Robertson v. Robertson, No. COA06-1448 (N.C. App. 11/6/2007)
| Decision Date | 06 November 2007 |
| Docket Number | No. COA06-1448,COA06-1448 |
| Court | Court of Appeal of North Carolina (US) |
| Parties | THERESA BROWN ROBERTSON (now BROWN), Plaintiff, v. FLOYD VINCENT ROBERTSON, Defendant. |
Theodore M. Molitoris for plaintiff-appellee.
John J. Korzen for defendant-appellant.
This is defendant's second appeal arising out of the parties' equitable distribution hearing held 7 April 2004, which resulted in an equitable distribution judgment filed in Stokes County District Court on 15 June 2004. Defendant filed notice of appeal from that judgment on 12 July 2004 ("Robertson I"). On 20 June 2005, during the pendency of the appeal of Robertson I, the trial court entered an interim distribution order pursuant to N.C. Gen. Stat. § 50-20(i1). Robertson I was heard in this Court on 19 October 2005. On 6 December 2005, the equitable distribution judgment was vacated by this Court and remanded to the trial court "for entry of a new judgment, based upon the existing record, and containing further and appropriate findings of fact regarding the fair market value of the business." Robertson v. Robertson, 174 N.C. App. 784, 790, 625 S.E.2d 117, 121 (2005) (internal citations and quotations omitted). On remand of Robertson I, the trial court held a hearing on 13 April 2006, and entered an amended equitable distribution judgment on 2 May 2006.
Defendant appeals from both the 20 June 2005 interim order and the 2 May 2006 amended order. For the reasons stated below, we vacate the interim distribution order of 20 June 2005, but affirm the amended equitable distribution judgment of 2 May 2006.
The procedural and factual background up to the entry of the first equitable distribution judgment ("first judgment") on 15 June 2004 is set forth in Robertson I. The first judgment, inter alia, allocated the marital home to defendant but gave plaintiff a security interest in the home until defendant had paid $90,000 to plaintiff. Defendant subsequently failed to make monthly mortgage payments on the marital home, and it went into foreclosure.
On 11 January 2005, after entry of the first judgment and while Robertson I was on appeal, plaintiff filed a motion for contempt regarding defendant's failure to pay the sum of $50,000.00 on the equitable distribution distributive award and failure to make monthly mortgage payments on the marital home. In response, defendant made a voluntary payment to plaintiff of $18,099.11 on 24 February 2005. On 17 May 2005, also while Robertson I was on appeal, plaintiff filed another motion regarding defendant's failure to pay the sum of $50,000.00 on the distributive award and failure to make mortgage payments on the marital home. This motion, however, failed to make reference to any statute or rule under which plaintiff was seeking relief.1 The motion alleged that although the home was valued at $124,000.00 in the first judgment, it sold for $84,000.00 in the foreclosure sale, leaving net proceeds of approximately $20,000.00 after payment of the mortgage, court costs, and expenses. Plaintiff further alleged that the closing of the foreclosure sale was imminent and that the high bidder in the foreclosure assigned the bid to defendant's sister. Plaintiff alleged that defendant and his sister had both been convicted infederal court for failure to pay taxes and that they had "in the past worked closely together in illegal transactions involving tax payments." Plaintiff requested that "the Court issue an Exparte Order restraining the Defendant and attorney Curtis Howell [sic] from secreting, transferring, or disbursing foreclosure sale proceeds, and monies, if any, on deposit in the trust account or in the physical possession of said attorney" and that "the Court conduct a hearing and enter a permanent restraining order determining the appropriate division and transfer of these monies."
The trial court immediately entered an ex parte order upon plaintiff's 17 May 2005 motion, restraining disbursement of the foreclosure proceeds pending further hearing. On 6 June 2005 the trial court held a hearing on plaintiff's motion, with appearances of counsel for both parties. On 20 June 2005, the court entered the interim distribution order. The order contained the following findings of fact:
1. An Equitable Distribution Judgment was entered by the undersigned Judge Presiding June 9, 2004 [sic]. This Equitable Distribution Judgment required the Defendant to pay $50,000 forthwith and to make the monthly mortgage payments on the marital home. The Defendant has not made any of these payments, but has caused the marital home to be subject to a foreclosure proceeding in the Superior Court of Rockingham County, North Carolina, case number 04 SP 587.
2. This matter became [sic] before the Court on a Show Cause Motion February 24, 2005 and on that date, the Defendant made a voluntary payment to the Plaintiff in the amount of $18,099.11.
3. The marital home was found by this Court in the Equitable Distribution Judgment to have a fair market value of $124,000 and a first mortgage in the amount of $59,420 with a net value of $64,508.
4. The last and highest bidder at the foreclosure proceeding was William McCollum, who has assigned his bid to Joyce Robertson Adkins, the Defendant's sister. Rockingham County attorney, Curtis Howe, currently has in his trust account $84,000 deposited by Joyce R. Adkins and the foreclosure trustee is the Charlotte law firm, Kellum and Pettit, which is prepared to close this transaction.
5. While this matter is on appeal to the North Carolina Court of Appeals, the Trial Court has authority to grant an interim allocation of marital assets pursuant to General Statute 50-20 et. [sic] seq. and the Court does hereby allocate the net proceeds after satisfaction of the first mortgage and Court costs to be delivered by the trustee, Kellum and Pettit, directly to the Plaintiff, Theresa Brown, in its entirety, by payment through the office of Theodore M. Molitoris, 823 West Fifth Street, Winston-Salem, North Carolina 27101, counsel for the Plaintiff.
The trial court then made conclusions of law that it had "jurisdiction of the parties and the subject matter" of the proceeding, that the court was authorized by N.C. Gen. Stat. § 50-20 et seq. to make an "interim allocation of marital assets pending this appeal to the North Carolina Court of Appeals," and that there was no just reason for the court not to make "an interim allocation of the net sale proceeds of the marital home" to plaintiff. The trial court ordered the foreclosure trustee to pay the net foreclosure sales proceeds directly to plaintiff, through her attorney. Defendant now appeals from the interim order. On 6 December 2005, this Court filed Robertson I, vacating the first judgment and remanding the case to the trial court for further findings of fact regarding the valuation of the business. On remand, the trial court entered an amended equitable distribution judgment on 2 May 2006 ("second judgment"), from which defendant also now appeals.
Defendant argues that the district court erred by entering an interim distribution order while the prior appeal in this case was pending. Defendant contends that N.C. Gen. Stat. § 50-20(i1) (2005) does not allow entry of an interim order after a final equitable distribution judgment has been filed. Defendant further contends that when the appeal of the first judgment was filed, N.C. Gen. Stat § 1-294 deprived the district court of jurisdiction to issue further orders in the case. Plaintiff's brief did not address this argument at all.
"A judgment is void . . . when the issuing court has no jurisdiction over the parties or subject matter in question or has no authority to render the judgment entered." Burton v. Blanton, 107 N.C. App. 615, 616, 421 S.E.2d 381, 382. (1992). "As a general rule an appeal takes the case out of the jurisdiction of the trial court[.]" Carpenter v. Carpenter, 25 N.C. App. 307, 308, 212 S.E.2d 915, 916 (1975); N.C. Gen. Stat. § 1-294 (2005). However, a specific statute trumps the general rule and leaves jurisdiction with the trial court in the matter covered by the statute. In re Huber, 57 N.C. App. 453, 459, 291 S.E.2d 916, 920, disc. review denied and appeal dismissed, 306 N.C. 557, 294 S.E.2d 223 (1982); see, e.g., N.C. Gen. Stat. § 50-16.7(j) (). In the case sub judice, the trial court was deprived of jurisdiction by N.C. Gen. Stat. § 1-294, which absent an exception to the general rule, renders void the interim distribution order.
We next consider whether N.C. Gen. Stat. § 50-20(i1) confers jurisdiction on the district court to enter an interim distribution order during the pendency of an appeal of a final equitable distribution judgment. We conclude that it does not. N.C. Gen. Stat. § 50-20(i1), together with N.C. Gen. Stat. § 7A-244 (2005), confers subject matter jurisdiction on the district court to enter interim equitable distribution orders "at any time after an action for equitable distribution has been filed and prior to the final judgment of equitable distribution." N.C. Gen. Stat. § 50-20(i1). N.C. Gen. Stat. § 50-20(i1) does not thereby provide an exception allowing the district court subject matter jurisdiction to enter an interim order while the final judgment in the case is on appeal. In the case sub judice, the trial court entered the interim order after the final judgment in the case had been entered, and while an appeal was pending. The interim order was void for lack of subject matter jurisdiction when it was entered. Accordingly, we vacate the...
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