we held the defendant did not file a timely appeal. Id. at ––––, 715 S.E.2d at 912. We further determined defendant could have pursued two alternatives for timely appeal: (i) the defendant could have appealed the final order within thirty days of its filing; or (ii) the defendant could have allowed the trial court to decide the Rule 52(b) and 59 motions and then appeal both the final order and the motions rulings. Id. at ––––, 715 S.E.2d at 911–12. In the instant case, Plaintiff pursued the first route offered in Lovallo by timely appealing the 24 February 2012 final order within thirty days of its filing.⁵

B. Standard of Review

“In reviewing a trial judge's findings of fact, we are ‘strictly limited to determining whether the trial judge's underlying findings of fact are supported by competent evidence, in which event they are conclusively binding on appeal, and whether those factual findings in turn support the judge's ultimate conclusions of law.’ ” State v. Williams, 362 N.C. 628, 632, 669 S.E.2d 290, 294 (2008) (quoting State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982)); see also Sisk v. Transylvania Cmty. Hosp., Inc., 364 N.C. 172, 179, 695 S.E.2d 429, 434 (2010) (“ ‘[F]indings of fact made by the trial judge are conclusive on appeal if supported by competent evidence, even if ... there is evidence to the contrary.’ ” (quoting Tillman v. Commercial Credit Loans, Inc., 362 N.C. 93, 100–01, 655 S.E.2d 362, 369 (2008)) (alteration in original)).

“Conclusions of law are reviewed de novo and are subject to full review.” State v. Biber, 365 N.C. 162, 168, 712 S.E.2d 874, 878 (2011); see also Carolina Power & Light Co. v. City of Asheville, 358 N.C. 512, 517, 597 S.E.2d 717, 721 (2004) (“Conclusions of law drawn by the trial court from its findings of fact are reviewable de novo on appeal.”). “ ‘Under a de novo review, the court considers the matter anew and freely substitutes its own judgment’ for that of the lower tribunal.” Williams, 362 N.C. at 632–33, 669 S.E.2d at 294 (quoting In re Greens of Pine Glen Ltd., 356 N.C. 642, 647, 576 S.E.2d 316, 319 (2003)).

III. Analysis

On appeal, Plaintiff argues the trial court erred by denying her claim for specific performance. Upon review, we affirm the trial court's order.

In North Carolina, “[a] marital separation agreement is generally subject to the same rules of law with respect to its enforcement as any...