The opinion
An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-488
NORTH CAROLINA COURT OF APPEALS
Filed: 6 January 2015
DODI C. REARDON
Plaintiff-Appellant,
v. Gaston County
No. 01-CvD-2484
MARK C. BROWN
Defendant-Appellee.
Appeal by Plaintiff from order entered 15 January 2014 by
Judge Ralph C. Gingles in District Court, Gaston County. Heard
in the Court of Appeals 6 October 2014.
Thomas B. Kakassy for Plaintiff-Appellant.
Carpenter & Carpenter, PLLC, by James R. Carpenter, for
Defendant-Appellee.
McGEE, Chief Judge.
Dodi C. Reardon (“Plaintiff”) appeals the trial court’s
order dismissing, under the doctrine of laches, her equitable
distribution action filed thirteen years ago against her
husband, Mark C. Brown (“Defendant”). We affirm.
I. Background
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Plaintiff and Defendant were married on 24 July 1993. They
separated on 18 October 1997, and a separation agreement was
prepared (“the separation agreement”). Plaintiff signed the
separation agreement on 14 November 1997, but Defendant did not
sign it. Moreover, the final divorce judgment dissolving the
parties’ marriage, entered 4 June 1999, stated in part that
“there are matters of equitable distribution between the
plaintiff and the defendant that shall be placed on the ‘off
docket.’” However, Defendant contends that the parties adhered
to the terms of the separation agreement when their marital
assets were distributed, and Plaintiff does not dispute this in
her brief. Nonetheless, thirteen years later, Plaintiff moved
ex parte to reactivate the equitable distribution action between
her and Defendant. The trial court reactivated the equitable
distribution action by an amended order, entered 19 November
2012 (“the reactivation order”).
In response, Defendant moved the trial court to rescind the
reactivation order and dismiss Plaintiff’s action based, in
part, on the affirmative defense of laches. The trial court
held a hearing on Defendant’s motion on 17 December 2013 (“the
hearing”). By order entered 15 January 2014, the trial court
dismissed Plaintiff’s equitable distribution claim “for failure
to prosecute [her action] in a timely fashion, which
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constitute[d] prejudice to the [D]efendant” (“the dismissal
order”). Plaintiff appeals.
II. Standard of Review
It is well settled in our caselaw that when the trial
court sits without a jury,
the standard of review on appeal is whether
there was competent evidence to support the
trial court's findings of fact and whether
its conclusions of law were proper in light
of such facts. Where . . . the trial
court's findings are not contested, the
findings are presumed to be supported by
competent evidence and [are] binding on
appeal. The trial court's conclusions of
law are reviewable de novo.
Irby v. Freese, 206 N.C. App. 503, 508, 696 S.E.2d 889, 892
(2010) (citations and internal quotation marks omitted).
III. Plaintiff’s Challenges to the Findings
Plaintiff first challenges the sufficiency of a number of
the trial court’s findings of fact in the dismissal order,
specifically:
2. That on or about November 14, 1997, the
plaintiff had prepared a separation
agreement reflecting the agreement of the
parties, which she executed before a
notary public, but which was never
executed by the defendant. Nonetheless,
the terms and conditions of the
separation agreement were adhered to by
the parties. That, among other things,
the defendant purchased the plaintiff’s
interest in the marital residence, . . .
and the defendant paid off all of the
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marital credit card debt.
3. The plaintiff received an automobile, the
defendant received an automobile and each
party waived any claim that they may have
had to the retirement or 401K accounts of
the other. That although the separation
agreement was not completely executed,
the [c]ourt finds that the parties acted
in reliance upon the terms and conditions
thereof.
. . . .
8. That the plaintiff testified that she had
given no thought to equitable
distribution until she stumbled on the
divorce document and questioned what it
meant by the fact that the divorce decree
provided "That there are matters of
equitable distribution that should remain
open and placed on the 'off-docket.'"
That thereafter, she made inquiry of
counsel as to what that meant, thus, the
beginning of this action.
Plaintiff’s challenges to the above findings are largely
conclusory. In her brief before this Court, the entirety of
Plaintiff’s argument challenging findings of fact three and
eight is that they have “no basis in the record.” Plaintiff
does not explain her position further, nor does she direct this
Court to anywhere in the record where we might evaluate the
factual sufficiency of these findings. See N.C.R. App. P.
7(a)(1) (“If the appellant intends to urge on appeal that a
finding or conclusion of the trial court is unsupported by the
evidence or is contrary to the evidence, the appellant shall
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cite in the record on appeal the volume number, page number, and
line number of all evidence relevant to such finding or
conclusion.” (emphasis added)).
Moreover, in our review of the trial court’s findings, we
can look no further than the record presented on appeal. See
N.C.R. App. P. 9(a) (“In appeals from the trial division of the
General Court of Justice, review is solely upon the record on
appeal, the verbatim transcript of proceedings, if one is
designated, and any other items filed pursuant to this Rule
9.”). “This Court has repeatedly noted that it is the
appellant's duty to ensure that the record is complete. Without
evidence in the record of error by a trial judge, the appellate
court is not required to and should not assume error on the part
of the trial judge.” Faulkenberry v. Faulkenberry, 169 N.C.
App. 428, 430, 610 S.E.2d 237, 239 (2005) (citations and
quotation marks omitted).
In the present case, Plaintiff failed to include a
transcript of the hearing in the record on appeal. Therefore,
this Court is otherwise unable to review Plaintiff’s challenge
to finding of fact three, which discusses evidence that was
presented during the hearing regarding ways in which the parties
relied upon the separation agreement. Nor can we review finding
of fact eight, finding that Plaintiff testified she “had given
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no thought to equitable distribution until she stumbled on the
divorce document” a number of years after the parties ended
their marriage. As such, these challenges by Plaintiff are
waived.1 See id.
Regarding the trial court’s finding of fact two, which
discusses the separation agreement specifically, Plaintiff does
not contest that she and Defendant “adhered to” the terms of the
separation agreement or that Defendant purchased Plaintiff’s
interest in the marital residence and paid off all of the
marital credit card debt as part of this exchange. Therefore,
that portion of finding of fact two is binding on appeal. See
Irby, 206 N.C. App. at 508, 696 S.E.2d at 892. Instead,
Plaintiff challenges only the trial court’s decision to review
the separation agreement during the hearing. This argument is
waived as unpreserved because Plaintiff has not provided this
Court with any evidence that she objected to the introduction of
the separation agreement during the hearing. See N.C.R. App. P.
10(a)(1) (“In order to preserve an issue for appellate review, a
party must have presented to the trial court a timely request,
objection, or motion, stating the specific grounds for the
1
Plaintiff also raises conclusory challenges to the trial
court’s findings of fact six and seven, which discuss evidence
related to the possible contents of Defendant’s retirement
account; however, in light of our analysis above, we need not
address these challenges.
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ruling the party desired the court to make if the specific
grounds were not apparent from the context.”).
IV. Plaintiff’s Challenges to the Conclusions of Law
Plaintiff also challenges the trial court’s conclusion that
Defendant was prejudiced by Plaintiff’s failure to prosecute the
equitable distribution action in a timely manner. However,
because we have not been presented with meritorious challenges
to the trial court’s findings, all that remains for this Court
to determine is whether the trial court’s findings support its
conclusions of law. See Irby, 206 N.C. App. at 508, 696 S.E.2d
at 892. Plaintiff’s failure to litigate the equitable
distribution action in a timely manner must have “resulted in
some change in the condition of the property or in the relations
of the parties” that unreasonably prejudiced Defendant, in order
to dismiss Plaintiff’s action under the doctrine of laches.2 See
id. (citation omitted). The “mere passage of time is
insufficient” to support a conclusion that Defendant was
prejudiced by Plaintiff’s inaction. See id. In its order, the
trial court concluded:
1. That[,] although the parties did not have
a completely executed separation
2
Plaintiff also would have to “[know] of the existence of
the grounds for [her] claim” during the delay. See id.
(citation omitted). This appears to be uncontested in the
present case, as Plaintiff was a party to her own divorce.
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agreement, the parties acted in
detrimental reliance upon the terms and
conditions of the separation agreement
[and] each received what was bargained
for.
2. That the failure of the plaintiff to
pursue any claim for a period of at least
15 years following the separation and at
least 13 years following the divorce
further confirms the [c]ourt's finding
that the parties acted in detrimental
reliance upon the terms and conditions of
the separation agreement.
3. That the length of time involved, in and
of itself, constitutes severe prejudice
to the defendant and the fact that he was
unable to determine what might have been
in his retirement account, further
constitutes prejudice to the defendant.
The [c]ourt further finds that the
inordinate delay in attempting to pursue
a claim of equitable distribution is, in
and of itself, prejudicial and should be
barred by the equity defense of laches.
Plaintiff challenges the trial court’s conclusions two and
three, basing these challenges entirely on her contention that
“the mere passage of time does not constitute detrimental
reliance . . . [or] prejudice.” However, Plaintiff does not
challenge the trial court’s first conclusion that “the parties
acted in detrimental reliance upon the terms and conditions of
the separation agreement [and] each received what was bargained
for.” Plaintiff’s failures (a) to challenge the trial court’s
first conclusion and (b) to prosecute the equitable distribution
action for thirteen years simply because she “had given no
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thought” to it during that time, fully support the trial court’s
ultimate conclusion that Plaintiff “fail[ed] to prosecute [her
action] in a timely fashion, which constitute[d] prejudice to
the [D]efendant.” The trial court did not err in dismissing
Plaintiff’s action.
Affirmed.
Judges STEPHENS and DIETZ concur.
Report per Rule 30(e).