Green v. Green

NO. COA14-150

NORTH CAROLINA COURT OF APPEALS

Filed: 7 October 2014

MICHAEL L. GREEN,

Plaintiff,

v. Nash County

No. 09-CVD-2527

JANA M. GREEN,

Defendant.

Appeal by defendant from judgment entered 12 July 2013 by

Judge John J. Covolo in District Court, Nash County. Heard in

the Court of Appeals 12 August 2014.

Teresa DeLoatch Bryant, for plaintiff-appellee.

Judith K. Guibert, for defendant-appellant.

STROUD, Judge.

Defendant Estate of Jana M. Green1 appeals from a judgment

on equitable distribution entered by the District Court, Nash

County on 12 July 2013. On appeal, defendant argues, inter

alia, that the trial court erred by imposing sanctions against

her which decreed that she had “forfeited her right to file her

equitable distribution affidavit or any other documents or

1

Defendant died during the pendency of this appeal, on 7

February 2014, and by order of this Court her estate was

substituted as a party to this appeal. We will nevertheless

refer to the appellant as “defendant” in this opinion.

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matters pertaining to same and that the identification,

valuation, and classification of assets and debts as set forth

in the Plaintiff’s said affidavit shall be those that shall be

considered by the Court.” The record indicates that the order

which set a deadline of 4 December 2012 for the filing of

defendant’s equitable distribution affidavit was entered after 4

December 2012, on 10 December 2012, so that she had no notice of

the deadline until after it had passed. Due to the lack of

notice and other serious procedural and legal errors, we reverse

the order of 10 December 2012, the 19 December 2012 judgment,

and the 12 July 2013 judgment thereafter entered.

I. Background

Plaintiff and defendant were married in 1990 and separated

from one another on or about 15 October 2009. On 1 December

2009, plaintiff filed a complaint for divorce from bed and board

and equitable distribution. On 28 December 2009, attorney Larry

A. Manning obtained an extension of time for defendant to

answer, extending the time to 30 January 2009. Through

defendant’s counsel Mr. Manning, defendant filed her answer and

counterclaims for divorce from bed and board, post-separation

support, equitable distribution, and attorney’s fees on 2

February 2010. On 5 August 2010, plaintiff filed a request for

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production of documents regarding defendant’s counterclaim for

post-separation support, which had been served upon defendant,

through her counsel; on the same date, plaintiff also filed a

reply to defendant’s counterclaims, which was also served upon

defendant’s counsel. At this point, the record falls silent for

nearly two years.

The next document which appears in the supplement to the

record is a hand-written letter, dated 3 February 2012, from

defendant to the Nash County Clerk of Court, which states as

follows: “Please send any documents or order in this case to

[defendant’s name and an address in Indiana.] Mr. Larry Manning

has refused to notify or forward any court dates, motions,

orders in this case so I can have a chance to protect my right.”

The record does not contain a motion for withdrawal by Mr.

Manning, any order releasing him as the attorney of record for

defendant, nor any indication of why he disappeared from the

case.2

2

“An attorney at law is a sworn officer of the court with an

obligation to the public, as well as his clients, for the office

of attorney at law is indispensable to the administration of

justice. The attorney’s obligation crystallizes into one of

noblesse oblige. As between the attorney and his client the

relationship may ordinarily be dissolved in good faith at any

time, but before an attorney of record may be released from

litigation he must satisfy the court that he is justified in

withdrawing. The first requirement for his withdrawal is proof

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On 17 October 2012, the trial court entered the “Seventh

District Judge Designation on Equitable Distribution of

Property[;]” (“Judge Designation”) (original in all caps), this

document stated that “the parties hereby request designation of

John J. Covolo as the judge to determine the equitable

distribution claim.” Although the “Judge Designation” document

has blanks for the signatures of attorneys for both plaintiff

and defendant to agree to Judge Covolo, the document was signed

only by R. D. Kornegay, attorney for plaintiff; defendant’s

attorney’s signature line is blank. The “Judge Designation”

document also has a second section which states that “[t]he

parties are unable to agree upon designation of a Judge to

determine the equitable distribution issues. [(sic)] hereby

applies to the Court for designation of a Judge.” Plaintiff’s

attorney signed the second section of the “Judge Designation”

of timely notice to his client.” Smith v. Bryant, 264 N.C. 208,

211, 141 S.E.2d 303, 306 (1965) (citations and quotation marks

omitted). Rule 16 of North Carolina’s General Rules of Practice

for the Superior and District Courts, entitled “Withdrawal of

Appearance[,]” provides that “No attorney who has entered an

appearance in any civil action shall withdraw his appearance, or

have it stricken from the record, except on order of the court.

Once a client has employed an attorney who has entered a formal

appearance, the attorney may not withdraw or abandon the case

without (1) justifiable cause, (2) reasonable notice to the

client, and (3) the permission of the court.” North Carolina’s

General Rules of Practice for the Superior and District Courts,

rule 16.

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document as well, so it is unclear whether the parties had

agreed on the designation or if they did not agree. In any

event, the Chief Judge of District Court in Nash County, William

C. Farris, signed the “Judge Designation” document, designating

Judge Covolo to determine the equitable distribution claim.

On 22 October 2012, nearly three years after plaintiff

filed his equitable distribution complaint, he filed his

equitable distribution affidavit (“ED Affidavit”).3 There is no

certificate of service indicating that plaintiff’s ED Affidavit

was served upon defendant or any counsel for defendant.4 On the

3

North Carolina General Statute § 50-21(a) requires that

“[w]ithin 90 days after service of a claim for equitable

distribution, the party who first asserts the claim shall

prepare and serve upon the opposing party an equitable

distribution inventory affidavit listing all property claimed by

the party to be marital property and all property claimed by the

party to be separate property, and the estimated date-of-

separation fair market value of each item of marital and

separate property.” N.C. Gen. Stat. § 50-21(a) (2009).

Furthermore, in District Court in Nash County, North Carolina

Rule 4 of the “Rules for Trial and Settlement Procedures in

Equitable Distribution and Other Family Financial Cases[,]”

(“Local Rules”) (original in all caps), the ED Affidavit

“required by G.S. 50-21(a) shall be prepared using the form of

affidavit attached to the Rules. Unless extended for good cause

by the court, statutory time limits on the exchange of properly

prepared affidavits are to be strictly observed. There shall be

a presumption that sanctions are to be imposed upon willful non-

compliance.” Local Rules, rule 4.

4

According to the Cc: line of the letter from plaintiff’s

counsel to the Nash County Assistant Clerk of Court, requesting

that the ED Affidavit be filed, he sent both plaintiff and

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same date, plaintiff filed a notice of hearing upon the

equitable distribution claim, setting the hearing for 6 November

2012, and this notice of hearing was served upon defendant by

mail to her at the address she provided in Indiana.5 The record

contains no indication that plaintiff had complied with any of

the requirements of North Carolina General Statute § 50-21(d),

including a scheduling and discovery conference6, possible

mediation7, and a final pretrial conference.8

Thereafter, the trial court entered an “ORDER OF

CONTINUANCE” which continued “this matter” to 4 December 2012

(“Continuance Order”). We cannot discern exactly what was

defendant a copy of the ED Affidavit on or about 17 October

2012.

5

The notice also stated that “[t]he issuing party is ready for

hearing upon the issues to be calendared, but the parties have

not agreed upon the court date.” (Emphasis in original.)

6

“Within 120 days after the filing of the initial pleading or

motion in the cause for equitable distribution, the party first

serving the pleading or application shall apply to the court to

conduct a scheduling and discovery conference.” N.C. Gen. Stat.

§ 50-21(d) (2009).

7

Mediation is required by Rule 7 of the Local Rules prior to

scheduling an equitable distribution case for trial, unless the

case has been exempted from mediation. See Local Rules, rule 7.

Mediation is to “be completed within 90 days of the scheduling

conference or 210 days of the filing of the complaint, whichever

occurs first.” Local Rules, rule 10(c).

8

Rule 10(d) of the Local Rules requires that “[a] final pre-

trial conference shall be held within 60 days of the completion

of mediation.” Local Rules, rule 10(d).

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continued to when by the Continuance Order, nor could counsel at

the oral argument of this case explain the meaning of the

Continuance Order. Normally hearings are continued to a date in

the future instead of the past, but here though the Continuance

Order was filed on 6 November 2012, the trial court signed the

order on 6 December 2012. To be clear, the trial court did not

even abbreviate the date but wrote out “6th . . . December[.]”

We assume that the clock for the Clerk of Court’s office was

working properly, so perhaps the trial judge inadvertently wrote

the wrong month when signing the Continuance Order. But there

were court dates set for both 6 November 2012 -- plaintiff’s

notice of hearing for the equitable distribution claim -- and 4

December 2012 -- Continuance Order for “this matter[.]”

Furthermore, though the Continuance Order provides numerous

reasons for the trial court to check for why the matter is being

continued, none are checked on this Continuance Order. Lastly,

in the consent portion of the Continuance Order, only

plaintiff’s attorney has signed. There is no indication in the

record that the Continuance Order was served upon defendant or

any counsel for defendant.

On 10 December 2012, the trial court entered an order (“ED

Affidavit Order”) which states that it was based upon the

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hearing held on 6 November 2012, “upon the Plaintiff’s request

for the Court to structure a time frame within which any and all

matters pertaining to equitable distribution or any remaining

9

issues raised in the pleading would be disposed of . . . .”

Defendant was not present or represented. The ED Affidavit

Order stated as follows:

[I]t appearing that the Plaintiff has in

fact filed his equitable distribution

affidavit in timely fashion but the

Defendant, for whatever reason has failed or

refused to do so; and it appears as if the

Defendant has not appeared in court but has

had some alleged reason not to be in court

each occasion the case has been set for

trial; and on the occasion first mentioned

hereinabove, the Defendant forwarded a

correspondence dated November 5, 2012, which

she did not copy Plaintiff’s attorney with

(with the exception of the copy of a

purported medical document at the bottom

thereof) which was either in the file or

provided to the presiding judge by the Clerk

when the calendar was called; and

Plaintiff’s attorney indicated to the Court

that they thought it was frivolous,

unreasonable, and inequitable for the

Defendant to be able to continually avoid a

hearing in this case for reasons that cannot

9

We note that the Local Rules, particularly Rule 10, provide

detailed “timelines” for equitable distribution cases. See

Local Rules, rule 10(c). Under Rule 11, “[f]or good cause the

Presiding Judge may modify the [rule 10] timelines[,]” but the

record contains no indication of any order modifying the rules.

See Local Rules, rule 11. Perhaps the 10 December 2012 order

could be considered as an order modifying the requirements of

the rules except that it does not mention any statute or local

rule nor does it mention any “good cause” for modification. Id.

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be substantiated when they have otherwise

complied with the law and needed for the

Court to take action to structure time

limits within which things could happen; and

the Court reviewed the medical document at

the bottom of the Plaintiff’s November 5

correspondence but could not decipher or

understand the handwriting therein and did

not find the letter or the attachment to be

reasonable under the circumstances; and,

based upon the pleadings in the file and the

motion of Plaintiff’s counsel, the Court

does ORDER,

ADJUDGE, AND DECREE as follows:

1. That the Defendant shall have

until December 4, 2012 in which to file her

equitable distribution affidavit, which is

already well passed [(sic)] the time allowed

by law, and should she not have her

affidavit filed by that time her right to do

so shall be forfeited and she and the Court

will be bound by the information set forth

in the Plaintiff’s Equitable Distribution

Affidavit and thereafter she will not be

allowed any additional time within which to

file said document.

2. That if either party desires any

further discovery, it shall be completed on

or before December 4.

3. That at the December 4 calendar,

the Court shall determine a final date for

trial in this matter.

4. For such other and further relief

as the Court seems just and proper in the

nature of this cause.

The record contains no indication that the ED Affidavit Order

was served on defendant or any counsel for defendant.

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The letter regarding a medical excuse referred to in the ED

Affidavit Order was a letter from defendant, dated 5 November

2012, in which she stated that her surgeon, Dr. Benjamin Chiu,

of Kokomo, Indiana, had forbidden her from traveling to the

hearing on 6 November 2012. At the bottom of defendant’s letter

was a handwritten note, which we have no difficulty deciphering,

on a prescription form for Howard Regional Health System, of

Kokomo, Indiana, stating that “Pt. to be excused from

travel/work until follow up visit in 1-2 weeks[.]” Defendant

also stated in the letter that she had told plaintiff’s attorney

the dates she could attend court, and he set the 6 November 2012

date against her wishes.

Defendant’s medical condition was a recurring theme

throughout the case. Defendant’s counterclaim alleged that she

suffered “from a number of medical conditions” which made “her

unable to support herself.” Plaintiff replied that defendant

“malingers” and would “say or do anything that she can to not

work an honest day’s work.” But the record contains no

substantive evidence regarding defendant’s medical condition.

In addition, despite the trial court’s statement in the ED

Affidavit Order that “the Defendant has not appeared in court

but has had some alleged reason not to be in court each occasion

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the case has been set for trial[,]” our record contains no

indication whatsoever that this case had ever been set for any

sort of hearing before 6 November 2012.

On 4 December 2012, the matter came on for hearing again,

and a judgment was filed on 19 December 2012 as a result of this

hearing (“Sanctions Order”). The Sanctions Order stated as

follows:

[I]t appearing that the matter was before

the Court based upon the Plaintiff’s request

(all of which was relayed to the Court at

its last session when Judge Covolo was

presiding) asking that the Defendant forfeit

her right to file any further equitable

distribution documents for her failure to

have her equitable distribution affidavit

filed with the Court the date first

referenced hereinabove, and for the Court to

set this case before the undersigned Judge

Presiding, who is the designated judge, for

the final equitable distribution hearing on

January 8, 2013; and it appearing that the

Plaintiff was in court with his attorney of

record, Robert D. Kornegay, Jr., and that

the Defendant was not in court, although

attorney Katherine Fisher informed the Court

that she had been contacted by the

Defendant, and had a telephone conference

scheduled with her the following day

(December 5) at 3:00 p.m.; and, based upon

the pleadings in the file, the statement of

counsel, and the proceedings, the Court does

make the following FINDINGS OF FACT:

1. That all parties have had due and

adequate notice of the proceedings and that

the parties and the subject party are

properly before the Court.

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2. That the last order of the Court

gave to the Defendant the right and

opportunity to file her equitable

distribution affidavit by the date first

referenced hereinabove, but that no

pleadings of any other or further type have

been filed with or received by the Court.

That the Defendant has had plenty [of]

adequate time under all the circumstances to

file her pleadings and for her lack or

inability of having done so, the Court does

find that it is not unreasonable that the

Defendant has therefore forfeited any

further right to file her equitable

distribution affidavit and the

identification, valuation, and

classification of all said assets and debts

as provided by the Plaintiff in his

equitable distribution affidavit shall

hereinafter be those values that shall be

considered and heard by the Court.

3. That there has been discovery

pending since August of 2010, whereby the

Plaintiff filed discovery on the Defendant

and she has not made any valid attempt to

provide the information required therein by

law.

4. That this matter has been pending

for a long period of time and it is right,

fair, and reasonable that the parties should

be able to move forward with their lives and

conclude the issues raised in the litigation

and therefore the case will be set for trial

on the issue of equitable distribution of

property at the undersigned Judge’s next

session of court for January 8, 2013.

NOW, THEREFORE, based upon the foregoing

Findings the Court makes the following

CONCLUSIONS OF LAW:

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1. That all parties have had due and

adequate notice of these proceedings and

that the parties and the subject matter are

properly before the Court.

2. That the Defendant has forfeited

her right to file her equitable distribution

affidavit or any other documents or matters

pertaining to same and that the

identification, valuation, and

classification of assets and debts as set

forth in the Plaintiff’s said affidavit

shall be those that shall be considered by

the Court.

NOW, THEREFORE, based upon the

foregoing Findings and Conclusions the Court

does hereby ORDER, ADJUDGE AND DECREE:

1. That the Defendant has forfeited

her right to file her equitable distribution

affidavit or any other documents or matters

pertaining to same and that the

identification, valuation, and

classification of assets and debts as set

forth in the Plaintiff’s said affidavit

shall be those that shall be considered by

the Court.

2. That this case is hereby set for

hearing on equitable distribution of

property at the Undersigned’s next session

of court for January 8, 2013.

3. That this matter shall be retained

for further consideration by the court.

The record contains no indication that the Sanctions Order was

served upon defendant or any counsel for defendant.

The 8 January 2013 court date was continued, by consent of

both plaintiff and defendant, to the March or April 2013 term of

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court with Judge Covolo. An order for peremptory setting for 5

March 2013 was filed on 17 January 2013, and this was served

upon defendant. On 23 January 2013, plaintiff’s counsel also

filed a notice of hearing on equitable distribution for 5 March

2013, and this was served upon defendant.

The equitable distribution trial was held on 5 March 2013.

Plaintiff was present with his attorney and defendant was

present, pro se. The 12 July 2013 judgment (“ED Judgment”)

stated,

the Defendant has forfeited her right to

file her equitable distribution affidavit or

any other documents or matters pertaining to

the same by virtue of a Judgment dated

December 14, 2012, of record in this matter,

and that as a result thereof the Plaintiff’s

equitable distribution affidavit, and his

documentation in support thereof, in

addition to the testimony of the parties,

and any documentation offered by the

Defendant, was the sole source of the

Court’s identification, valuation, and

classification of marital property; and,

based upon the pleadings in the file, the

testimony of the parties and their

documentary evidence, and the statement of

counsel, the Court does make the following

FINDINGS OF FACT[.]

Ultimately, the trial court made findings of fact consistent

with plaintiff’s ED Affidavit and evidence and awarded an

unequal distribution of property in favor of plaintiff.

Defendant filed a pro se “NOTICE OF APPEAL” appealing “the

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ruling and judgment of the Nash County District Court entered on

July 12, 2013[.]”

II. Jurisdiction

Defendant asserts on appeal that the ED Judgment of 12 July

2013 is a final, appealable order, and she also challenges the

“December 10, 2012 discovery order and the December 19, 2012

sanctions Judgment” which were interlocutory orders and not

immediately appealable; this is true, but defendant also failed

to give notice of appeal identifying the ED Affidavit Order and

the Sanctions Order, so we must first consider whether this

Court has jurisdiction to consider her appeal as to these

decisions.

We note that while Rule 3(d) of the

Rules of Appellate Procedure provides that

the notice of appeal shall designate the

judgment or order from which appeal is

taken, N.C. Gen. Stat. § 1–278 (2013)

provides: Upon an appeal from a judgment,

the court may review any intermediate order

involving the merits and necessarily

affecting the judgment. This Court has held

that even when a notice of appeal fails to

reference an interlocutory order, in

violation of Rule 3(d), appellate review of

that order pursuant to N.C. Gen. Stat. § 1–

278 is proper under the following

circumstances: (1) the appellant must have

timely objected to the order; (2) the order

must be interlocutory and not immediately

appealable; and (3) the order must have

involved the merits and necessarily affected

the judgment. All three conditions must be

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met.

Tinajero v. Balfour Beatty Infrastructure, ___ N.C. App. ___,

___, 758 S.E.2d 169, 175 (2014) (citation and quotation marks

omitted).

We find that all three conditions for defendant’s appeal as

to the ED Affidavit Order and the Sanctions Order have been met.

See id. As to the timeliness of defendant’s objection, based

upon the record before us, we cannot determine when, if ever,

the ED Affidavit Order and the Sanctions Order were served upon

defendant. Clearly defendant became aware of the ED Affidavit

Order and the Sanctions Order at some point in time, but there

is no certificate of service10 on either document. Under North

Carolina General Statute § 1A-1, Rule 58, the ED Affidavit Order

and the Sanctions Order should have been served upon defendant

within three days of their entry:

Subject to the provisions of Rule

54(b), a judgment is entered when it is

reduced to writing, signed by the judge, and

filed with the clerk of court. The party

10

North Carolina General Statute § 1A-1, Rule 5(b) requires that

“[a] certificate of service shall accompany every pleading and

every paper required to be served on any party or nonparty to

the litigation, except with respect to pleadings and papers

whose service is governed by Rule 4. The certificate shall show

the date and method of service or the date of acceptance of

service and shall show the name and service address of each

person upon whom the paper has been served.” N.C. Gen. Stat. §

1A-1, Rule 5(b) (2009).

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designated by the judge or, if the judge

does not otherwise designate, the party who

prepares the judgment, shall serve a copy of

the judgment upon all other parties within

three days after the judgment is entered.

Service and proof of service shall be in

accordance with Rule 5.

N.C. Gen. Stat. § 1A-1, Rule 58 (2009). Under North Carolina

Rule of Appellate Procedure Rule 3, defendant would have had 30

days to appeal from the ED Affidavit Order or Sanctions Order if

she had been served with them “within the three day period

prescribed by Rule 58 of the Rules of Civil Procedure; or (2)

within 30 days after service upon the party of a copy of the

judgment if service was not made within that three day

period[.]” N.C.R. App. P. 3(c). Since we do not know when or

if defendant was ever “served” with the ED Affidavit Order or

the Sanctions Order, we cannot discern how she would have made

any more timely objection to the ED Affidavit Order and the

Sanctions Order than she has by her appeal of the ED Judgment

resulting from them.

Next, both the ED Affidavit Order and Sanctions Order were

interlocutory, as they did not make a final determination of all

claims and issues. See Hamilton v. Mortg. Info. Servs., Inc.,

212 N.C. App. 73, 76, 711 S.E.2d 185, 188 (2011) (“An

interlocutory order is one made during the pendency of an

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action, which does not dispose of the case, but leaves it for

further action by the trial court in order to settle and

determine the entire controversy.” (citation and quotation marks

omitted)).

Finally, both the ED Affidavit Order and Sanctions Order

“involved the merits and necessarily affected the judgment.”

Tinajero, ___ N.C. App. at ___, 758 S.E.2d at 175. As a result

of the ED Affidavit Order and Sanctions Order defendant could

not challenge plaintiff’s evidence as to the identification,

classification, and valuation of the martial property and debts;

these are the central issues in any equitable distribution

claim. Thus, we have jurisdiction to consider defendant’s

appeal as to the ED Affidavit Order and Sanctions Order. See

Tinajero ___ N.C. App. at ___, 758 S.E.2d at 175.

III. Imposition of Sanctions Without Notice

Defendant first argues that “the trial court erred in

imposing sanctions against defendant which prohibited her from

filing an equitable distribution affidavit and prevented her

from presenting her case.” (Original in all caps.) The

sanctions were imposed in the trial court’s Sanctions Order,

which found that defendant had failed to comply with the ED

Affidavit Order. Defendant contends that the ED Affidavit

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Order, which set a 4 December 2012 deadline for filing her ED

Affidavit, had not yet been entered when the deadline had

passed. We need not engage in any analysis to determine that

defendant’s argument is factually correct -- 10 December 2012 is

after 4 December 2012. Even if defendant had been present in

court on 6 November 2012, when it seems that the trial court

addressed this issue, an order is not entered until it is signed

and filed, and the ED Affidavit was signed on 24 November 2012

and filed on 10 December 2012. See N.C. Gen. Stat. § 1A-1, Rule

58 (2011) (“Subject to the provisions of Rule 54(b), a judgment

is entered when it is reduced to writing, signed by the judge,

and filed with the clerk of court.”)

Plaintiff does not even attempt to argue in his brief that

defendant had notice of the 4 December 2012 deadline, but in his

approximately two page argument which is devoid of citation of

any authority, claims that defendant had “a full and fair

opportunity to present her case at trial[,]” (original in all

caps), because at trial the trial court did permit her to

testify and asked her “broad and open-ended questions[.]”

Plaintiff also contends that the 10 December 2012 order actually

gave defendant an extension of time to file her ED Affidavit, an

argument which is directly contradicted by the order itself.

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Plaintiff argues that defendant “began representing herself” on

3 February 2012 –- this fact is not supported by the record --

and that she “was served on 17 October 2012 with the Plaintiff’s

Equitable Distribution Inventory Affidavit[.]” Actually, the

only indication in the record of the service of plaintiff’s ED

Affidavit is the Cc: line at the bottom of plaintiff’s counsel’s

transmittal letter to the Assistant Clerk of Court, asking that

plaintiff’s ED Affidavit be filed; there is no certificate of

service on defendant. But even if we assume that plaintiff is

correct, and plaintiff mailed his ED Affidavit to defendant on

17 October 2012, plaintiff argues that defendant’s ED Affidavit

would have been due on 19 November 2012.11 Plaintiff claims that

since the ED Affidavit Order deadline was 4 December 2012, the

ED Affidavit Order actually gave defendant 15 extra days to file

her ED Affidavit, beyond the time allowed by North Carolina

General Statute § 50-21. Plaintiff’s argument is inexplicable,

given the finding in the ED Affidavit Order, based upon the

stated hearing date of 6 November 2012, that “Defendant, for

whatever reason has failed or refused to” file her ED Affidavit

in a “timely fashion[.]” (Emphasis added.) In addition, the ED

11

Plaintiff’s brief actually argues that “Defendant’s EDIA was

due on or before 19 November 2014[;]” we assume plaintiff means

2012, as that was the year when the 10 December 2012 order was

entered.

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Affidavit Order decreed that “the Defendant shall have until

December 4, 2012 in which to file her equitable distribution

affidavit, which is already well passed [(sic)] the time allowed

by law[.]” (Emphasis added.) That is, on 6 November 2012,

despite the fact that according to plaintiff, defendant’s ED

Affidavit was not due until 19 November 2012, the trial court

found that defendant has “for whatever reason . . . failed or

refused to” file her ED Affidavit in a “timely fashion” and that

the time for filing of her ED Affidavit was “already well

passed” (sic). Plaintiff’s argument is, to use the words of

the trial court’s ED Affidavit Order describing defendant’s

failure to appear in court on 6 November 2012, “frivolous [and]

unreasonable[.]”

We realize that many things may have happened in this case

which are not revealed by the record, despite the fact that

counsel for plaintiff and defendant participated in the

settlement of the record on appeal and would presumably have

included all documents necessary for us to review the issues

presented. In fact, several of the documents which do show

various important dates were added as supplements to the record.

We agree that this equitable distribution case took entirely too

long, far beyond the time guidelines set by both North Carolina

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General Statute § 50-21 and by the Local Rules. See N.C. Gen.

Stat. § 50-21; Local Rules, rule 10. Yet we feel compelled to

note that plaintiff filed the initial equitable distribution

claim, and thus he had the obligation under North Carolina

General Statute § 50-21(a) to file his ED Affidavit within 90

days. See N.C. Gen. Stat. § 50-21(a). Instead, plaintiff filed

his ED Affidavit approximately two years and 10 months after he

filed his complaint. This is not, as the ED Affidavit Order

described it, “timely[.]” The trial court also found in its

Sanctions Order that defendant failed to respond to the “REQUEST

FOR PRODUCTION OF DOCUMENTS” served upon her in August of 2012;

this is true, but essentially irrelevant to the equitable

distribution claim, as this request for production included only

three requests, the first of which was directed to defendant’s

counterclaim for post-separation support. While it is true that

defendant also failed to take actions that she should and could

have taken to comply with the time requirements of equitable

distribution and have the case resolved sooner, both parties

were complicit in the delay. Also, the record before this Court

does not reveal that defendant ever failed to respond to any

sort of discovery request relevant to the equitable distribution

claim and does not reveal that she ever failed to appear at any

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court date other than the 6 November 2012 and 4 December 2012

dates previously discussed.

As we have established that defendant had no notice of the

4 December 2012 deadline before it had passed, we must now

consider whether she had sufficient notice that she may face

sanctions, in the form of barring her from presentation of

evidence as to the identification, valuation, and classification

of the property to be distributed and a decree that the trial

court would determine the “identification, valuation, and

classification of assets and debts” according to plaintiff’s ED

Affidavit. Although neither the trial court’s ED Affidavit

Order or Sanctions Order cite any statutory basis for imposition

of sanctions against defendant, nor did plaintiff file any

motion seeking relief based upon any statute or rule, it appears

that the sanctions were based upon North Carolina General

Statute § 50-21(e):

(e) Upon motion of either party or

upon the court’s own initiative, the court

shall impose an appropriate sanction on a

party when the court finds that:

(1) The party has willfully obstructed

or unreasonably delayed, or has

attempted to obstruct or

unreasonably delay, discovery

proceedings, including failure to

make discovery pursuant to G.S.

1A-1, Rule 37, or has willfully

obstructed or unreasonably delayed

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or attempted to obstruct or

unreasonably delay any pending

equitable distribution proceeding,

and

(2) The willful obstruction or

unreasonable delay of the

proceedings is or would be

prejudicial to the interests of

the opposing party.

Delay consented to by the parties is not

grounds for sanctions. The sanction may

include an order to pay the other party the

amount of the reasonable expenses and

damages incurred because of the willful

obstruction or unreasonable delay, including

a reasonable attorneys’ fee, and including

appointment by the court, at the offending

party’s expense, of an accountant,

appraiser, or other expert whose services

the court finds are necessary to secure in

order for the discovery or other equitable

distribution proceeding to be timely

conducted.

N.C. Gen. Stat. § 50-21(e).

This Court has determined in Megremis v. Megremis that the

adequacy of notice of potential sanctions under North Carolina

General Statute § 50-21 is a question of law which we review de

novo:

Notice and opportunity to be heard

prior to depriving a person of his property

are essential elements of due process of law

which is guaranteed by the Fourteenth

Amendment of the United States Constitution.

Whether a party has adequate notice is a

question of law. In order to pass

constitutional muster, the person against

whom sanctions are to be imposed must be

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advised in advance of such charges.

Moreover, a party has a due process right to

notice both (1) of the fact that sanctions

may be imposed, and (2) the alleged grounds

for the imposition of sanctions.

179 N.C. App. 174, 178-79, 633 S.E.2d 117, 122 (2006)

(citations, quotation marks, and brackets omitted); see also

Suntrust Bank v. Bryant/Sutphin Prop., LLC, ___ N.C. App. ___,

___, 732 S.E.2d 594, 598 (2012) (“For questions of law, we apply

de novo review.” (citation and quotation marks omitted)).

As also noted in Megremis, North Carolina General Statute

§ 50-21(e) does not set forth any specific requirements for

notice, so we have looked to similar statutory provisions for

guidance:

N.C.G.S. § 50-21(e) is silent as to

what type of notice is required under the

statute and how far in advance notice must

be given to a party facing sanctions. Under

N.C. Gen. Stat. § 1A-1, Rule 11, a motion

requesting sanctions must be served within

the period prescribed by N.C. Gen. Stat. §

1A-1, Rule 6(d), not later than five days

before the hearing on the Rule 11 motion.

N.C.G.S. § 50-21(e) includes conduct

sanctioned under N.C. Gen. Stat. § 1A-1,

Rule 37, as well as a separate, more

general, sanctions provision specific to an

equitable distribution proceeding. Under

Rule 37, a trial court may impose sanctions,

including attorney’s fees, upon a party for

discovery violations. Our Court has held

that a party sanctioned under Rule 37 had

ample notice of sanctions where the moving

party’s written discovery motion clearly

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indicated the party was seeking sanctions

under Rule 37. Moreover, at a hearing on

the discovery motion, the sanctioned party

was given the opportunity to explain to the

trial court any justification for the

party’s delinquency in responding to

discovery.

Megremis, 179 N.C. App. at 179, 732 S.E.2d at 121 (citations

omitted).

As in Megremis, “plaintiff filed no written motion seeking

sanctions.” Id. at 179, 732 S.E.2d at 121. Here, the sanctions

issue was initially addressed at the hearing on 6 November 2012.

The notice of hearing for 6 November 2012 stated that the

hearing was set for plaintiff to “make application for relief in

the form of equitable distribution of property and for

attorney’s fees, costs and such other relief as provided in

Chapter 50 of the North Carolina General Statutes and as prayed

for in the pleadings.” No motion to compel or motion for

sanctions was filed. No scheduling or pretrial conferences were

ever held, although both are required by North Carolina General

Statute § 50-21(d) and by the Local Rules. See N.C. Gen. Stat.

§ 50-21(d); Local Rules, rule 10. Instead, plaintiff asked the

trial court at the 6 November 2012 hearing, where defendant was

not present, “to structure a time frame within which any and all

matters pertaining to equitable distribution or any remaining

-27-

issues raised in the pleading would be disposed of[,]” and the

trial court did this by setting forth the 4 December 2012

deadline previously discussed at length.

We can safely say that the complete absence of notice of

potential sanctions under North Carolina General Statute § 50-

21(e) is not adequate notice. See N.C. Gen. Stat. § 50-21(e).

We also disagree with plaintiff that the Sanctions Order “did

not adversely affect [defendant] during the hearing.” Plaintiff

does not dispute that the trial court’s ED Judgment makes

findings of fact and conclusions of law as to “the

identification, valuation, and classification of assets and

debts” strictly in accord with plaintiff’s ED Affidavit, as the

Sanctions Order decreed.

As we must reverse the ED Judgment, we will not address

each of defendant’s arguments about the failure of the trial

court to properly classify, value, and distribute the property.

But because these issues will arise again on remand, for

guidance to the trial court, we will note that North Carolina §

50-20(c) creates a presumption of an equal distribution, and the

trial court must make findings of fact as to the factors under

North Carolina General Statute § 50-20(c) to support an unequal

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distribution. N.C. Gen. Stat. § 50-20(c) (2009). In its ED

Judgment, the trial court based its unequal distribution on

reasons that include but are not limited to

the following:

a. The Defendant’s failure to work

and contribute to the marital estate.

b. The debt that the Defendant

incurred during the marriage and the fact

that Plaintiff had to pay off what he did

both during the marriage and after the

separation.

c. The Defendant was not a stay at

home mother but spent a large part of her

time up and down the road and with her

family and friends in Indiana, that although

it appears to the Court that she was capable

and able bodied, did not work substantially

or materially and contribute towards the

marital estate or the needs of the family.

d. The fraud perpetrated on the

Plaintiff to believe that the child born

during their relationship was his and the

fact that he was primarily responsible for

that child’s support to and through the age

of 19.

e. The fact that the Plaintiff ended

up paying the educational loans for the

Defendant’s son by another relationship

without any help or contribution from the

Defendant.

f. The Defendant took out a false and

frivolous domestic violence action against

the Plaintiff in order to better her

position in court when she could not sustain

the burden of proof with regards thereto.

g. The fact that the Plaintiff

basically raised and supported her three

children from a prior marriage from the date

they became married until the date they aged

out or moved out of their home.

Most if not all of these factors except possibly (b) appear to

-29-

fall under the “catch-all” provision of North Carolina General

Statute § 50-20(c)(12): “Any other factor which the court finds

to be just and proper[,]” but only factors which address the

economic aspects of the marriage are relevant to the

distribution.12 See Smith v. Smith, 314 N.C. 80, 87, 331 S.E.2d

682, 687 (1985) (“Thus, under 50-20(c)(12), the only other

considerations which are just and proper within the theory of

equitable distribution as expressed by 50-20(c)(1)-(11) are

those which are relevant to the marital economy. Therefore, we

hold that marital fault or misconduct of the parties which is

not related to the economic condition of the marriage is not

germane to a division of marital property under 50-20(c) and

should not be considered.” (quotation marks omitted)). Many of

the trial court’s findings of fact and conclusions of law

address factors which are simply irrelevant to equitable

distribution because they are not economic factors as defined by

Smith. See id.

One particularly egregious example of the trial court’s

consideration of irrelevant evidence is the paternity of the

12

In fact, the findings as to distributional factors which were

disapproved by the Supreme Court in Smith v. Smith, bear some

resemblance to those in this case, as the trial court there

found that defendant generally failed in many ways in her duties

as a wife and mother. 314 N.C. 80, 331 S.E.2d 682 (1985).

-30-

parties’ now-adult child. Plaintiff alleged in his complaint

that “one child was born of the marriage who is past the age of

majority[;]” defendant’s answer admitted this fact. Since this

fact was judicially admitted by both parties, it would appear

that paternity of the child was not a disputed issue. See

Hinton v. Hinton, 70 N.C. App. 665, 672, 321 S.E.2d 161, 165

(1984) (“It has long been established that where there is an

admission in the final pleadings defining the issues and on

which the case goes to trial, such admission is a judicial

admission which conclusively establishes the fact for the

purposes of that case and eliminates it entirely from the issues

to be tried.”). Furthermore, support of a child of the

marriage, minor or adult, is not a proper distributional factor

under North Carolina General Statute § 50-20(c). See N.C. Gen.

Stat. § 50-20(c); see also Godley v. Godley, 110 N.C. App. 99,

117, 429 S.E.2d 382, 393 (1993) (“Defendant further argues that

the trial court’s finding that plaintiff has voluntarily taken

in their 22 year old son, David, was irrelevant to the equitable

distribution proceeding. We agree and hold that this factor was

improperly considered as a distributional factor. The trial

judge also improperly considered the fact that the minor child,

Catherine, was still residing at the marital residence at the

-31-

time of trial. North Carolina General Statutes § 50-20(f)

provides that the court shall provide for equitable distribution

without regard to alimony or child support.”). Yet in this

equitable distribution case, to which the adult son is not a

party, plaintiff sought to bastardize his child.

At trial, plaintiff took the position that his son is not

his biological child. Defendant had become pregnant prior to

the marriage, and plaintiff was aware of the possibility that he

may not be the child’s father, as defendant “told the Plaintiff

that she was 99.5% sure that the child was his[.]” Plaintiff

testified that he had a DNA test performed on his son, on the

pretense of doing a drug test, and attempted to present as

evidence the results of this DNA test to prove that he was not

the biological father of said son. The trial court quite

properly sustained defendant’s objection to the admission of

this DNA evidence. Despite the exclusion of the evidence, the

trial court then made finding of fact number 6 “[t]hat in the

recent past the Plaintiff had DNA samples tested and established

to the best of scientific means under current circumstances that

the child was and is not his biological child.” Based upon

finding of fact number 6, the trial court concluded that this

factor was one which supported the unequal distribution: “[t]he

-32-

fraud perpetrated on the Plaintiff to believe that the child

born during their relationship was his and the fact that he was

primarily responsible for that child’s support to and through

the age of 19.” Many of the other factors upon which the order

relies are also irrelevant as they do not relate to the marital

economy.13 As the judgment must be reversed, we will not address

any of the other findings of fact or conclusions of law

challenged by defendant.

For the foregoing reasons, we reverse the ED Affidavit

Order, the Sanctions Order, and the ED Judgment. We are

particularly troubled by the need to vacate the ED Judgment, and

thus prolong this case which has already been pending for over

four and one-half years, especially since defendant has died

during this case. In addition, an equitable distribution claim

is one of the very few types of cases which has a statutory

scheme which sets forth a timeline for each stage of the case.

See N.C. Gen. Stat. § 50-21. We are concerned by the complete

13

Factor (b) supporting the unequal distribution was “[t]he debt

that the Defendant incurred during the marriage and the fact

that Plaintiff had to pay off what he did both during the

marriage and after the separation.” Factor (b) seems to address

the economy of the marriage, but was perhaps misplaced; the

trial court may classify debts as marital or separate and may

determine what credit should be given for payment of debts after

the date of separation, but should not both give credit for

payment of debts and give an unequal distribution on this basis,

as this gives double credit for the debt payment.

-33-

absence of any mention of the timeline and scheduling

requirements of North Carolina General Statue § 50-21 and the

Local Rules; such statutory provisions and rules are intended to

prevent exactly the sort of delay and waste of judicial

resources which this case demonstrates. On remand, we direct the

Chief District Court Judge to set a date for a scheduling

conference, as directed by Rule 10(b) of the Local Rules, with

proper notice of this scheduling conference to plaintiff and

defendant, so that the trial court may set forth a new schedule

for this case on remand in accord with North Carolina General

Statute § 50-21 and the Local Rules, to the extent possible from

this point forward.

IV. Conclusion

For the foregoing reasons, we reverse the ED Affidavit

Order, the Sanctions Order, and the ED Judgment; and we remand

for further proceedings consistent with this opinion.

REVERSED and REMANDED.

Judges MCGEE and BRYANT concur.