Opinion
No. COA12–427.
2013-03-19
Kimbre H. METTS, Plaintiff, v. John Van Bokkelen METTS, III, Defendant.
John Van B. Metts, III, pro se. No appellee brief filed.
Appeal by defendant from order entered 22 November 2011 by Judge Jeffrey E. Noecker in New Hanover County Superior Court. Heard in the Court of Appeals 28 November 2012. John Van B. Metts, III, pro se. No appellee brief filed.
BRYANT, Judge.
Where defendant failed to support his challenge of a temporary custody order with any legal authority, we dismiss his argument. And, where defendant failed to present necessary record evidence in order for us to review his argument, the trial court's challenged findings of fact are presumed to be supported by competent evidence. However, we remand in part for further findings to support the trial court's award of attorney's fees to plaintiff.
Facts and Procedural History
Plaintiff Kimbre H. Metts and defendant John Van Bokkelen Metts, III, were married on 19 May 1990 and separated on 23 April 2008. On 1 May 2008, plaintiff filed a complaint for child custody, child support, post-separation support and alimony, permanent alimony, equitable distribution, interim distribution, and sequestration of the marital home. Defendant filed an Answer and Counterclaim on 5 June 2008. On 7 January 2009, and amended on 16 January 2009, the trial court entered an order on temporary custody of the parties' minor child, post-separation support, child support, and interim distribution.
On 9 February 2009, defendant filed a motion to set aside the 16 January 2009 order and for rehearing. Plaintiff filed a motion for an order to show cause alleging that defendant had failed to abide by the terms of the 16 January 2009 order. The trial court entered an order requiring defendant to show cause, “if any he may have, why he should not be held in contempt of this Court for his failure to pay post-separation support and for his failure to sign the listing agreement pursuant to this terms of the previous Order of the Court.”
On 20 May 2009, the trial court entered an order denying defendant's motion to set aside the 16 January 2009 order and for rehearing, finding defendant to be in civil contempt. On 16 July 2009, plaintiff filed a motion in the cause and motion to show cause, seeking to modify the 16 January 2009 amended order and to show cause for failure to pay interim support. Defendant filed a motion for relief to set aside the 19 January 2009 order and any subsequent modifications or amendments and to calendar the case for presentation of evidence. On 2 October 2009, the trial court entered an order modifying the 16 January 2009 amended order and holding defendant in willful contempt for his failure to pay post-separation support.
Thereafter, on 12 May 2010, defendant filed a complaint against plaintiff for child custody, child support, post-separation support and alimony, permanent alimony, equitable distribution, interim distribution, and sequestration of the marital home. On 27 July 2010, the trial court entered an order on equitable distribution, alimony, custody, child support and attorney's fees.
Defendant filed a motion to amend final order on 25 August 2010 and plaintiff filed a motion for an order to show cause alleging that defendant had failed to comply with the 27 July 2010 order. On 6 October 2010, the trial court entered an order dismissing plaintiff's motion for order to show cause and denying and dismissing defendant's motion to amend the equitable distribution order.
On 2 November 2010, defendant filed a motion to dismiss and retry the 27 July 2010 equitable distribution order. In a 15 March 2011 order the trial court dismissed defendant's motion to dismiss and retry and granted plaintiff attorney's fees.
On 27 July 2011, defendant filed a Rule 60 motion for relief “from all the Orders from case[ ] 08 CVD 1948[.]” Plaintiff filed a motion to dismiss defendant's Rule 60 motion, a motion for order to show cause, motion for Rule 11 sanctions, and motion for an award of attorney's fees. On 22 November 2011, the trial court entered an order dismissing defendant's Rule 60 motion. In its 22 November 2011 order, following a 3 October 2011 hearing, the trial court made the following findings of fact:
3. A lengthy hearing was held during the May 24, 2010 two week session of Family Court on the issues of equitable distribution, alimony, custody, child support and attorneys fees. During said hearing, Plaintiff was present and represented by [her counsel] and the Defendant was present and chose to represent himself.
4. At said trial, the undersigned received testimony from both parties and entered into evidence extensive documents to support each parties' position as to the issues to be heard. Said trial spanned the course of two trial days.
5. Neither party was denied the right to present any evidence at the trial of this matter.
6. The undersigned entered a written Order on or about July 27, 2010 which contained extensive Findings of Fact and Conclusions of law based upon the evidenced [sic] received during the trial in this matter.
7. Since the entry of the July 27, 2010 [order], Defendant has filed numerous Motion[s] requesting that the Order be struck and for a new hearing. At all of these hearings, Defendant produced no new evidence that would warrant a new hearing and all Defendant's previous Motions were denied.
8. At this hearing Defendant again presented no new evidence that would warrant a new hearing and the same shall be dismissed.
9. Defendant's Rule 60 Motion, signed personally by him, was made for the sole purpose of harassment of the Plaintiff and/or an attempt to cause unnecessary increase in the cost of litigation and in violation of Rule 37(a)(2) and Rule 11.
Accordingly, the trial court dismissed defendant's Rule 60 motion, concluding that it lacked merit, and awarded plaintiff attorney's fees. From this order, defendant appeals.
Defendant presents the following issues on appeal: whether the trial court erred by denying his Rule 60 motion where (I) the 9 January 2009 order on issues of temporary custody, post-separation support, child support, and interim distribution were entered in error; (II) the 27 July 2010 equitable distribution order contained several erroneous findings of fact and conclusions of law; and (III) the trial court failed to make sufficient findings of fact in its award of attorney's fees.
Pursuant to Rule 60(b) of the North Carolina Rules of Civil Procedure:
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 adverse party;
(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 the judgment.
N.C. Gen.Stat. § 1A–1, Rule 60(b) (2011).
The standard of review of a trial court's denial of a Rule 60(b) motion is abuse of discretion. Harrington v. Wall, ––– N.C.App. ––––, ––––, 710 S.E.2d 364, 367 (2011). “A ruling committed to a trial court's discretion is to be accorded great deference and will be upset only upon a showing that it was so arbitrary that it could not have been the result of a reasoned decision.” Id. (citing Davis v. Davis, 360 N.C. 518, 523, 631 S.E.2d 114, 118 (2006) (citation omitted)).
I
Defendant argues that that the trial court abused its discretion denying his Rule 60 motion when the 7 January 2009 order on issues of temporary custody, post-separation support, child support, and interim distribution was “without force of [sic] effect because this case was not scheduled for hearing, defendant was not notified or present, and the judge was not authorized to hear matters in chambers on November 7, 2008.”
First, we note that the 7 January 2009 order states that a hearing was held on 7 November 2008 and that both plaintiff and defendant were present, each represented by their own counsel. Further, defendant fails to support his argument with any legal authority. It is well established that “[i]t is ... [d]efendant's duty to comply with the North Carolina Rules of Appellate Procedure and [to] present our Court with an argument, supported by citations to relevant law, for every issue [d]efendant would like our Court to address.” Reams v. Riggan, ––– N.C.App. ––––, ––––, 735 S.E.2d 407, 412 (2012) (citing N.C. R.App. P 28(b)(6)). Accordingly, defendant's argument is dismissed. See Steingress v. Steingress, 350 N.C. 64, 65, 511 S.E.2d 298, 299 (1999).
II
Next, defendant contends the trial court abused its discretion in denying his Rule 60 motion because the trial court erred in making the following findings of fact in the 27 July 2010 equitable distribution order:
14. 6. 2006 220 CC VELOCITY BOAT, VIN # VMP2209zDS: This is a marital asset as it was acquired during the marriage and existed on the [date of separation] and the Court values this asset at $10,300.00.
...
14. 11. “GUITARS AND RECORDING EQUIPMENT: These are all marital assets as they were acquired during the marriage and existed on the [date of separation].”
...
21. The Court has considered the above distributional factors and finds that an equal distribution would be equitable.
Defendant argues that these findings of fact are not supported by the evidence. Defendant also argues that the trial court abused its discretion in entering the following the conclusions of law:
8. That the Court should enter an order equitably dividing the Parties' marital and divisible property and debts.
9. That the Parties' marital and divisible property and debts should be divided and distributed as set forth below and such division and distribution is equitable.
10. That the Court has considered all distributional factors upon which evidence has been presented in making its distribution of property and concludes that an equal distribution as set forth in this order is fair and equitable.
We have stated the applicable standard of review of an equitable distribution award as follows:
Historically our trial courts have been granted wide discretionary powers concerning domestic law cases. The legislature also clearly intended to vest trial courts with discretion in distributing marital property under N.C.G.S. 50–20, but guided always by the public policy expressed therein favoring an equal division.... It is well established that where matters are left to the discretion of the trial court, appellate review is limited to a determination of whether there was a clear abuse of discretion.
Stone v. Stone, 181 N.C.App. 688, 690, 640 S.E.2d 826, 827–28 (2007). “[F]indings of fact made by the trial judge are conclusive on appeal if supported by competent evidence, even if ... there is evidence to the contrary.” Epes v. B.E. Waterhouse, LLC, ––– N.C.App. ––––, ––––, 728 S.E.2d 390, 392 (2012) (citation omitted).
Defendant now requests our review of the trial court's action. However, defendant has failed to include a transcript in the record on appeal of the following: the 24 May 2010 hearing where the trial court heard testimony and received evidence on the issues of equitable distribution, alimony, custody, child support and attorney's fees, and which resulted in entry of the 27 July 2010 equitable distribution order; and the 3 October 2011 hearing where the trial court dismissed defendant's Rule 60 Motion with prejudice and granted plaintiff attorney's fees. Because the record does not include necessary evidence, we may and will presume the findings of fact were supported by competent evidence. See Potts v. Potts, 19 N.C.App. 193, 194, 198 S.E.2d 203, 204 (1973) (“Where there is evidence offered before the trial court and appellant assigns as error that the evidence does not support the findings of fact by the trial judge, but does not include the evidence in the record on appeal, we will presume the facts found are supported by competent evidence.”). Defendant's arguments are overruled.
III
Defendant argues that the trial court abused its discretion by denying his Rule 60 motion where it erroneously awarded plaintiff attorneys fees in the 15 March 2011 order without making sufficient findings of fact or conclusions of law. We agree.
Following a hearing held on 14 December 2010, the trial court entered an order on 15 March 2011 finding that:
9. Plaintiff is statutorily entitled and shall be awarded a sum of attorney's fees incurred in the prosecution of hearings involving contempt, child support, post separation support, custody and alimony issues.
10. The Court finds that the Plaintiff should be awarded attorney's fees in the amount of $24,562.61 and the same shall be paid as set forth in the decretal portion of this Order.
The trial court ordered defendant to pay plaintiff's counsel the sum of $24,562.61 in payments of $1,000.00 starting on 1 January 2011 and due every quarter.
“Where attorneys' fees are properly awarded, the amount of the award rests within the discretion of the trial court and is reviewable on appeal only for an abuse of discretion.” Owensby v.. Owensby, 312 N.C. 473, 475, 322 S.E.2d 772, 774 (1984) (citation omitted). However, “ [o] ur Court has held ... that the trial court must set out the findings of fact upon which the award [of attorney's fees] is made.” Self v. Self, 37 N.C.App. 199, 201, 245 S.E.2d 541, 543 (1978) (citations omitted). “To support the reasonableness of an award for attorney fees, the trial court must make findings regarding the nature and scope of the legal services rendered, the skill and time required, the attorney's hourly rate, and its reasonableness in comparison with that of other lawyers.” Cunningham v. Cunningham, 171 N.C.App. 550, 565–66, 615 S.E.2d 675, 686 (2005) (citations and quotation marks omitted).
Having reviewed the trial court's order and award as to attorney's fees, we find the trial court's findings of fact to be insufficient to determine the reasoning used by the trial court in setting the amount of the award. Therefore, we remand for further findings of fact in accordance with this opinion.
Affirmed in part; dismissed in part; remanded in part. Judges CALABRIA and GEER concur.
Report per Rule 30(e).