Watson v. Watson

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA22-473

Filed 04 April 2023

Catawba County, No. 20-CVD-408

TONYA IRENE SARTOR WATSON, Plaintiff,

v.

THOMAS STEUART WATSON, Defendant.

Appeal by plaintiff from judgment entered 15 July 2021 by Judge Robert A.

Mullinax, Jr., in Catawba County District Court. Heard in the Court of Appeals 24

January 2023.

Robinson and Lawing, LLP, by L. Bruce Scott and Melissa G. Jackson, for

Plaintiff-Appellant

Adkins Law, PLLC, by C. Christopher Akins and Jacqueline M. Keenan, for

Defendant-Appellee

DILLON, Judge.

Plaintiff Tonya Irene Sartor Watson (“Wife”) commenced this domestic action

against her husband Defendant Thomas Steuart Watson (“Husband”). Wife is

appealing from an order granting Husband partial summary judgment on her claim

for alimony based on Wife’s admission to committing adultery and from an order

denying her subsequent motion seeking an amendment to, or relief from, the partial

summary judgment order. As explained below, we conclude Wife failed to notice her

appeal in time, but in our discretion, we issue a writ of certiorari to address her

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Opinion of the Court

appeal. On the merits, we conclude that the trial court was premature on granting

summary judgment, as Husband had not responded to certain discovery requests

from Wife where his responses could provide evidence sufficient to establish that he,

too, engaged in sexual acts with another woman during the marriage. Accordingly,

we vacate the trial court’s grant of partial summary judgment and remand the matter

for further proceedings. On remand, the trial court may reconsider Husband’s motion

for summary judgment after the discovery issue is resolved.

I. Background

Husband and Wife were married in 2004 and had one child during the

marriage. In 2020, Wife commenced this action against Husband, requesting alimony

and other relief.

In July 2021, after a hearing on the matter, the trial court granted Husband

partial summary judgment on Wife’s claim for alimony. Later that month, Wife

moved for the judgment to be amended or, in the alternative, for relief from the

judgment. On 2 December 2021, the trial court denied Wife’s motion.

On 7 December 2021, Wife filed her written notice of appeal from both the July

2021 partial summary judgment order and the December 2021 order denying her

subsequent motion.

II. Analysis

A. Appellate Jurisdiction

The record on appeal suggests that the orders being appealed from are

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interlocutory because there is nothing in the record showing that certain claims

alleged by Wife have been resolved. For instance, the record does not show that Wife’s

claim for equitable distribution has been resolved.

Generally, “there is no right of immediate appeal from interlocutory orders.”

Wing v. Goldman Sachs, 382 N.C. 288, 293, 876 S.E.2d 390, 395 (2022). Our appellate

rules require that an appellant’s brief contain “[a] statement of the grounds for

appellate review.” N.C. R. App. P. 28(b)(4) (2021). An appellant’s failure to state a

proper ground for our Court’s jurisdiction subjects the appeal to dismissal. See

Larsen v. Black Diamond, 241 N.C. App. 74, 78, 772 S.E.2d 93, 96 (2015) (appeal

subject to dismissal because appellants “failed to state any grounds for appellate

review in their principal brief.”)

In her brief, Wife cites, as grounds for our appellate jurisdiction, that the July

2021 summary judgment order dismissing her alimony claim “is a final judgment,

and appeal therefore lies as a matter of right directly to the Court of Appeals pursuant

to N.C. Gen. Stat. §§ 7A-27(b) and 50-19.1.” Husband makes no argument

challenging our jurisdiction over Wife’s appeal.

The record does not show that the trial court’s July 2021 summary judgment

on Wife’s alimony claim was a final judgment. However, Wife is correct that N.C.

Gen. Stat. § 50-19.1 provides that a litigant in a domestic case may appeal

immediately from “an order or judgment adjudicating a claim for” one of a number of

domestic claims, including a claim for alimony “[n]otwithstanding any other pending

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claims filed in the same action.” N.C. Gen. Stat. § 50-19.1 (2021). That is, our General

Assembly provides a litigant the option to appeal an interlocutory judgment resolving

a domestic claim either before all domestic claims have been resolved or when all

claims have been resolved. Id.

However, when a litigant elects to appeal an interlocutory judgment resolving

a domestic claim while other claims are pending, the litigant still must comply with

Rule 3 of our Rules of Appellate Procedure, requiring that the notice of appeal be filed

within thirty days after entry of the judgment[.]” N.C. R. App. P. 3(c)(1) (2021).

In this matter, the trial court entered summary judgment on Wife’s alimony

claim in July 2021, but Wife did not notice her appeal from that order until December,

well outside the 30-day limit allowed by our Rule. We conclude Wife’s subsequent

motion for amendment of/relief from the summary judgment pursuant to Rules 52,

59, and 60 did not toll the running of her time to notice her appeal. Specifically, Rule

52 deals with amendments to “findings”, and summary judgment orders do not

contain findings. Hodges v. Moore, 205 N.C. App. 722, 723, 697 S.E.2d 406, 407 (2010)

(holding that “the provisions of Rule 52 . . . do not apply to orders granting summary

judgment.”) Rule 59 deals with “trials”, not summary judgment orders. See TD Bank

v. Eagle Crest, 249 N.C. App. 235, 791 S.E.2d 651 (2016) (holding that “Rule 59 [is]

not a valid route to challenge the order for summary judgment”). And Rule 60

motions do not toll the running of the time to notice an appeal. Lovallo v. Sabato,

216 N.C. App. 281, 283, 715 S.E.2d 909, 911 (2011) (reiterating that “[m]otions

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entered pursuant to Rule 60 do not toll the time for filing a notice of appeal.”)

However, our General Assembly, though, has empowered our court to issue

writs of certiorari “in aid of [our] own jurisdiction[] or to supervise and control the

proceedings of any of the trial courts of the General Court of Justice[.]” N.C. Gen.

Stat. § 7A-32(c) (2021). And our appellate courts may grant certiorari ex mero motu.

Brown v. Renaissance, 350 N.C. 587, 516 S.E.2d 382 (1999) (issuing the writ ex mero

motu to review a decision from our court); State v. Mangum, 270 N.C. App. 327, 336,

840 S.E.2d 862, 869 (2020) (recognizing our court’s “discretion to issue a writ of

certiorari ex mero motu”).

We exercise our discretion to issue a writ of certiorari to review Wife’s appeal.

We conclude that this matter represents a rare situation where issuing the writ is

warranted based on a number of factors. Wife’s argument has merit, as discussed in

the section below. Husband does not appear to have suffered any prejudice by Wife’s

failure to timely appeal. In fact, if we were not to issue the writ, Wife could still

appeal this interlocutory order when all her claims are resolved. See N.C. Gen. Stat.

§50-19.1 (“A party does not forfeit his right to appeal under this section if the party

fails to immediately appeal from [an interlocutory judgment on an alimony claim].”)

In the interest of judicial economy, it would be better to resolve Wife’s challenge to

the trial court’s grant of summary judgment on her alimony claim at this time.

B. Merits of Wife’s Challenge

Husband moved for summary judgment on Wife’s alimony claim on the basis

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that Wife had engaged in illicit sexual behavior during the marriage, prior to the date

of separation. Indeed, a dependent spouse is generally barred from receiving alimony

if she is found to have committed “an act of illicit sexual behavior” during the

marriage and prior to separation. N.C. Gen. Stat. § 50-16.3A(a) (2021).

At the hearing on his motion, Husband produced sworn statements from

alleged paramours of his Wife that each had engaged in adultery with Wife during

their marriage with Husband. Typically, such proof alone may not be sufficient to

warrant summary judgment to defeat a claim for alimony, as it is the supporting

spouse who bears the burden of proof to show that their spouse had engaged in such

behavior. See, e.g., Kidd v. Early, 289 N.C. 343, 370, 222 S.E.2d 392, 410 (1976)

(explaining the narrow circumstances where the party with the burden of persuasion

may be entitled to summary judgment on the strength of the affidavits of his

witnesses). Here, though, Wife has conceded to engaging in at least one affair.

Accordingly, summary judgment for Husband would be appropriate unless

Wife met her burden of showing either Husband consented to the affair or Husband

also engaged in at least one act of illicit sexual behavior. See N.C. Gen. Stat. § 50-

16.3A(a).

Evidence showing illicit sexual behavior need not be direct evidence but rather

may be also based on “circumstantial evidence” of an “adulterous disposition, or

inclination” of Husband and an alleged paramour and “the opportunity created to

satisfy their mutual [] inclinations.” In re Estate of Trogdon, 330 N.C. 143, 148, 409

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S.E.2d 897, 900 (1991).

In her complaint, Wife does allege that Husband engaged in adultery and other

illicit sexual behavior during the marriage. We note that her complaint is verified,

but that she makes her allegation regarding Husband’s adultery and illicit sexual

behavior “upon information and belief[,]” so that the verified allegation is not

sufficient evidence for a summary judgment hearing.

In any event, Wife argues the trial court should not have ruled on Husband’s

motion while Husband had not yet turned over discovery which the trial court had

ordered him to produce and which could show Husband had inclination and

opportunity to commit illicit sexual acts during the marriage.

Our Supreme Court has instructed that “[o]rdinarily it is error for a court to

hear and rule on a motion for summary judgment when discovery procedures, which

might lead to the production of evidence relevant to the motion, are still pending and

the party seeking discovery has not been dilatory in doing so.” Conover v. Newton,

297 N.C. 506, 512, 256 S.E.2d 216, 220 (1979); see also Howse v. Bank of America, 255

N.C. App. 22, 30, 804 S.E.2d 552, 558 (2017). This rule is not absolute, and our review

of a trial court’s decision to grant summary judgment with discovery pending is

within the discretion of the trial court. Id.

Based on the record before us, we conclude it was an abuse of discretion to rule

on Husband’s summary judgment motion. Specifically, we note that Wife has

knowledge of several suspicious texts between Husband and a co-worker and that she

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had sought from Husband, among other documents, his Facebook messages and

travel records during the time she suspects Husband to have engaged in an illicit

affair. The record shows that Wife filed a motion to compel discovery of these

documents when Husband failed to timely respond; that the trial court granted Wife’s

motion to compel as to these and other documents; and that Husband still had not

complied at the time of the hearing on Husband’s summary judgment motion. We

cannot say whether Husband’s responses will result in the discovery of evidence to

support Wife’s contention that Husband engaged in illicit sexual acts. But his

responses “might lead to production of [such] evidence[.]” Conover, 297 N.C. at 512,

256 S.E.2d at 220.

III. Conclusion

We grant certiorari to consider Wife’s appeal. Considering the merits, we agree

with Wife that the trial court abused its discretion in granting Husband summary

judgment on Wife’s alimony claim where the record shows that Husband had yet to

comply with discovery requests ordered by the trial court. We, therefore, vacate that

order and remand for further proceedings. On remand, the trial court may consider

Husband’s motion after resolution of the discovery issue.

VACATED AND REMANDED.

Judges GORE and RIGGS concur.

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