in the Court of Appeals 19 September 2017.
by plaintiff from order entered 27 January 2017 by Judge
Meader W. Harriss, III, in Currituck County District Court
No. 14 CVD 308.
East Carolina Law Group, by Timothy P. Koller, for
Twiford Law Firm, PC, by Courtney S. Hull, for
primary issue in this appeal is whether federal law prohibits
a veteran's military disability benefits from being
considered as income for purposes of satisfying a
distributive award to his former spouse pursuant to an
equitable distribution order. Timothy Lesh ("Mr.
Lesh") appeals on federal preemption grounds from the
trial court's order denying his motion pursuant to Rule
60(b) of the North Carolina Rules of Civil Procedure to set
aside a portion of the parties' equitable distribution
order and holding him in civil contempt for failing to make
payments required under that order. Because we conclude that
federal law does not preclude the treatment of his disability
payments as income for this purpose, we affirm.
and Procedural Background
Lesh was married to Margaret S. Lesh ("Ms. Lesh")
on 14 October 1989. On 1 December 2012, the parties
separated, and they divorced on 16 September 2014. On 1
August 2014, Mr. Lesh filed a complaint for absolute divorce
in Currituck County District Court. Ms. Lesh filed an answer
and counterclaim on 27 August 2014, seeking post-separation
support, alimony, and equitable distribution of the
parties' marital property.
and 23 February 2016, a hearing was held before the Honorable
Meader W. Harriss, III. On 13 April 2016, the trial court
entered an order (the "Equitable Distribution
Order") distributing 75% of the marital estate to Mr.
Lesh and 25% to Ms. Lesh. The court further concluded that
"[i]n order for [Ms. Lesh] to receive her share of the
net marital estate, it is necessary for [Mr. Lesh] to pay
[Ms. Lesh] a distributive award in the sum of $31, 590.59,
which reflects her 25% of the estate minus the $3, 010.00
value of the marital property hereby distributed to her and
in her possession." The trial court ordered that this
distributive award "be paid in monthly installments in
the amount of $877.22, the first of which is due April 1,
2016 to continue to be due the first of the month every month
until said sum is paid in full." The Equitable
Distribution Order further permitted Mr. Lesh to "pay
off the remaining balance of the lump sum at any time, in
lieu of continuing monthly installment payments."
May 2016, Mr. Lesh filed a notice of appeal from the
Equitable Distribution Order. However, he dismissed his
appeal on 28 July 2016. On 8 August 2016, Mr. Lesh filed a
motion in the cause pursuant to Rule 60(b) seeking to set
aside the portion of the Equitable Distribution Order
requiring his monthly payments of the distributive award. In
this motion, he contended that the Equitable Distribution
Order was an "irregular" judgment because it would
require him to use his military disability benefits to make
the distributive award payments despite the fact that federal
law preempted the trial court's ability to require him to
September 2016, Ms. Lesh filed a motion for contempt,
requesting that the trial court hold Mr. Lesh in contempt for
"fail[ing] and refus[ing] to comply with [the Equitable
Distribution] Order in that [he] ha[d] not made any payments
to [her] . . . and his failure to comply [wa]s willful,
without just cause or excuse." A hearing on Mr.
Lesh's motion in the cause and Ms. Lesh's motion for
civil contempt was held on 17 October 2016. On 27 January
2017, the trial court entered an order captioned
"Amended Order of Contempt" denying Mr.
Lesh's motion under Rule 60(b) and granting Ms.
Lesh's motion for civil contempt. Mr. Lesh filed a timely
notice of appeal.
appeal, Mr. Lesh argues that the trial court erred by (1)
denying his Rule 60(b) motion to set aside the portion of the
Equitable Distribution Order requiring monthly distributive
payments based on his contention that his only source of
income is his military disability benefits, which under
federal law cannot be distributed as divisible property; and
(2) holding him in civil contempt for failing to make the
monthly payments required by the Equitable Distribution
Order. We address each argument in turn.
Denial of Rule 60(b) Motion
Lesh argues that the trial court erred by denying his motion
under Rule 60(b)(6) because the Equitable Distribution Order
was an irregular judgment. Specifically, he contends that the
order was irregular because it required him to make monthly
payments of the distributive award despite the trial
court's awareness that the entirety of his monthly income
was comprised of his military disability benefits.
Lesh, conversely, contends that this portion of his appeal
lacks merit due to the fact that he withdrew his appeal of
the Equitable Distribution Order and therefore lost his right
to challenge the validity of that order. She further contends
that his motion in the cause was defective due to the fact
that Rule 60(b)(6) cannot be used as a substitute for appeal.
Applicability of Rule 60(b)(6)
60(b) states, in pertinent part, as follows:
(b) Mistakes; inadvertence; excusable neglect; newly
discovered evidence; fraud, etc. - On motion and upon
such terms as are just, the court may relieve a party or his
legal representative from a final judgment, order, or
proceeding for the following reasons:
(1) Mistake, inadvertence, surprise, or excusable neglect;
(2) Newly discovered evidence which by due diligence could
not have been discovered in time to move for a new trial
under Rule 59(b);
(3) Fraud (whether heretofore denominated intrinsic or
extrinsic), misrepresentation, or other misconduct of an
(4) The judgment is void;
(5) The judgment has been satisfied, released, or discharged,
or a prior judgment upon which it is based has been reversed
or otherwise vacated, or it is no longer equitable that the
judgment should have prospective application; or
(6) Any other reason justifying relief from the operation of
N.C. R. Civ. P. 60(b).
60(b)(6) "serves as a grand reservoir of equitable power
by which a court may grant relief from a judgment whenever
extraordinary circumstances exist and there is a showing that
justice demands it." Dollar v. Tapp, 103
N.C.App. 162, 163- 64, 404 S.E.2d 482, 483 (1991) (citation
and quotation marks omitted). We have held that "[a]
party seeking to set aside an irregular judgment may properly
do so by filing a motion for relief from judgment pursuant to
Rule 60(b)(6)." Brown v. Cavit Scis.,
Inc., 230 N.C.App. 460, 464, 749 S.E.2d 904, 908
(2013) (citation omitted). "It is well settled, however,
that Rule 60(b)(6) does not include relief from errors of law
or erroneous judgments." Garrison ex rel. Chavis v.
Barnes, 117 N.C.App. 206, 210, 450 S.E.2d 554, 557
(1994) (internal citations omitted). "We review the
denial of a motion pursuant to Rule 60(b)(6) for an abuse of
discretion." Sharyn's Jewelers, LLC v.
Ipayment, Inc., 196 N.C.App. 281, 284, 674 S.E.2d
732, 735 (2009) (citation omitted).
Supreme Court has explained the distinction between
irregular, erroneous, and void judgments as follows:
A judgment may be valid, irregular, erroneous, or void. . . .
An irregular judgment is one rendered contrary to the course
and practice of the court, as for example, at an improper
time; or against an infant without a guardian; or by the
court on an issue determinable by the jury; or where a plea
in bar is undisposed of; or where the debt sued on has not
matured; and in other similar cases (citing authorities). An
erroneous judgment is one rendered according to the course
and practice of the court, but contrary to law, or upon a
mistaken view of the law, or upon an erroneous application of
legal principles, as where, judgment is given for one party
when it [should] have been given for another; or where the
pleadings require several issues and only one is submitted;
or where the undenied allegations of the complaint are not
sufficient to warrant a recovery; and in other cases
involving a mistake of law (citing authorities). . . . A void
judgment is one that has semblance but lacks some essential
element, as jurisdiction or service of process.
Wynne v. Conrad, 220 N.C. 355, 359-60, 17 S.E.2d
514, 518 (1941) (internal citations and quotation marks
correct procedure for attacking a judgment is dependent upon
the type of defect asserted." Burton v.
Blanton, 107 N.C.App. 615, 616, 421 S.E.2d 381, 383
The last subsection of Rule 60(b) authorizes the court to
relieve a party from the operation of a judgment for any
other reason not enumerated in the first five clauses. While
Rule 60(b)(6) and the first five clauses of this rule are
mutually exclusive, clause (6) should not be characterized as
a catchall provision. Rule 60(b)(6) is not intended as
substitute relief for reasons that would be deficient if
asserted under one of the ...