Romulus v. Romulus

• Decision Date: 20 September 2011
• Docket Number: No. COA10–1593.,COA10–1593.
• Citation: 715 S.E.2d 889
• Court: North Carolina Court of Appeals
• Parties: Rebecca W. ROMULUS, Plaintiff,v.John M. ROMULUS, Defendant.

715 S.E.2d 889

Rebecca W. ROMULUS, Plaintiff,

v.John M. ROMULUS, Defendant.

No. COA10–1593.

Court of Appeals of North Carolina.

Sept. 20, 2011.

Appeal by defendant from orders entered 23 July 2010, 3 September 2010, and 15 September 2010 by Judge Jeffrey Evan Noecker in District Court, New Hanover County. Heard in the Court of Appeals 8 June 2011.

Jonathan McGirt, Raleigh, for plaintiff-appellee.

Wyrick Robbins Yates & Ponton LLP, Raleigh, by K. Edward Greene and Tobias S. Hampson, for defendant-appellant.

STROUD, Judge.

This case is a companion case to Romulus v. Romulus, ––– N.C.App. ––––, 715 S.E.2d 308 (2011), in which we considered defendant's appeal from the equitable distribution order entered on 4 March 2010. In this appeal, defendant contends that the trial court erred by its orders entered to enforce payment of the distributive award as provided in the equitable distribution order. For the following reasons, we vacate the trial court's orders for lack of subject matter jurisdiction and remand this matter to the trial court for further proceedings.

I. Background

On 4 March 2010, the trial court entered an equitable distribution order which ordered that defendant pay plaintiff a distributive award of $629,840.00, payable over a period of seven years in 84 monthly installments of $7,498.10. The first payment on the distributive award was due on 10 January 2010. ¹ On 25 March 2010, plaintiff filed a motion to show cause why defendant should not be held in contempt for failure to comply with the equitable distribution order by making the monthly payments as due, and on the same day, the trial court issued an order for defendant to appear and show cause why he should not be held in contempt. On 31 March 2010, defendant filed notice of appeal from the 4 March 2010 equitable distribution order.

On 8 April 2010, defendant filed a motion to dismiss plaintiff's motion to show cause and the order to show cause, alleging that proceedings to enforce the judgment could not be held prior to expiration of the time for giving of notice of appeal, and time for appeal did not expire until 5 April 2010. Defendant also alleged that the trial court lacked jurisdiction to enter orders for contempt while an appeal was pending. On 25 May 2010, the trial court held a hearing upon plaintiff's motion for contempt and defendant's motion to dismiss the motion, but the order from this hearing was not “reduced to writing, signed, and entered” until 23 July 2010. At the 25 May 2010 hearing, the trial court “noted that proceedings in the case by writ of execution and levy were not prohibited by law and opined on how such proceedings might occur.”

On 1 June 2010, plaintiff filed an affidavit alleging that defendant had not paid any of the distributive award monthly payments due thus far, with a total past due of $37,490.50. On 17 June 2010, the New Hanover County Clerk of Superior Court issued a writ of execution for the entire amount of the distributive award, $645,639.50; on 9 July 2010, the New Hanover County Sheriff seized defendant's 1994 Chevrolet Suburban and 2007 Triton Sea Hunt 220 boat. On 16 July 2010, defendant filed a motion for a temporary restraining order and injunction seeking to have the writ of execution withdrawn, alleging in part that the execution was done in contravention to the equitable distribution order which provided for monthly payments, with the total award not due and payable in full until December 2016.

On 23 July 2010, the trial court entered two orders. One order memorialized the trial court's rulings at the 25 May 2010 hearing, which addressed plaintiff's motion to show cause and defendant's motion to dismiss. The trial court denied defendant's request for relief under Rule 62(a) of the North Carolina Rules of Civil Procedure but allowed defendant's request for relief under Section 1–294 of the North Carolina General Statutes and provided that “Plaintiff's Motion to Show Cause and the Court's Order to Show Cause shall be held in abeyance.”

On 23 July 2010, the trial court also entered an order based upon a “hearing in chambers” held on 21 July 2010 on defendant's motion for temporary restraining order and to withdraw the writ of execution. The trial court ordered as follows:

1. The Defendant's Motion to Withdraw the Writ of Execution is denied, pending further hearing.

2. Defendant is entitled to a temporary restraining order in this matter.

3. The Sheriff of New Hanover County and the Clerk of Superior Court are hereby restrained from making any payment to the Plaintiff from any property seized or sold in this case pursuant to the Writ of Execution in excess of the amounts currently due and unpaid under the Equitable Distribution Judgment.

4. In order to determine said amounts, the Plaintiff is directed to regularly file Affidavits with the Clerk of Court in this case, as has already been done on at least one occasion, updating the amounts currently due and payable under the Equitable Distribution Judgment. Any such Affidavits are to be served on the Defendant. If there is a dispute as to amounts due and unpaid, the Court will on appropriate motion schedule a hearing to make the determination after hearing from all parties.

5. Any property already seized by the Sheriff pursuant to the Writ of Execution, including but not limited to a 1994 Chevrolet Suburban and a 2007 boat, may remain in the Sheriff's possession for sale and/or other proceedings pursuant to statute.

6. This matter shall be calendared for hearing as to whether Defendant is entitled to further injunctive or other relief on August 10, 2010 in Courtroom # 301 at 9:30 am or as soon as the matter can be reached.

On 3 August 2010, plaintiff filed a motion to have amounts alleged due in the amount of $52,486.70 reduced to judgment. On the same date, defendant filed a motion to alter or amend the 23 July 2010 order on the motion to dismiss and order to show cause pursuant to Rule 59, alleging that two conclusions of law in that order were in error. On 5 August 2010, defendant filed a motion for return of his property which was seized by the sheriff and a response to plaintiff's 3 August 2010 motion to have the past-due payments reduced to judgment.

On 3 September 2010, the trial court entered a “Decree on Pending Motions” which denied defendant's Rule 59 motion, dissolved the temporary restraining order, denied defendant's motion for return of property, and directed the clerk of superior court “to immediately docket a judgment against the Defendant and in favor of the Plaintiff in the principal amount of $52,486.70, which is reflective of amounts due and unpaid through August 9, 2010.” The order provided that interest would accrue on “each unpaid payment at the legal rate.” The order further provided that “an amended Writ of Execution shall immediately issue” in the amount of $52,486.70 and the sheriff was directed to retain the property seized from defendant “for further proceedings[.]” The trial court also ordered that defendant was entitled to “a period of twenty (20) days from entry of this order to post a sufficient undertaking in compliance with Section 1–289, in an amount of $150,000.00, such amount being deemed sufficient by the court to protect the parties pending the determination of the appeal.”

On 15 September 2010, another copy of the 3 September 2010 order was filed with the clerk of superior court (“the modified order”). This order is identical to the 3 September 2010 order except for several handwritten changes to the order, initialed by “JEN[,]” presumably the Honorable Jeffrey Evan Noecker, the judge who also entered the prior orders in this matter. One change is a correction to a typographical error which is not at issue here; the other is a handwritten addition which states that “[t]he accrued interest through August 9, 2010 is $1,354.15.”

On 21 September 2010, defendant filed notice of appeal from the 3 September 2010 order, the 15 September 2010 modified order, the 23 July 2010 order on defendant's motion to withdraw the writ of execution and temporary restraining order, and the 23 July 2010 order on motion to dismiss and order to show cause.

II. Standard of review

Defendant raises two arguments regarding the authority of the trial court to enter order enforcing the distributive award. Defendant first argues that the “trial court had no statutory authority to enter orders permitting plaintiff to seek to have alleged unpaid periodic distributive award payments reduced to judgment or to enter judgment on the amounts alleged to be due,” based upon N.C. Gen.Stat. § 50–20(e) and N.C. Gen.Stat. § 1–294. Defendant's second argument is that the trial court had no subject matter jurisdiction to enter orders enforcing the distributive award as both parties had appealed from the equitable distribution order. On both of defendant's arguments, our standard of review is de novo, as both issues present questions of law. Because defendant's first argument presents a question of “statutory interpretation, full review is appropriate, and ‘the conclusions of law ‘are reviewable de novo.’ ' ” Mark IV Beverage, Inc. v. Molson Breweries USA, Inc., 129 N.C.App. 476, 480, 500 S.E.2d 439, 442 (quoting N.C. Reinsurance Facility v. N.C. Insurance Guaranty Assn., 67 N.C.App. 359, 362, 313 S.E.2d 253, 256 (1984)), disc. review denied, 349 N.C. 231, 515 S.E.2d 705 (1998). Defendant's N.C. Gen.Stat. § 1A–1, Rule 59 motion also presents “a question of law or legal inference” which is reviewed de novo. Kinsey v. Spann, 139 N.C.App. 370, 372, 533 S.E.2d 487, 490 (2000). Also, “[t]he standard of review for lack of subject matter jurisdiction is de novo.” Keith v. Wallerich, 201 N.C.App. 550, 554, 687 S.E.2d 299, 302 (2009) (citation omitted).

III. Subject matter jurisdiction

We will address defendant's second argument first, because if the trial court did not have subject matter jurisdiction to consider plaintiff's motions...