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Wicker v. Wicker

Court of Appeals of North Carolina

December 3, 2019

CHERYL JERNIGAN WICKER, Plaintiff,
v.
GILLES ANDRE WICKER, Defendant.

          Heard in the Court of Appeals 10 September 2019.

          Appeal by defendant's counsel from order entered 26 June 2018 by Judge Joseph Buckner in Orange County No. 16 CVD 73 District Court.

          Collins Family Law Group, by Rebecca K. Watts, for appellant Melissa Averett.

          The Jernigan Law Firm, by Leonard T. Jernigan, Jr., and Epting & Hackney, by Joe Hackney, for plaintiff-appellee.

          DIETZ, JUDGE.

         After a 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 agents.

         Defendant's 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.

         The 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.

         We 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.

         We 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.

         Facts and Procedural History

         Plaintiff 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.

         The 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.

         Six 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 ...


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