Walker v. Walker

• Decision Date: 15 May 2001
• Docket Number: No. COA00-101.,COA00-101.
• Citation: 143 NC App. 414,546 S.E.2d 625
• Parties: Donna L. WALKER, Plaintiff, v. Maurice L. WALKER, Defendant.
• Court: North Carolina Court of Appeals

546 S.E.2d 625

143 NC App. 414

Donna L. WALKER, Plaintiff, v. Maurice L. WALKER, Defendant.

No. COA00-101.

Court of Appeals of North Carolina.

May 15, 2001.

Morgenstern & Bonuomo, P.L.L.C., by Barbara R. Morgenstern, Greensboro, for plaintiff-appellee.

Hatfield & Hatfield, by Kathryn K. Hatfield, Greensboro, for defendant-appellant.

TYSON, Judge.

Plaintiff and defendant were married on 26 January 1979. On 16 April 1994, the parties separated when an emergency domestic violence protective order removed defendant from the marital home.

On 18 April 1994, plaintiff brought this action, and sought inter alia, custody of the parties' two minor children, child support, alimony, domestic violence protective relief and attorney's fees. On 20 June 1994, defendant filed an answer and counterclaim, and sought inter alia, custody, restraining orders and an interim distribution. On 18 July 1994, defendant amended his answer and counterclaim, and added a prayer for divorce from bed and board. On 17 July 1995, a judgment of absolute divorce was entered. On 22 February 1996, an equitable distribution judgment was entered. The issues of permanent alimony and attorney's fees remained pending for adjudication.

On 14 December 1998, defendant filed a second motion to amend his answer, and sought to add the defense of plaintiff's alleged pre-divorce adultery. This motion was heard and denied at the pretrial conference on 17 May 1999.

From 17 through 20 May 1999, a jury trial was held on the issue of permanent alimony. The jury heard testimony regarding alleged verbal abuse, physical abuse, drug use, heavy drinking and accusations of adultery by both parties.

Defendant was self-employed, as the one hundred percent shareholder of GRS, Inc. ("GRS"). Evidence was introduced that defendant earned $107,755.00 in 1998, $65,500.00 in 1997, and $55,500.00 in 1996 as an employee of GRS. GRS purchased a $32,000.00 vehicle for defendant's use after the separation. GRS paid for defendants' health insurance, all expenses related to his vehicle, and some of his personal entertainment expenses. Defendant also purchased a $50,000.00 boat, and contributed $8,400.00 per year to his retirement account. Defendant's second wife was paid $1,646.00 per month by GRS, and drove a vehicle paid for by GRS.

Plaintiff was responsible primarily for homemaking and child rearing duties during the marriage. Plaintiff also assisted with the clerical and administrative duties at GRS during the marriage. From the parties' separation during April 1994 until May 1997, both minor children resided with plaintiff. In May 1997, the parties' older child began residing with defendant. Plaintiff testified that she was employed part-time, but was seeking full-time employment. Plaintiff also testified that she incurred approximately $15,000.00 in debt to pay for expenses after the separation, and that the debt on the marital home was in foreclosure.

Defendant orally moved for directed verdict at the conclusion of plaintiff's evidence. This motion was denied. The jury found that defendant had not committed indignities toward plaintiff, but had constructively abandoned her. The jury further found that plaintiff had not committed either indignities toward, or abandonment of defendant. Defendant orally moved for judgment notwithstanding the verdict. The motion was also denied.

The trial court entered an order and judgment on 30 August 1999, nunc pro tunc 20 May 1999, requiring defendant to pay child support arrearages, prospective child support, alimony and counsel fees. Defendant appeals.

Defendant appeals six issues to this Court: (1) whether the trial court abused its discretion in denying defendant's second motion to amend his answer; (2) whether the trial court erred by sustaining plaintiff's objection to a question posed to a defense witness; (3) whether the trial court improperly instructed the jury on the issue of constructive abandonment; (4) whether the trial court erred in denying defendant's motion for a directed verdict or judgment notwithstanding the verdict; (5) whether the trial court erred in awarding plaintiff $1,800.00 per month alimony; and (6) whether the trial court erred in ordering defendant to pay plaintiff's attorney's fees in the amount of $7,500.00.

1. Amendment to the Answer

Defendant argues that the trial court erred by denying his motion to amend his answer and counterclaim to allege plaintiff's alleged pre-divorce adultery. Under the law applicable to this case, former N.C.G.S. § 50-16.6, plaintiff's pre-divorce adultery would be a bar to her alimony claim.

N.C.G.S. § 1A-1, Rule 15(a) (1999) provides, in pertinent part:

Amendments. A party may amend his pleadings once as a matter of course at any time before a responsive pleading is served... Otherwise a party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires.

In the present case, defendant's second amendment was allowable only by leave of court. A motion to amend the pleadings is addressed to the trial judge's sound discretion. Coffey v. Coffey, 94 N.C.App. 717, 722, 381 S.E.2d 467, 471, disc. review allowed, 325 N.C. 705, 388 S.E.2d 450 (1989), disc. review improvidently allowed, 326 N.C. 586, 391 S.E.2d 40 (1990). The trial judge's decision will not be disturbed on appeal absent showing an abuse of discretion. Henry v. Deen, 310 N.C. 75, 82, 310 S.E.2d 326, 331 (1984).

"[O]utright refusal to grant the leave (to amend) without any justifying reason appearing for the denial is not an exercise of discretion; it is merely abuse of that discretion...." Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222, 226 (1962). Factors to be considered by the trial judge in deciding whether to grant or deny a motion to amend include delay, bad faith, undue prejudice, and the futility of amendment. See Patrick v. Williams, 102 N.C.App. 355, 360, 402 S.E.2d 452, 455 (1991) (trial court did not err in denying defendants' motion to amend their answer where defendants filed the motion almost a full year after filing the answer and after both parties had conducted extensive discovery); Hudspeth v. Bunzey, 35 N.C.App. 231, 241 S.E.2d 119 (1978) (trial judge did not abuse his discretion in denying defendant's motion to amend after defendant waited 16 months to file the motion to amend); House Healers Restorations, Inc. v. Ball, 112 N.C.App. 783, 437 S.E.2d 383 (1993) (trial judge did not abuse discretion in denying plaintiff's motion to amend where plaintiffs waited one year and three months after filing their complaint).

In the present case, over four years had passed since the filing of the first amendment to defendant's answer. In denying the motion to amend, the trial judge found:

Absent there being any direct evidence of adultery, I'm going to deny the motion. It's been too many years to do an information and opportunity evidentiary hearing from 1994.

The record in this case shows that: (1) defendant amended his answer once, (2) that over four years had passed since the original answer and first amendment was filed, and (3) that extensive discovery and numerous court proceedings had occurred in the interim. We hold that the trial judge did not abuse his discretion in denying defendant's second motion to amend his answer that was heard on the eve of trial.

2. Questioning of Mr. Gerringer

Defendant next assigns as error the decision of the trial court to sustain plaintiff's objection to a question posed to a witness, Roger Gerringer. Defendant cites no authority to support his position that sustaining this objection was error. Thus this assignment of error is deemed abandoned. See N.C.R. App. P. 28(b)(5) (assignments of error "in support of which no ... authority [is] cited, will be taken as abandoned."). See Also Metric Constructors, Inc. v. Industrial Risk Insurers, 102 N.C.App. 59, 64, 401 S.E.2d 126, 129,

aff'd,

330 N.C. 439, 410 S.E.2d 392 (1991) ("[b]ecause the appellee cites no authority for this argument, it is deemed abandoned.").

3. Jury Instruction on "Constructive Abandonment"

Defendant argues that the trial court committed error when it charged the jury on the issue of constructive abandonment. After the jury was charged, defendant objected to the omission of language from the pattern jury instruction on the issue of burden of proof. The trial court promptly remedied any error. However, the record reveals defendant made no further objection to the trial court concerning the constructive abandonment instruction to the jury. Rule 10(b)(2) of the North Carolina Rules of Appellate Procedure provides:

Jury instructions; Findings and Conclusions of Judge. A party may not assign as error any portion of the jury charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict, stating distinctly that to which he objects and the grounds of his objection; provided, that opportunity was given to the party to make the objection out of the hearing of the jury, and, on request of any party, out of the presence of the jury.

Defendant did not preserve this issue for appeal. See State v. Howie, 116 N.C.App. 609, 612, 448 S.E.2d 867, 869 (1994)

(pursuant to N.C.R. App. P. 10(b)(2), failure to object to a jury charge normally precludes review of the issue). This assignment of error is overruled.

4. Denial of Defendant's Motions for Directed Verdict and Judgment Notwithstanding the Verdict

Defendant's fourth assignment of error is the trial court's denial of defendant's Rule 50(a) and (b) motions for directed verdict and judgment notwithstanding the verdict. Defendant made an oral motion at the conclusion of plaintiff's evidence that the case be dismissed due to insufficient evidence to support a claim for permanent alimony. The trial court denied the motion.

Upon return of a jury verdict in favor of plaintiff, defendant made the following oral...