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Green v. Green

Court of Appeals of North Carolina

October 7, 2014

MICHAEL L. GREEN, Plaintiff,
JANA M. GREEN, Defendant

Heard in the Court of Appeals August 12, 2014.

Nash County. No. 09-CVD-2527.

Teresa DeLoatch Bryant, for plaintiff-appellee.

Judith K. Guibert, for defendant-appellant.

STROUD, Judge. Judges MCGEE and BRYANT concur.


Page 541

STROUD, Judge.

Appeal by defendant from judgment entered 12 July 2013 by Judge John J. Covolo in District Court, Nash County.

Defendant Estate of Jana M. Green[1] 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 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 production of documents regarding

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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]

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" 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 same

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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 conference[6], possible mediation[7], 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 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 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 issues raised in the pleading would be disposed of . . . ." [9] 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

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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 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,
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.

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 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 ...

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