Hackett v. Hackett

• Court: Court of Appeals of North Carolina
• Decided: July 15, 2026
• Docket: 25-163
• Status: Unpublished
• Author: Judge Jeff Carpenter

Opinion

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA25-163

Filed 15 July 2026

Randolph County, No. 20CVD001988-750

MICHELLE RENEE HACKETT, Plaintiff,

v.

DARREN ANDREW HACKETT, Defendant.

Appeal by Plaintiff from order entered 9 August 2024 by Judge Barron L.

Thompson in Randolph County District Court. Heard in the Court of Appeals 9

September 2025.

Law Office of Lee M. Cecil, by Lee M. Cecil, for Plaintiff-Appellant.

Kreider Law, PLLC, by Jonathan G. Kreider, for Defendant-Appellee.

CARPENTER, Judge.

Michelle Renee Hackett (“Plaintiff”) appeals from the trial court’s 9 August

2024 order (the “Order”), granting the motion for summary judgment filed by Darren

Andrew Hackett (“Defendant”). On appeal, Plaintiff argues the trial court erred by

granting Defendant’s motion for summary judgment. After careful review, we affirm

the Order. HACKETT V. HACKETT

Opinion of the Court

I. Factual & Procedural Background

Plaintiff and Defendant were married in 1994. During their marriage,

Plaintiff and Defendant had two children who have since reached the age of majority.

Plaintiff and Defendant both worked at a business owned and operated by

Defendant’s parents. Plaintiff and Defendant organized numerous other property

management businesses together during their marriage, with Plaintiff as the

majority owner. Additionally, Plaintiff obtained her real estate license and formed a

real estate business. On 24 December 2019, Plaintiff and Defendant separated, and

Defendant moved out of the marital residence. Many of the businesses co-owned by

Plaintiff and Defendant have since been dissolved.

On 10 November 2020, Plaintiff filed a complaint (the “Complaint”) against

Defendant, asserting claims for post-separation support, alimony, equitable

distribution, and attorney’s fees. On 21 January 2021, Defendant filed a motion to

dismiss, answer, and motion for injunctive relief. In his motion for injunctive relief,

Defendant requested that the trial court order Plaintiff to return business funds and

restrain Plaintiff from taking future distributions from businesses that belonged to

both Plaintiff and Defendant during their marriage.

In Plaintiff’s post-separation and alimony affidavit, Plaintiff contended that

she needed $5,959.36 per month. Plaintiff’s affidavit further indicated she had an

income of $3,000 per month, received a net rental income of $128,361 between 2021

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and 2023 from marital properties, and earned over $10,000 a month in gross rents

from income-producing properties. Defendant’s post-separation and alimony

affidavit stated that Defendant needed $1,624.00 per month, had a net income of

$1,937.33 per month, and did not generate regular income from his rental properties.

The trial court heard Plaintiff’s claim for post-separation support on 19 April

2021 and denied it on 14 July 2021. On 10 April 2023, the trial court entered an

equitable distribution pre-trial order, and trial began the same day. On 23 August

2024, the trial court entered an order concerning equitable distribution, awarding

Plaintiff $1,471,450.82 and Defendant $1,545,196.05. The trial court concluded such

distribution was equitable in light of the nature of Plaintiff’s and Defendant’s

properties and each of their preferences.

On 10 April 2024, Defendant filed a motion for summary judgment on the

issues of post-separation support and alimony, which the trial court heard on 8

August 2024. On 9 August 2024, the trial court entered the Order granting

Defendant’s motion for summary judgment as to Plaintiff’s claim for alimony because

the trial court had already denied Plaintiff’s post-separation support claim. That

same day, the trial court emailed Plaintiff and Defendant, explaining its reasoning.

In the email, the trial court wrote that “the pleading for alimony falls short of the

required Rule 8 pleading standard” when “[r]ead in light of Quesinberry v.

Quesinberry, 210 N.C. App. 578, 709 S.E.2d 367[.]” The trial court continued,

“[B]ased on the information previously provided to and ruled upon by the court . . . I

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do not believe the Defendant could be found to be a supporting spouse and the

Plaintiff to be a dependent spouse.” On 15 August 2024, Plaintiff timely filed written

notice of appeal.

II. Jurisdiction

As an initial matter, we must determine whether this Court has jurisdiction to

hear this appeal. Plaintiff admits this appeal is interlocutory because claims remain

pending in the divorce action.

Ordinarily, “there is no right of immediate appeal from interlocutory orders

and judgments.” Sharpe v. Worland, 351 N.C. 159, 161, 522 S.E.2d 577, 578 (1999)

(citations omitted). Nevertheless, “our General Assembly provides a litigant the

option to appeal an interlocutory judgment resolving a domestic claim either before

all domestic claims have been resolved or when all claims have been resolved.”

Watson v. Watson, 288 N.C. App. 265, 267, 885 S.E.2d 858, 860 (2023) (emphasis in

original). The domestic claims which are interlocutory but otherwise appealable

under the statute include “a claim for absolute divorce, divorce from bed and board,

the validity of a premarital agreement . . . , child custody, child support, alimony, or

equitable distribution . . . .” N.C. Gen. Stat. § 50-19.1 (2025). Thus, this Court has

jurisdiction pursuant to N.C. Gen. Stat. § 50-19.1 (2025).

III. Issue

The issue is whether the trial court erred by granting Defendant’s motion for

summary judgment.

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IV. Analysis

Plaintiff argues the trial court erred in granting Defendant’s motion for

summary judgment. First, Plaintiff contends the trial court applied the incorrect

standard for summary judgment. Second, Plaintiff asserts the trial court improperly

considered matters outside the scope of summary judgment. Finally, Plaintiff argues

that genuine issues of material fact remain with respect to Plaintiff’s alimony claim.

We address each in turn.

“On appeal, an order allowing summary judgment is reviewed de novo.”

Howerton v. Arai Helmet, Ltd., 358 N.C. 440, 470, 597 S.E.2d 674, 693 (2004).

“ ‘Under a de novo review, [this Court] considers the matter anew and freely

substitutes its own judgment’ for that of the lower tribunal.” Craig v. New Hanover

Cnty. Bd. of Educ., 363 N.C. 334, 337, 678 S.E.2d 351, 354 (2009) (quoting In re Greens

of Pine Glen Ltd. P’ship, 356 N.C. 642, 647, 576 S.E.2d 316, 319 (2003)).

A. Summary Judgment Standard

Plaintiff first argues the trial court—in an email—erred by improperly

applying the standard for a motion to dismiss under Rule 12(b)(6) instead of the

standard for a motion for summary judgment under Rule 56(c). We disagree.

Summary judgment is appropriate “if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that

there is no genuine issue as to any material fact and that any party is entitled to a

judgment as a matter of law.” N.C. Gen. Stat. § 1A-1, Rule 56(c) (2025). “When

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considering a motion for summary judgment, the trial judge must view the presented

evidence in a light most favorable to the nonmoving party. All inferences of fact must

be drawn against the movant and in favor of the nonmovant.” Strickland v. Hedrick,

194 N.C. App. 1, 9, 669 S.E.2d 61, 67 (2008) (internal marks and citations omitted).

On a summary judgment motion, “[t]he trial judge’s comments during the

hearing as to . . . law are not controlling; the written court order as entered is

controlling.” Fayetteville Publ’g Co. v. Advanced Internet Tech., Inc., 192 N.C. App.

419, 425, 665 S.E.2d 518, 522 (2008) (citation omitted). Moreover, “the trial court

[has] the authority to enter an order that [is] different from the court’s oral

statements during the hearing.” Scoggin v. Scoggin, 250 N.C. App. 115, 116, 791

S.E.2d 524, 525 (2016).

Here, the trial court’s email, like a trial court’s oral comments made in a

hearing, is not controlling. See id. at 116, 791 S.E.2d at 525. While the trial court

should not have explained its reasoning in an email, the trial court made its final

ruling through its Order, not through its email before entry of the Order. See

Fayetteville Publ’g Co., 192 N.C. App. at 425, 665 S.E.2d at 522. Thus, we confine our

review to the Order from which Plaintiff appeals.

In the Order, the trial court applied the proper summary judgment standard.

See N.C. Gen. Stat. § 1A-1, Rule 56(c). Specifically, the trial court stated, “[B]ased

upon matters on the file, the testimony and evidence received, and the arguments of

the parties, there is no genuine issue as to any material fact and that Defendant is

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entitled to judgment as a matter of law.” Because the Order reveals the trial court

applied the proper summary judgment standard, the trial court did not err. See id.

B. Scope of Summary Judgment

Plaintiff next argues the trial court improperly considered matters outside the

scope of summary judgment. Plaintiff asserts that the trial court considered

information revealed in the post-separation and equitable distribution proceedings,

thereby leaving this Court to rely solely on the trial judge’s personal memory. We

disagree.

“[A] judge’s own personal memory is not evidence.” Hensey v. Hennessy, 201

N.C. App. 56, 67, 685 S.E.2d 541, 549 (2009). “The trial court does not have authority

to issue an order based solely upon the court’s own personal memory of another

entirely separate proceeding[.]” Id. at 67, 685 S.E.2d at 549.

Here, we do not need to rely on the trial judge’s personal memory because we

review the sufficiency of the record. See id. at 67, 685 S.E.2d at 549. This includes

the Complaint; Defendant’s motion to dismiss, answer, and motion for injunctive

relief; Plaintiff’s and Defendant’s financial affidavits regarding post-separation

support and alimony; the Order denying post-separation support; and the trial court’s

order on equitable distribution. Thus, the trial court considered competent evidence,

including “the pleadings, depositions, answers to interrogatories, and admissions on

file, together with the affidavits” in deciding Defendant’s motion for summary

judgment with respect to Plaintiff’s alimony claim. See N.C. Gen Stat. § 1A-1, Rule

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56(c). Despite the trial court’s ill-advised email, the trial court did not prejudicially

exceed the scope of summary judgment. See id.

C. Issues of Material Fact

Finally, Plaintiff argues the trial court improperly granted Defendant’s motion

for summary judgment because genuine issues of material fact remained as to

Plaintiff’s claim for alimony. According to Plaintiff, the trial court did not properly

consider Plaintiff’s and Defendant’s expenses. We disagree.

For summary judgment purposes, an issue is genuine if it “may be maintained

by substantial evidence.” Koontz v. City of Winston-Salem, 280 N.C. 513, 518, 186

S.E.2d 897, 901 (1972). A fact is material if it “would constitute a legal defense, or

would affect the result of the action or if its resolution would prevent the party against

whom it is resolved from prevailing in the action.” Id. at 518, 186 S.E.2d at 901.

“The party moving for summary judgment bears the burden of establishing

that there is no triable issue of material fact.” DeWitt v. Eveready Battery Co., 355

N.C. 672, 681, 565 S.E.2d 140, 146 (2002) (internal citation omitted). “This burden

may be met ‘by proving that an essential element of the opposing party’s claim is

nonexistent, or by showing through discovery that the opposing party cannot produce

evidence to support an essential element of his claim or cannot surmount an

affirmative defense which would bar the claim.’ ” Id. at 681–82, 565 S.E.2d at 146

(quoting Collingwood v. Gen. Elec. Real Estate Equities, Inc., 324 N.C. 63, 66, 376

S.E.2d 425, 427 (1989)).

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A party seeking alimony must show that: “(1) that party is a dependent spouse;

(2) the other party is a supporting spouse; and (3) an award of alimony would be

equitable under all the relevant factors.” Barrett v. Barrett, 140 N.C. App. 369, 371,

536 S.E.2d 642, 644 (2000). A dependent spouse is one “who is actually substantially

dependent upon the other spouse for his or her maintenance and support or is

substantially in need of maintenance and support from the other spouse.” N.C. Gen.

Stat. § 50-16.1A(2) (2025). “Actually substantially dependent” requires that “the

party seeking alimony would be actually unable to maintain the accustomed standard

of living [established before separation] from his or her own means.” Williams v.

Williams, 299 N.C. 174, 181, 261 S.E.2d 849, 855 (1980).

To determine whether a spouse is actually substantially dependent, the trial

court considers the following factors:

(1) the accustomed standard of living of the parties prior to the separation, (2) the income and expenses of each of the parties at the time of the trial, (3) the value of the estates, if any, of both spouses at the time of the hearing, and (4) “the length of [the] marriage and the contribution each party has made to the financial status of the family over the years.”

Hunt v. Hunt, 112 N.C. App. 722, 726–27, 436 S.E.2d 856, 859 (1993) (quoting

Williams, 299 N.C. at 185, 261 S.E.2d at 857). Ordinarily, a dependent spouse is one

whose expenses exceed their monthly income, with no other means to pay those

expenses. See Kabasan v. Kabasan, 257 N.C. App. 436, 467, 810 S.E.2d 691, 710

(2018).

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Here, in the light most favorable to Plaintiff, see Strickland, 194 N.C. App. at

9, 669 S.E.2d at 67, the parties maintained an above-average standard of living, and

both parties had “plenty of cash to do what they want during marriage, which is not

accounted for[,]” see Hunt, 112 N.C. App. at 726–27, 436 S.E.2d at 859. The record

shows that, despite Plaintiff’s contention that she needed $5,959.36 per month, had

an income of $3,000 per month, received a net rental income of $128,361 between

2021 and 2023, and earned over $10,000 a month in rents. The record also shows

that Defendant asserted he needed $1,624.00 per month, despite having a net income

of $1,937.33 per month and no income-generating rental properties. Thus, Plaintiff

operated at a monthly surplus, particularly given her high income. Accordingly, this

factor tends to show that Plaintiff is not a dependent spouse. See id. at 726–27, 436

S.E.2d at 859; Kabasan, 257 N.C. App. at 467, 810 S.E.2d at 710.

The record also shows that Defendant and his family contributed to the marital

estate. See Hunt, 112 N.C. at 726–27, 436 S.E.2d at 859. Specifically, Defendant and

his family purchased and helped manage the rental properties from which Plaintiff

collected income. The trial court recognized that contribution and divided the estate

equitably into $1,471,450.82 for Plaintiff and $1,545,196.05 for Defendant. Thus, the

relative contribution factor further supports that Plaintiff is not a dependent spouse

because Defendant and his family made significant contributions to the marital

estate. See id. at 726–27, 436 S.E.2d at 859.

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Consequently, Defendant’s forecast of evidence establishes that no genuine

issue of material fact remained with respect to Plaintiff’s claim that she is a

dependent spouse. See Barrett, 140 N.C. App. at 371, 536 S.E.2d at 644; Kabasan,

257 N.C. App. at 467, 810 S.E.2d at 710. Thus, there are no genuine issues of material

fact regarding Plaintiff’s claim for alimony. See N.C. Gen. Stat. § 1A-1, Rule 56(c).

Accordingly, the trial court did not err by granting summary judgment for Defendant.

See Kabasan, 257 N.C. App. at 467, 810 S.E.2d at 710.

V. Conclusion

Because the trial court applied the proper standard for summary judgment,

did not improperly consider matters outside the scope of summary judgment, and

properly concluded that no genuine issue of material fact existed as to Plaintiff’s

alimony claim, the trial court did not err by granting Defendant’s motion for summary

judgment. Accordingly, we affirm the Order.

AFFIRMED.

Judges COLLINS and FLOOD concur.

Report per Rule 30(e).

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