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Miller v. Miller

Court of Appeals of North Carolina

April 18, 2017

WAYNE MORGAN MILLER, Plaintiff,
v.
CYNTHIA BAILEY MILLER aka CYNTHIA BAILEY, Defendant. AND, CYNTHIA BAILEY MILLER, Plaintiff,
v.
WAYNE MORGAN MILLER, Defendant.

          Heard in the Court of Appeals 3 November 2016.

         Appeal by plaintiff Wayne Morgan Miller from judgment and orders entered 17 March 2014, 16 July 2014[1], and 17 November 2015 by Judge Lunsford Long in District Court, Chatham County Chatham County, No. 13 CVD 195, 11 CVD 701.

          Doster, Post, Foushee, Post & Patton, P.A., by Norman C. Post, Jr., for plaintiff-appellant.

          Cynthia Bailey, pro se.

          STROUD, Judge.

         Plaintiff Wayne Morgan Miller ("Husband") appeals from several orders entered by the district court related to his divorce from defendant Cynthia Bailey Miller ("Wife"). Husband raises both procedural and substantive issues with the trial court's equitable distribution order. Although the trial court properly entered its order vacating the divorce judgment under Rule 60(b) and therefore had jurisdiction over the equitable distribution claims, we remand for the trial court to address substantive issues contained in the equitable distribution order itself.

         Facts

         The parties were married on 4 July 1983 and had no children. On 27 July 2011, Wife filed her complaint for divorce from bed and board and equitable distribution; the parties were still living together at that time. Husband filed his answer on 23 September 2011, which alleged in part that "[n]o facts exist to justify an unequal division of marital property." His answer also alleged that the parties were "not living separate and apart." Wife filed a motion to amend her complaint, and after the trial court granted the motion, Wife filed her amendment on 12 October 2011, adding detailed factual allegations to the fault grounds of her divorce from bed and board claim. On 3 January 2012, the trial court began the hearing on Wife's claim for divorce from bed and board. That same day, a "Memorandum of Judgment/Order" was apparently entered without prejudice which granted Wife exclusive possession of the marital home, prohibited the parties from disposing of personal property, and provided that "[t]his matter is continued until January 23, 2012".[2] On 19 January 2012, Husband filed his answer to the amended complaint. On 30 January 2012, the hearing on divorce from bed and board concluded, and on 15 March 2012, the district court entered an order granting Wife a divorce from bed and board and exclusive possession of the marital home, giving Husband ten days to vacate the home. The district court found Wife's testimony "more credible" than Husband's. The trial court found that Husband had admitted to committing adultery during the marriage and that he was "an excessive user of alcohol[.]" When drunk, Husband called Wife "stupid" and many derogatory and profane names. He had also told her that he wished she were dead and "threatened to punch [Wife] in her face on occasions when the [Wife] asked him questions about their properties."

         In the divorce from bed and board order, the trial court also found that Wife had found evidence of Husband's affair at their Virginia residence, including a used condom, an earring, and "lips painted with lipstick on the bathroom mirror [and] the words 'Love You' underneath them." The trial court also found that Husband had been asked "whether he recently acquired a Virginia driver's license, and he falsely said 'no' under oath." Husband had also registered a vehicle in Virginia, using a Virginia address, although he had been living in North Carolina since "as early as June of 2010." He also "continued to have his ex-girlfriend of 26 years ago as a beneficiary on his life insurance policy."

         A series of motions, countermotions, and orders arising from disputes regarding various items of personal property and Husband's move out of the marital home followed. The parties finally began living separate and apart on 21 March 2012. On 16 April 2012, the trial court entered an order appointing a referee to inventory the parties' marital and separate personal property. In addition, on the same date, the trial court entered a "Consent Order to Add Supplemental Pleading" which stated in relevant part as follows:

1. Since the filing of the complaint certain facts and events have occurred which makes it just to file a supplemental proceeding, to wit: the parties hereto have legally separated.
2. The Parties consent to republish the Second Claim for Relief as set forth in the original complaint in which both parties join in the relief sought. The Parties hereto do so move and the motion is granted by the Court.
3. The Defendant does not pray that an unequal division of the marital property be made.
4. Said Second Claim as contained in Plaintiff's Complaint is hereby republished as of the date of entry of this Consent Order.
5. The Defendant's defense to dismiss the Equitable Distribution claim due to it being filed before the date of separation is hereby withdrawn by the Defendant.

         The parties engaged in extensive discovery related to equitable distribution, the referee's report was filed, and both parties filed various motions regarding discovery and valuation of property, which led to the trial court entering several orders based on these motions. On 12 June 2012, Husband filed a motion for interim distribution, requesting sale of the marital home, as well as distribution of various items of personal property to him. On 3 December 2012, the trial court apparently entered a consent order on a "Memorandum of Judgment/Order" form in which the parties agreed that the fair market value of the marital home as of the date of separation was $250, 173.00; they also agreed that the fair market value of the Virginia real property as of the date of separation was $87, 200.00.[3] The parties attended mediation of the equitable distribution claim on 17 December 2012 but did not reach an agreement.

         On 22 March 2013, Husband filed a complaint for absolute divorce. Wife filed a motion for extension of time to answer. Husband filed a motion for summary judgment on 22 April 2013, alleging that "there is no genuine issue of a material fact and [Husband] is entitled to an absolute divorce as a matter of law." Husband's motion also noted: "In addition, [Husband] requests that the Court take judicial notice of the entire files in those actions between the same parties hereto being 12 CVD 288, and 11 CVD 701."[4] Wife filed her answer on 16 May 2013, admitting the date of separation and alleging that the parties "currently have pending claims for equitable distribution in Chatham County District Court Case No. 11 CVD 701." The district court entered an order on 22 May 2013 granting Husband's claim for an absolute divorce while noting that "[a]ll existing issues raised in 11 CVD 701 between the same parties hereto should survive this absolute divorce."

         On 3 June 2013, Husband filed a motion to continue the equitable distribution trial scheduled for the next day and a motion for the trial judge to be recused on the basis that Husband thought the judge was unable to "complete the proceedings in a fair and impartial manner." The trial court denied the motions but the trial was continued to 24 June 2013 after Husband's counsel was granted leave to withdraw from the case. On 24 June 2013, Husband's new counsel appeared but the trial was again continued.

         On 1 July 2013, Husband's new counsel made an oral motion to amend his pleadings to seek an unequal distribution in Husband's favor; Wife did not oppose this motion and the trial court entered an order allowing it on 19 July 2013. But on 5 August 2013, Husband's legal strategy changed course and he filed a motion to dismiss Wife's equitable distribution claim for lack of subject matter jurisdiction, since the parties were not yet separated when the claim was filed. Husband alleged that he had not counterclaimed for equitable distribution and that the divorce from bed and board action in which Wife filed her claim was resolved on 15 March 2012 upon entry of the order granting divorce from bed and board. He also alleged that Wife had not filed any supplemental pleadings containing an equitable distribution claim and that the parties had already been divorced, ending Wife's ability to bring a claim for equitable distribution.

         Wife sought to preserve her equitable distribution claim on all fronts. In the divorce from bed and board case, she filed an affidavit opposing Husband's motion to dismiss her equitable distribution claim; in the absolute divorce case, she filed a Rule 60(b) motion asking the district court to set aside the absolute divorce judgment and allow her to file a new answer including a counterclaim for equitable distribution in the divorce case. The district court held a hearing on the motions filed by both parties on 23 October 2013 and rendered a ruling in open court, with both parties present, declaring that the court was granting Wife's motion to set aside the divorce judgment and allowing her to file a counterclaim for equitable distribution and dismissing Husband's motion to dismiss Wife's equitable distribution claim in the divorce from bed and board case.

         Before the court filed a written order based upon its rendition of the ruling on 23 October 2013, Husband was remarried, on 28 October 2013, in Virginia. On 10 December 2013, Husband filed a motion to re-open evidence, noting that at the time of the hearing on 23 October 2013, he had not re-married, but that subsequent to the hearing and prior to the entry of an order vacating the divorce judgment, he had remarried. Thus, Husband argued that he "should be afforded an opportunity to present evidence to [the district court] as to his remarriage since the entry of an order vacating his divorce judgment would not be in any way equitable and would create great legal hardship for him, additionally the entry of such order would interfere with his right to remarry." Further, Husband alleged that "[t]he entry of an order vacating the divorce judgment is unnecessary given that [the district court] is prepared to enter an order dismissing [Husband's] motion to dismiss equitable distribution in 11 CVD 701 for lack of subject matter jurisdiction, and thus [Wife] will not be prejudiced."[5]

         Husband also submitted his requested findings of fact for the court's "order vacating the divorce judgment entered in this action[, ]" including that he began living with Dorothy Virginia Brinkley in January 2013 and that they then married on 28 October 2013. He noted that when he heard the trial court's

declaration made in open Court on October 23, 2013, that being that it was going to vacate the otherwise properly entered judgment of absolute divorce in this action, he informed Ms. Brinkley of this and Ms. Brinkley expressed concern about being unable to marry [Husband] for a considerable period of time in the event that an order was actually entered vacating the divorce judgment and [Husband] was concerned about being able to maintain his relationship with Ms. Brinkley without being able to marry her for a considerable period of time. [Husband] loved Ms. Brinkley and did not want to lose the relationship. Ms. Brinkley was seventy-one years old as of October 23, 2013.

         The trial court held a hearing on 23 January 2014 regarding Husband's motion to reopen evidence. Husband testified that he married Ms. Brinkley five days after the 23 October 2013 hearing, on 28 October 2013, and they had created and signed a prenuptial agreement during the time between the hearing and the marriage.[6] After hearing the additional evidence, the trial judge noted that his "inclination is to find the evidence is not persuasive[.]"

         Near the end of the hearing, after Wife's counsel noted that he had never faced this situation, the court agreed, noting: "I don't think any human being ever has, so we're all sailing uncharted seas here." In trying to figure out how to address the motions at issue, Husband's counsel argued that the court needed "to make findings about the new evidence that [it] heard and it all needs to be embodied in one order, and you can say that despite, uh it-it being equitable relief that, in your discretion, you don't think [Husband] having two wives is a problem."

         The trial court replied:

I don't believe there's any prejudice to him that cannot be ameliorated by a remarriage, and I believe he married with full knowledge of the Court's intent and that [the], um, marriage should not be an impediment to the granting of the motion under these circumstances, and the motion should be allowed.

         After more back and forth with Husband's trial counsel, the Court reiterated its position:

THE COURT: ---- he attempted to enter a marriage with full knowledge of the Court's intent, and I think it was a tactical marriage, entered for tactical reasons only, as demonstrated by the circumstances and by the prenuptial agreement and what its provisions appear to be. It doesn't appear to be a bona fide marriage that has any legitimate purpose other than to circumvent the Court's intended ruling, and you can put that in the order if you like, [Wife's counsel]. And he can live with the consequences on him and her because he made the decision to contract it. So, that's my decision.

         On 17 March 2014, the court entered its order granting Wife's Rule 60(b) motion and setting aside the 22 May 2013 divorce judgment. In its very long and detailed order, the court addressed much of the procedural history of the various cases as summarized above and found that the hearing had been held on the motion on 23 October 2013 and before Wife's counsel completed drafting an order, Husband "proceeded to get remarried[.]" The order granting Wife's 60(b) motion included numerous findings, including that:

16. At the time of the entry of the Absolute Divorce Judgment in this action, both parties were operating under the unequivocal belief that both parties had pending claims for equitable distribution in the companion court action. This was evident based upon the actions of both parties in vigorously and continuously pursuing their equitable distribution claims in the companion court action for the 13 month period prior to the entry of the Absolute Divorce Judgment in this court action. This was also evident given the court filings of both parties in this court action, including the fact that [Husband] and his then counsel . . . submitted the Absolute Divorce Judgment to the Court for signature which contained express language stating that both parties have "pending, equitable distribution claims" in the companion court action and that these claims should be reserved for future hearing.
17. Nevertheless, after entry of the Absolute Divorce Judgment in this court action, [Husband] filed a Rule 12(b)(1) Motion to Dismiss as to [Wife's] equitable distribution claim in the companion court action. The Motion to Dismiss was filed in the companion court action on August 5, 2013.
18. Contrary to his earlier indications, [Husband] now contends that [Wife] does not have a valid, pending claim for equitable distribution in the companion court action and further contends that it is too late for [Wife] to file a new claim for equitable distribution in this action, in the companion court action or otherwise since the parties are now divorced.
19. In order to prevent the great injustice of [Wife] potentially being denied the right to proceed with an equitable distribution claim due to this newfound contention of [Husband], it is necessary to set aside the Absolute Divorce Judgment in its entirety and to allow [Wife] to file a counterclaim for equitable distribution in this court action.

(Emphasis in original).

         In addition, while the order noted that Wife initially filed her request for equitable distribution prematurely, the court also found that "[i]n the Consent Order to Add Supplemental Pleading, [Husband] expressly joined in the request for an equitable distribution[.]" The order includes detailed findings addressing all of the many "Actions Taken in the Companion Court Action by Both Parties in Pursuit of their Respective Equitable Distribution Claims" and then finds:

42. At the time of the entry of the Absolute Divorce Judgment in this court action, both parties reasonably believed that the Consent Order to Add Supplemental Pleading effectively established the parties' respective equitable distribution claims in the companion court action, and [Wife] had no knowledge otherwise until the Rule 12(b)(1) Motion to Dismiss was raised.

         The court found that Wife "reasonably relied" on Husband's statements and actions and reasonably believed "that both parties had valid equitable distribution claims pending[.]" Additionally, the trial court concluded in its findings that the parties had a "mutual belief" that they both had claims for equitable distribution pending at the time the trial court entered its absolute divorce decree.

         The trial court also explicitly described its concerns regarding whether its ruling dismissing Husband's motion in the divorce from bed and board action would be sufficient to protect Wife's claim:

118. The Court believes that [Husband's] Rule 12(b)(1) Motion to Dismiss in the companion court action should be denied. The decision as to denying said Motion in the companion court action was made after much thought and consideration. However, the Court does have concerns as to whether the appellate courts will come to the same conclusion despite the clearly expressed intent of the parties contained in the Consent Order to Add Supplemental Pleading. The concern is strong enough for the Court to believe that this Rule 60(b) Order should be entered to ensure that [Wife] can file a counterclaim in this action so that she can pursue her right to equitable distribution. To refuse the granting of this Rule 60(b) Order in this action would allow [Husband] to potentially benefit from a mutual mistake.
119. [Husband] has the right to appeal the Court's decision in the companion court action (as to the denial of his rule 12(b)(1) Motion to Dismiss). This Court is fully aware that the North Carolina Court of Appeals or a higher authority could determine that this Court should have granted [Husband's] Rule 12(b)(1) Motion to dismiss in the companion court action. The legal issues raised in the companion court action are very complex and the matter could be decided either way on appeal. The likelihood of the North Carolina Court of Appeals determining that no valid equitable distribution claims exist in the companion court action weighs heavily on this Court due to the great prejudice that would result to [Wife] under the circumstances. The Court cannot simply wait to set aside the Absolute Divorce Judgment pending a decision from the North Carolina Court of Appeals in the companion court action due to the great risk and prejudice that [Wife] would face by delaying the ruling in this matter. The only way to ensure that [Wife] has a valid equitable distribution claim is to set aside the Absolute Divorce Judgment entered in this action and allow [Wife] to file a counterclaim for equitable distribution. Justice requires that this occur now.

         The court also entered its order denying Husband's 12(b)(1) motion to dismiss Wife's equitable distribution claim in the divorce from bed and board action on 17 March 2014. In that even more extensive order, the trial court made the following relevant conclusions of law:

4. Rule 15(d) of the North Carolina Rules of Civil Procedure allows for defective pleadings to be corrected by the filing of a supplemental pleading.
5. Rule 13(e) of the North Carolina Rules of Civil Procedure allowed [Husband] the right to pursue his own counterclaim for equitable distribution by supplemental pleading.
6. The entry of the Consent Order to Add Supplemental Pleading, the "republishing" of the second claim for relief in [Wife's] original complaint (for equitable distribution) as of April 16, 2012, and the parties' act of joining in the relief sought therein effectively established [Wife's] claim for equitable distribution.
7. Further, [Wife's] various court filings after entry of the Consent Order to Add Supplemental Pleading further support the conclusion that [Wife] effectively established a valid claim for equitable distribution[.]
8. The entry of the Consent Order to Add Supplemental Pleading, the "republishing" of the second claim for relief in [Wife's] original complaint (for equitable distribution) as of April 16, 2012, and [Husband's] act of joining in the relief sought therein effectively ...

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