Digh v. Digh

An unpublished opinion of the North Carolina Court of Appeals does not constitute

controlling legal authority. Citation is disfavored, but may be permitted in accordance

with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA14-241

NORTH CAROLINA COURT OF APPEALS

Filed: 21 October 2014

REBECCA CHAPMAN DIGH, (now

OSBORNE),

Plaintiff,

v. Burke County

No. 98 CVD 89

WILLIAM WALLACE DIGH,

Defendant.

Appeal by defendant from orders entered 28 August 2013 and

20 December 2013 by Judge Sherri W. Elliott in Burke County

District Court. Heard in the Court of Appeals 27 August 2014.

Richard W. Beyer for appellee.

KUEHNERT & JONES, PLLC, by Daniel A. Kuehnert, for

appellant.

ELMORE, Judge.

William Wallace Digh (defendant) appeals from the trial

court’s denial of his Rule 60(b)(4) motion and his Rule 59

motion. Defendant argues on appeal that he was not afforded due

process prior to the entry of the 2009 Domestic Relations Order.

After careful consideration, we affirm.

I. Background

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The facts of this case are largely undisputed and are

derived from an earlier opinion filed in this matter, Digh v.

Digh, COA12-506, 2012 WL 6590509 (N.C. Ct. App. Dec. 18, 2012).

Rebecca Chapman Digh (plaintiff) and defendant were married on

24 October 1976 and subsequently separated on 1 November 1995,

after almost twenty years of marriage. Two children were born

of the parties during their marriage, both of whom are now

adults.

On 26 February 1998, a Consent Judgment (1998 Judgment) was

entered with respect to equitable distribution of the marital

property. Defendant was a participant in the State of North

Carolina Teachers’ and State Employees’ Retirement System, and a

portion of his retirement benefits was subject to equitable

distribution. In the 1998 Judgment, the trial court made the

following findings of fact with regard to the portion of

defendant’s retirement benefits designated to plaintiff:

(B) That the Plaintiff and Defendant have

agreed that the Plaintiff shall be

designated as the alternate payee of

retirement benefits equal to fifty percent

(50%) of the Defendant/Plan Participant's

account which can be attributed to that

amount which accrued from the date of the

parties’ marriage (October 24, 1976) to the

date of their separation (November 1, 1995),

plus all interest accruing on the alternate

payee’s portion from the date of the

parties’ separation through the date the

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funds are disbursed to the alternate payee.

(C) That the Plan Administrator is directed

to make monthly payments directly to the

Plaintiff of the amount which equals fifty

percent (50%) of the Defendant’s account,

which can be attributed to that amount which

accrued from the date of the parties’

marriage (October 24, 1976) to the date of

their separation (November 1, 1995), plus

all interest accruing on the alternate

payee’s portion from the date of the

parties’ separation through the date the

funds are disbursed to the alternate payee.

On the foregoing findings of fact, the trial court

similarly concluded as a matter of law, the following:

(B) That the Plaintiff . . . shall be

designated as the alternate payee of

retirement benefits equal to fifty percent

(50%) of the Defendant/Plan Participant’s

account which can be attributed to that

amount which accrued from the date of the

parties' marriage (October 24, 1976) to the

date of their separation (November 1, 1995),

plus all interest accruing on the alternate

payee’s portion from the date of the

Parties’ separation through the date the

funds are disbursed to the alternate payee.

(C) That the Plan Administrator is directed

to make monthly payments directly to the

Plaintiff of the amount which equals fifty

percent (50%) of the Defendant’s account,

which can be attributed to that amount which

accrued from the date of the parties’

marriage (October 24, 1976) to the date of

their separation (November 1, 1995), plus

all interest accruing on the alternate

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payee’s portion from the date of the

parties’ separation through the date the

funds are disbursed to the alternate payee.

Both plaintiff and defendant signed the 1998 Judgment, and the

1998 Judgment was notarized.

At the end of 2008, defendant retired. In February 2009,

defendant received a letter from plaintiff’s counsel dated 5

February 2009. In the letter, counsel stated the following:

Your ex-spouse, [Plaintiff], has retained

this office to make sure she receives her

share of retirement benefits as provided by

the Judgment entered February 26, 1998[.] .

. . Since your retirement at the end of

2008, [Plaintiff] was to begin receiving her

share of your retirement when you did and I

would calculate that to be about 28% of your

retirement benefit. I do not know if you

have received your first State retirement

check but if it was not reduced by the

amount [Plaintiff] is to receive, you will

owe her that amount of each and every month

that you receive the entire retirement

amount rather than that amount reduced by

[Plaintiff’s] share. I have sent you this

letter so you are aware that you need to pay

this amount to [Plaintiff] if you are

receiving the total benefit and that if it

is not paid to her we will be forced to

return to court.

On 16 February 2009, the trial court entered a Domestic

Relations Order (2009 Order) designating the following as

Plaintiff’s marital portion:

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4. The marital interest of the nonmember ex-

spouse in the, member’s benefits payable by

the Retirement System shall be calculated as

follows: fifty per cent [sic] (50%) of the

amount determined by multiplying the

member’s total benefit by a fraction, the

numerator of which shall be the total months

of creditable service earned during the

marriage, including creditable service

purchased during the marriage, and the

denominator of which shall be the member’s

total number of months of creditable service

at the time of retirement or of a withdrawal

of accumulated contributions.

5. The formula set forth in Finding of Fact

4 shall be applied to all retirement

benefits payable to the member of this his

designated survivor(s) under any option

contained in G.S. 135–5(g), as well as to

any return of accumulated contributions made

pursuant to G.S. 135–5(f) or G.S. 135–5(gl).

Based on the foregoing and other findings of fact the trial

court made the following conclusions of law:

5. The Retirement System shall distribute to

the non-member ex-spouse her marital share

of the member’s benefits payable by the

Retirement System, calculated pursuant to

the provisions of Finding of Fact 4 and 5 of

this order. In the event that a return of

accumulated contributions becomes payable

pursuant to G.S. 135–5(f) or G.S. 135–5(gl),

then the Retirement System shall distribute

to the nonmember ex-spouse her marital share

of such a return of accumulated

contributions, calculated pursuant to the

provisions of Finding of Fact 5 of this

order.

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6. The non-member ex-spouse shall receive

her share of the member’s retirement

benefits at such time and in such payment

form as said benefits are paid to the

member.

. . .

10. A copy of this Order shall be served

upon the Administrator of the Teachers’ and

State Employees’ Retirement System of North

Carolina, and the Administrator shall

determine, within a reasonable period of

time, whether this Order can be administered

by the Retirement System. This Order shall

take effect immediately and shall remain in

effect until further orders of this Court.

Until this Order is accepted by the

Retirement System, this Court retains

jurisdiction to modify this Order as may be

required or necessary.

On 9 July 2009, defendant filed a motion in the cause (2009

Motion) in which he petitioned the court to modify the 2009

Order. However, on 18 February 2011, defendant voluntarily

dismissed, without prejudice, his 2009 Motion. On 17 May 2011,

defendant filed a second motion in the cause (2011 Motion) in

which he petitioned the court for a second time to modify the

2009 Order. Defendant again argued that “[d]efendant was lead to

believe that a limited amount of his retirement would be

transferred to the Plaintiff amounting [to] fifty percent (50%)

of the retirement which was paid in between October 24, 1976,

and November 1, 1995.” Based on the foregoing, defendant

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contended that “the division [of the retirement account] should

have been on the active portion of the retirement accumulated

during the marriage between the dates specified in the [1998

Judgment] and nothing more.” Defendant also argued that

“[p]laintiff failed to take reasonable steps at or near the time

of the entry of the [court’s] Order [to] have the portion of the

retirement transferred into her individual name for payment[.]”

Defendant prayed that the court modify the 2009 Order, on the

basis of a mutual mistake of fact, to reflect the agreement

reached by the parties and memorialized in the 1998 Judgment.

On 12 December 2011, the trial court entered an order denying

defendant’s 2011 Motion. Defendant appealed to this Court. We

affirmed the order of the trial court denying defendant’s 2011

Motion on the basis that defendant only established a unilateral

mistake, not a mutual one. See id.

Defendant subsequently filed a Rule 60(b)(4) motion on 12

April 2013, moving the trial court to declare as void the

following: (1) the 2009 Order and (2) the portion of the 1998

Judgment dealing with the division of property. In an order

filed 28 August 2014, the trial court found that the 2009 Order

“did not contain any provision different from the 1998

[Judgment] other than stating the correct calculation of the

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Plaintiff’s interest in the Defendant’s State retirement[.]” It

concluded as a matter of law that defendant’s motion was without

merit, as the 1998 Order called for the entry of a Qualified

Domestic Relations Order, if necessary, or if required by the

Plan Administrator of the State of North Carolina Teachers’ and

State Employees’ Retirement System.

Defendant filed a Rule 59(a) motion for a new trial and

Rule 59(e) motion to alter or amend the 28 August 2013 judgment.

The trial court denied defendant’s Rule 59 motions, concluding

that no grounds exist on which to grant these motions.

Defendant now appeals to this Court.

II. Analysis

Defendant seeks relief on the basis that the 2009 Order is

“void ab initio” because the due process notice requirement was

not met. We disagree.

Here, the trial court neither lacked subject matter

jurisdiction nor was there a violation of defendant’s right to

due process. “The fundamental requirement of due process is the

opportunity to be heard at a meaningful time and in a meaningful

manner.” Mathews v. Eldridge, 424 U.S. 319, 333, 47 L. Ed. 2d

18, 32 (1976) (citation and quotation omitted). “Generally, due

process requires notice and a hearing before the government may

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deprive an individual of liberty or property.” State v. Poole,

___ N.C. App. ___, ___, 745 S.E.2d 26, 34 (2013) writ denied,

review denied, appeal dismissed, ___ N.C. ___, 749 S.E.2d 885

(2013).

On these particular facts, notice to defendant prior to the

entry of the 2009 Order was not a prerequisite for the Order to

be binding on defendant. Defendant was afforded due process at

the time he consented to the terms of the 1998 Judgment.

Although defendant contends in his Rule 60(b)(4) motion that he

“did not have notice or an opportunity to be heard by the court

on the substance of the 1998 [Judgment][,]” we are not

persuaded. Defendant signed the 1998 Judgment before a notary,

and the 1998 Judgment specifically states “WE CONSENT” above the

signature line. The terms of the 1998 Judgment clearly provide

for the entry of a Qualified Domestic Relations Order if

required by the Plan Administrator of the State of North

Carolina Teachers’ and State Employees’ Retirement System, and

it specifically directs the Plan Administrator to make monthly

payments “directly to the Plaintiff of the amount which equals

fifty percent (50%) of the Defendant’s account” from the date of

the parties’ marriage to the date of their separation. By

stipulating to these terms, defendant cannot now argue that the

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trial court erred in entering the 2009 Order, which is premised

entirely on the agreed-upon terms set forth in the 1998

Judgment. See e.g., Holden v. John Alan Holden, 214 N.C. App.

100, 112, 715 S.E.2d 201, 209 (2011) (concluding that when a

consent order clearly stated that the plaintiff was to pay the

defendant a sum certain, and the plaintiff stipulated that she

failed to do so, the plaintiff cannot argue that the trial court

erred in ordering the plaintiff to pay).

In sum, a review of the record reveals that defendant

agreed to the terms set forth in the 1998 Judgment, and the

calculation of plaintiff’s interest in defendant’s retirement

contributions and benefits earned during the marriage and prior

to the date of separation set forth in the 2009 Order is correct

and reflects the agreed-upon terms. There is insufficient

evidence in the record for us to determine whether a copy of the

1998 Judgment was served upon the State of North Carolina

Teachers’ and State Employees’ Retirement System. Regardless,

the 2009 Order provides that a copy of the 2009 Order shall be

served upon the Plan Administrator. We find this to be

sufficient. We overrule defendant’s second argument—that

plaintiff’s failure to serve the North Carolina Teachers’ and

State Employees’ Retirement System a copy of the 1998 Judgment

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rendered the judgment void. We decline to address defendant’s

remaining arguments as he merely “incorporates by reference

prior arguments” and offers no substantive arguments in support

of his final issues. See N.C. R. App. P., Rule 28(b)(6)

(Arguments on appeal must “contain the contentions of the

appellant with respect to each issue presented. Issues not

presented in a party’s brief, or in support of which no reason

or argument is stated, will be taken as abandoned.”).

Affirmed.

Judges CALABRIA and STEPHENS concur.

Report per Rule 30(e).