IN THE COURT OF APPEALS OF NORTH CAROLINA
2022-NCCOA-705
No. COA22-198
Filed 1 November 2022
Wake County, No. 03 CVD 11249
ALICE BRACEY (formerly Murdock), Plaintiff,
v.
MICHAEL WELBORN MURDOCK, Defendant.
Appeal by defendant from order entered 29 September 2021 by Judge J. Brian
Ratledge in Wake County District Court. Heard in the Court of Appeals 6 September
2022.
Wake Family Law Group, by Nancy Grace, Kelley Cash, and Zach Underwood, for plaintiff-appellee.
Rik Lovett & Associates, by S. Thomas Currin II, for defendant-appellant.
ZACHARY, Judge.
¶1 Defendant Michael Welborn Murdock appeals from the trial court’s order
granting Plaintiff Alice Bracey’s motion to dismiss, dismissing Defendant’s motion
for entry of qualified domestic relations orders (“QDROs”), and dismissing as moot
his other pending motions. After careful review, we affirm.
I. Background
¶2 The trial court granted Plaintiff an absolute divorce from Defendant on 31 BRACEY V. MURDOCK
Opinion of the Court
October 2003, while retaining jurisdiction over, inter alia, both parties’ claims for
equitable distribution. On 28 February 2005, the trial court entered the parties’
consent order and judgment for equitable distribution (the “2005 Consent Order”).
The 2005 Consent Order provides, in pertinent part:
Plaintiff shall retain her 401(k) account and IRA account as her separate property. Plaintiff shall transfer to Defendant $31,618.00, equal to one-half of the date of separation balance in her IRA and $75,203.74, equal to one-half of the date of separation balance of her 401(k) account. The judgment of divorce in the above-entitled action shall be amended to create the tax free transfer of funds from Plaintiff’s IRA account. . . . Defendant’s attorney shall prepare a [QDRO] to create the tax free transfer of funds from Plaintiff’s 401(k) account. Plaintiff shall cooperate in obtaining all information necessary for the preparation of the [QDRO].
The requisite documents were not submitted to the trial court, and the ordered
amounts were not transferred from Plaintiff’s IRA and 401(k) accounts to Defendant.
¶3 On 25 February 2021, nearly 16 years after the entry of the 2005 Consent
Order, Defendant filed a motion for (1) a temporary restraining order, (2) a
preliminary injunction, and (3) “the entry of [QDROs] (or other appropriate orders)
to effectuate the provisions of” the 2005 Consent Order. That same day, the trial court
entered an ex parte order denying Defendant’s motions for a temporary restraining
order and a preliminary injunction.
¶4 On 22 March 2021, Plaintiff moved to dismiss Defendant’s remaining motion BRACEY V. MURDOCK
for the entry of QDROs. On 3 June 2021, Defendant filed a motion to strike, correct,
and/or revise the trial court’s ex parte order. After serving discovery requests upon
Plaintiff, to which Plaintiff obtained extensions of time to respond, on 17 August
2021, Defendant filed a motion to compel discovery from Plaintiff and a motion to
strike Plaintiff’s motions for extensions of time.
¶5 The parties’ several motions came on for hearing on 17 September 2021 in
Wake County District Court. By order entered 29 September 2021, the trial court
granted Plaintiff’s motion to dismiss, dismissed Defendant’s motion for entry of
QDROs, and dismissed as moot Defendant’s motion to strike, correct, and/or revise
the court’s order, motion to strike Plaintiff’s extension motions, and motion to compel
discovery. Specifically, the trial court concluded that “Defendant’s motion for entry of
a [QDRO] does not state a claim upon which relief can be granted because Defendant’s
claim is barred by the statute of limitation[s] pursuant to N.C. Gen. Stat. § 1-47. In
the alternative, the equitable doctrine of laches bars Defendant from obtaining relief.”
¶6 Defendant timely filed notice of appeal.
II. Discussion
¶7 Defendant argues that the trial court erred by concluding that his motion for
entry of QDROs is time-barred by N.C. Gen. Stat. § 1-47 (2021), and that, in the
alternative, his motion is barred by the equitable doctrine of laches. For the reasons
below, we affirm the trial court’s order. BRACEY V. MURDOCK
A. Standard of Review
¶8 Our appellate courts “review a dismissal under Rule 12(b)(6) de novo, viewing
the allegations as true and in the light most favorable to the non-moving party.
Dismissal is proper when the complaint fails to state a claim upon which relief can
be granted.” Christenbury Eye Ctr., P.A. v. Medflow, Inc., 370 N.C. 1, 5, 802 S.E.2d
888, 891 (2017) (citations and internal quotation marks omitted). When conducting
de novo review, this Court “considers the matter anew and freely substitutes its own
judgment for that of the trial court.” Jackson v. Charlotte Mecklenburg Hosp. Auth.,
238 N.C. App. 351, 353, 768 S.E.2d 23, 25 (2014) (citation omitted).
B. Analysis
¶9 This case requires that we determine the nature of Defendant’s motion for
entry of QDROs. Defendant argues that the trial court erred by granting Plaintiff’s
motion to dismiss pursuant to N.C. Gen. Stat. § 1-47, which provides a ten-year
statute of limitations for an action “[u]pon a judgment or decree of any court of the
United States, or of any state or territory thereof, from the date of its entry.” N.C.
Gen. Stat. § 1-47(1). Defendant contends that his motion for the entry of QDROs is
neither an “action” generally nor an “action upon a judgment” as specifically
contemplated by § 1-47. Defendant further asserts that his motion “is also NOT a
‘Claim’ or ‘Action’ governed by the Statute of Limitations at all.” “Rather than
commencing a new action,” Defendant alleges that his motion for the entry of QDROs BRACEY V. MURDOCK
“seeks to finalize the current action.” We disagree.
¶ 10 Upon careful review of Defendant’s motion, it is plain that he does not simply
“seek[ ] to finalize” the 2005 Consent Order or to effectuate its equitable distribution
provisions. The 2005 Consent Order provides that Plaintiff shall make two transfers
to Defendant: one from her 401(k) and one from her IRA, each for a sum certain “equal
to one-half of the date of separation balance” of each account. Yet Defendant’s motion,
although titled “Motion For Entry of [QDROs],” in fact seeks relief beyond the entry
of QDROs to effectuate the 2005 Consent Order’s retirement account provisions. In
this motion, Defendant asserts that he “is entitled to, not only the amounts listed in
the [2005 Consent] Order, but also all passive gains and losses on his portion of the
retirement accounts through the entry of the QDROs[,]” and that he “is in need of,
and entitled to, discovery” to enable him to determine the amounts of the passive
gains and losses on each account. Indeed, he also moves to compel discovery with
regard to the passive gains and losses on the retirement accounts.
¶ 11 As Plaintiff correctly noted in her motion to dismiss, “[t]he 2005 [Consent]
Order does not award Defendant passive gains and losses on the funds[.]” The 2005
Consent Order does not divide the retirement accounts between the parties; it
provides that “Plaintiff shall retain her 401(k) account and IRA account as her
separate property.” Instead, the trial court’s awards of $31,618.00 and $75,203.74 to
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IN THE COURT OF APPEALS OF NORTH CAROLINA
2022-NCCOA-705
No. COA22-198
Filed 1 November 2022
Wake County, No. 03 CVD 11249
ALICE BRACEY (formerly Murdock), Plaintiff,
v.
MICHAEL WELBORN MURDOCK, Defendant.
Appeal by defendant from order entered 29 September 2021 by Judge J. Brian
Ratledge in Wake County District Court. Heard in the Court of Appeals 6 September
2022.
Wake Family Law Group, by Nancy Grace, Kelley Cash, and Zach Underwood, for plaintiff-appellee.
Rik Lovett & Associates, by S. Thomas Currin II, for defendant-appellant.
ZACHARY, Judge.
¶1 Defendant Michael Welborn Murdock appeals from the trial court’s order
granting Plaintiff Alice Bracey’s motion to dismiss, dismissing Defendant’s motion
for entry of qualified domestic relations orders (“QDROs”), and dismissing as moot
his other pending motions. After careful review, we affirm.
I. Background
¶2 The trial court granted Plaintiff an absolute divorce from Defendant on 31 BRACEY V. MURDOCK
Opinion of the Court
October 2003, while retaining jurisdiction over, inter alia, both parties’ claims for
equitable distribution. On 28 February 2005, the trial court entered the parties’
consent order and judgment for equitable distribution (the “2005 Consent Order”).
The 2005 Consent Order provides, in pertinent part:
Plaintiff shall retain her 401(k) account and IRA account as her separate property. Plaintiff shall transfer to Defendant $31,618.00, equal to one-half of the date of separation balance in her IRA and $75,203.74, equal to one-half of the date of separation balance of her 401(k) account. The judgment of divorce in the above-entitled action shall be amended to create the tax free transfer of funds from Plaintiff’s IRA account. . . . Defendant’s attorney shall prepare a [QDRO] to create the tax free transfer of funds from Plaintiff’s 401(k) account. Plaintiff shall cooperate in obtaining all information necessary for the preparation of the [QDRO].
The requisite documents were not submitted to the trial court, and the ordered
amounts were not transferred from Plaintiff’s IRA and 401(k) accounts to Defendant.
¶3 On 25 February 2021, nearly 16 years after the entry of the 2005 Consent
Order, Defendant filed a motion for (1) a temporary restraining order, (2) a
preliminary injunction, and (3) “the entry of [QDROs] (or other appropriate orders)
to effectuate the provisions of” the 2005 Consent Order. That same day, the trial court
entered an ex parte order denying Defendant’s motions for a temporary restraining
order and a preliminary injunction.
¶4 On 22 March 2021, Plaintiff moved to dismiss Defendant’s remaining motion BRACEY V. MURDOCK
for the entry of QDROs. On 3 June 2021, Defendant filed a motion to strike, correct,
and/or revise the trial court’s ex parte order. After serving discovery requests upon
Plaintiff, to which Plaintiff obtained extensions of time to respond, on 17 August
2021, Defendant filed a motion to compel discovery from Plaintiff and a motion to
strike Plaintiff’s motions for extensions of time.
¶5 The parties’ several motions came on for hearing on 17 September 2021 in
Wake County District Court. By order entered 29 September 2021, the trial court
granted Plaintiff’s motion to dismiss, dismissed Defendant’s motion for entry of
QDROs, and dismissed as moot Defendant’s motion to strike, correct, and/or revise
the court’s order, motion to strike Plaintiff’s extension motions, and motion to compel
discovery. Specifically, the trial court concluded that “Defendant’s motion for entry of
a [QDRO] does not state a claim upon which relief can be granted because Defendant’s
claim is barred by the statute of limitation[s] pursuant to N.C. Gen. Stat. § 1-47. In
the alternative, the equitable doctrine of laches bars Defendant from obtaining relief.”
¶6 Defendant timely filed notice of appeal.
II. Discussion
¶7 Defendant argues that the trial court erred by concluding that his motion for
entry of QDROs is time-barred by N.C. Gen. Stat. § 1-47 (2021), and that, in the
alternative, his motion is barred by the equitable doctrine of laches. For the reasons
below, we affirm the trial court’s order. BRACEY V. MURDOCK
A. Standard of Review
¶8 Our appellate courts “review a dismissal under Rule 12(b)(6) de novo, viewing
the allegations as true and in the light most favorable to the non-moving party.
Dismissal is proper when the complaint fails to state a claim upon which relief can
be granted.” Christenbury Eye Ctr., P.A. v. Medflow, Inc., 370 N.C. 1, 5, 802 S.E.2d
888, 891 (2017) (citations and internal quotation marks omitted). When conducting
de novo review, this Court “considers the matter anew and freely substitutes its own
judgment for that of the trial court.” Jackson v. Charlotte Mecklenburg Hosp. Auth.,
238 N.C. App. 351, 353, 768 S.E.2d 23, 25 (2014) (citation omitted).
B. Analysis
¶9 This case requires that we determine the nature of Defendant’s motion for
entry of QDROs. Defendant argues that the trial court erred by granting Plaintiff’s
motion to dismiss pursuant to N.C. Gen. Stat. § 1-47, which provides a ten-year
statute of limitations for an action “[u]pon a judgment or decree of any court of the
United States, or of any state or territory thereof, from the date of its entry.” N.C.
Gen. Stat. § 1-47(1). Defendant contends that his motion for the entry of QDROs is
neither an “action” generally nor an “action upon a judgment” as specifically
contemplated by § 1-47. Defendant further asserts that his motion “is also NOT a
‘Claim’ or ‘Action’ governed by the Statute of Limitations at all.” “Rather than
commencing a new action,” Defendant alleges that his motion for the entry of QDROs BRACEY V. MURDOCK
“seeks to finalize the current action.” We disagree.
¶ 10 Upon careful review of Defendant’s motion, it is plain that he does not simply
“seek[ ] to finalize” the 2005 Consent Order or to effectuate its equitable distribution
provisions. The 2005 Consent Order provides that Plaintiff shall make two transfers
to Defendant: one from her 401(k) and one from her IRA, each for a sum certain “equal
to one-half of the date of separation balance” of each account. Yet Defendant’s motion,
although titled “Motion For Entry of [QDROs],” in fact seeks relief beyond the entry
of QDROs to effectuate the 2005 Consent Order’s retirement account provisions. In
this motion, Defendant asserts that he “is entitled to, not only the amounts listed in
the [2005 Consent] Order, but also all passive gains and losses on his portion of the
retirement accounts through the entry of the QDROs[,]” and that he “is in need of,
and entitled to, discovery” to enable him to determine the amounts of the passive
gains and losses on each account. Indeed, he also moves to compel discovery with
regard to the passive gains and losses on the retirement accounts.
¶ 11 As Plaintiff correctly noted in her motion to dismiss, “[t]he 2005 [Consent]
Order does not award Defendant passive gains and losses on the funds[.]” The 2005
Consent Order does not divide the retirement accounts between the parties; it
provides that “Plaintiff shall retain her 401(k) account and IRA account as her
separate property.” Instead, the trial court’s awards of $31,618.00 and $75,203.74 to
Defendant were distributive awards. “A distributive award is a sum certain and does BRACEY V. MURDOCK
not include gains and/or losses.” Harris v. Harris, 162 N.C. App. 511, 517, 591 S.E.2d
560, 563 (2004). Accordingly, Defendant actually seeks to amend or modify the 2005
Consent Order to include passive gains and losses, rather than to finalize or
effectuate its provisions.
¶ 12 “Because motions are properly treated according to their substance rather than
their labels, we treat [Defendant]’s motion for what it really was, namely, a Rule 59
motion” to amend the 2005 Consent Order. Scott v. Scott, 106 N.C. App. 379, 382, 416
S.E.2d 583, 585 (1992) (citation omitted). A Rule 59 motion to amend a judgment
must “be served not later than 10 days after entry of the judgment.” N.C. Gen. Stat.
§ 1A-1, Rule 59(e). Therefore, “because [Defendant]’s motion was made well beyond
the 10-day limit, [his] motion to amend was not timely” and was properly dismissed.
Scott, 106 N.C. App. at 382, 416 S.E.2d at 585.
¶ 13 Moreover, Defendant’s attempt to modify the 2005 Consent Order is hindered
by its status as a consent judgment. “A consent judgment incorporates the bargained
agreement of the parties. Such a judgment can only be attacked on limited grounds.
The party attacking the judgment must properly allege and prove that consent was
not in fact given, or that it was obtained by mutual mistake or fraud.” Stevenson v.
Stevenson, 100 N.C. App. 750, 752, 398 S.E.2d 334, 336 (1990) (citation omitted). The
trial court entered the 2005 Consent Order “with the consent of the parties,” and
Defendant does not allege either that “consent was not in fact given,” or that the 2005 BRACEY V. MURDOCK
Consent Order “was obtained by mutual mistake or fraud.” Id. Therefore, the trial
court did not err by granting Plaintiff’s motion to dismiss and dismissing Defendant’s
motion.
¶ 14 “Where a trial court has reached the correct result, the judgment will not be
disturbed on appeal even where a different reason is assigned to the decision.” Eways
v. Governor’s Island, 326 N.C. 552, 554, 391 S.E.2d 182, 183 (1990). As a result, “a
trial court’s ruling must be upheld if it is correct upon any theory of law, and thus it
should not be set aside merely because the court gives a wrong or insufficient reason
for it.” Templeton v. Town of Boone, 208 N.C. App. 50, 54, 701 S.E.2d 709, 712 (2010)
(citations and internal quotation marks omitted). Although our analysis relies on
neither a statute of limitations nor the equitable doctrine of laches, after conducting
de novo review and “consider[ing] the matter anew and freely substitut[ing our] own
judgment for that of the trial court[,]” Jackson, 238 N.C. App. at 353, 768 S.E.2d at
25 (citation omitted), we nevertheless uphold the trial court’s ruling.
III. Conclusion
¶ 15 For the foregoing reasons, the trial court’s order is affirmed.
AFFIRMED.
Judge GORE concurs.
Judge JACKSON concurs in the result only.