Kolendo v. Kolendo

Court of Appeals of North Carolina

Kolendo v. Kolendo

243 S.E.2d 907, 36 N.C. App. 385, 1978 N.C. App. LEXIS 2490

Court of Appeals of North Carolina·Decided May 16, 1978·No. 7728SC507·Published·Cited by 4 cases

Opinion

HEDRICK, Judge.

A motion made pursuant to Rule 60(b) of the North Carolina Rules of Civil Procedure, G.S. 1A-1, is addressed to the discretion of the trial court. Sink v. Easter, 288 N.C. 183, 217 S.E. 2d 532 (1975). The decision of the trial court is not reviewable on appeal absent a showing of abuse of discretion. Sink v. Easter, supra.

In the present case neither party requested the judge to make findings of fact, and consequently, none were made. According to G.S. 1A-1, Rule 52(a), if no request is made by the parties to a hearing on a motion, then the trial judge is not required to find the facts upon which he bases his ruling. And “[i]n such case, it will be presumed that the judge, upon proper evidence, found facts sufficient to support his judgment.” Haiduven v. Cooper, 23 N.C. App. 67, 69, 208 S.E. 2d 223, 225 (1974). Thus, when no findings are made there is nothing for the appellate court to review. Holcomb v. Holcomb, 192 N.C. 504, 135 S.E. 287 (1926).

Affirmed.

Chief Judge BROCK and Judge MITCHELL concur.

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HEDRICK, Judge.

A motion made pursuant to Rule 60(b) of the North Carolina Rules of Civil Procedure, G.S. 1A-1, is addressed to the discretion of the trial court. Sink v. Easter, 288 N.C. 183, 217 S.E. 2d 532 (1975). The decision of the trial court is not reviewable on appeal absent a showing of abuse of discretion. Sink v. Easter, supra.

In the present case neither party requested the judge to make findings of fact, and consequently, none were made. According to G.S. 1A-1, Rule 52(a), if no request is made by the parties to a hearing on a motion, then the trial judge is not required to find the facts upon which he bases his ruling. And “[i]n such case, it will be presumed that the judge, upon proper evidence, found facts sufficient to support his judgment.” Haiduven v. Cooper, 23 N.C. App. 67, 69, 208 S.E. 2d 223, 225 (1974). Thus, when no findings are made there is nothing for the appellate court to review. Holcomb v. Holcomb, 192 N.C. 504, 135 S.E. 287 (1926).

Affirmed.

Chief Judge BROCK and Judge MITCHELL concur.

Kolendo v. Kolendo, 243 S.E.2d 907, 36 N.C. App. 385, 1978 N.C. App. LEXIS 2490 (N.C. Ct. App. 1978).

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Opinion

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