in the Court of Appeals 10 September 2019.
by defendant's counsel from order entered 26 June 2018 by
Judge Joseph Buckner in Orange County No. 16 CVD 73 District
Collins Family Law Group, by Rebecca K. Watts, for appellant
Jernigan Law Firm, by Leonard T. Jernigan, Jr., and Epting
& Hackney, by Joe Hackney, for plaintiff-appellee.
successful mediation, the trial court in this family law
dispute entered a consent order that, among other things,
required Defendant regularly to provide certain financial
information to the Plaintiff, and required the parties to
communicate with each other solely through their attorneys or
counsel, Melissa Averett, later sought to withdraw on the
ground that her representation of Defendant had ended and
that she and her client had not agreed on new terms of
engagement. Plaintiff opposed the motion, primarily on the
basis that Defendant lived in many locations-some
overseas-throughout the year and that Defendant would be
difficult to locate if Averett withdrew.
trial court entered an order denying Averett's motion to
withdraw "at this time" but stated in the order
that the court would allow the motion if Defendant retained a
new attorney, appointed a registered agent for service of
process, or posted a security bond.
reverse that order. As explained below, the record on appeal
does not contain any evidence that would support these
conditions-all of which appear aimed at Defendant's
future noncompliance with the consent order. The trial court
properly could require Defendant to identify a suitable
attorney or agent for communication when Averett withdraws,
as that is necessary to effectuate portions of the consent
order. Likewise, with appropriate evidence, the trial court
could impose additional conditions on Defendant, like those
in the challenged order, to prevent Defendant from evading
his obligations under the consent order. But the record
before us does not contain that evidence.
therefore reverse the court's order and remand for entry
of an order permitting Averett to withdraw. We leave it to
the trial court's sound discretion on remand whether to
conduct further proceedings or enter any additional orders to
ensure Defendant's compliance with the consent order.
and Procedural History
and Defendant divorced in 2006. In 2016, Plaintiff filed a
complaint alleging that Defendant was in breach of a property
separation agreement that the couple entered into before
their divorce. That contract dispute largely involved two
businesses in which Defendant is a stakeholder and from which
Defendant derives significant disbursements of some kind.
Defendant retained Melissa Averett to represent him in the
North Carolina proceeding.
parties mediated their contract dispute and reached a
settlement. On 31 October 2017, the trial court entered a
consent order, resolving all claims between the parties.
Among other things, the order requires Defendant to execute
authorization to allow the businesses in which he is a
stakeholder to send his future distributions to a CPA and to
authorize the CPA to remit portions of those distributions to
Plaintiff. It also requires Defendant to provide certain
financial reporting information about the businesses to
Plaintiff. Finally, the order provides that the parties
cannot communicate directly and instead must communicate
through their attorneys or designated agents.
months later, Averett filed a motion to withdraw as
Defendant's counsel. Plaintiff opposed Averett's
motion. Plaintiff asserted that Averett needed to remain as
counsel of record because Defendant was not a resident of
North Carolina and lives in various locations throughout the
year, both in the United States and overseas. Thus, Plaintiff
asserted, if Defendant violated the consent order,
"service under Rules 4 and 5 of the Rules of Civil
Procedure . . . may become effectively impossible."
Plaintiff also asserted that the consent order requires the