Macher v. Macher

656 S.E.2d 282, 188 N.C. App. 537, 2008 N.C. App. LEXIS 219
CourtCourt of Appeals of North Carolina
DecidedFebruary 5, 2008
DocketNo. COA07-164.
StatusPublished
Cited by6 cases

This text of 656 S.E.2d 282 (Macher v. Macher) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Macher v. Macher, 656 S.E.2d 282, 188 N.C. App. 537, 2008 N.C. App. LEXIS 219 (N.C. Ct. App. 2008).

Opinions

STEPHENS, Judge.

Abe Morris Macher ("Defendant") appeals from an order denying his motion for Rule *28360(b) relief from a divorce judgment entered 28 October 1998. We affirm.

Ollie Mae Macher, n/k/a Ollie Mae Harris, ("Plaintiff') and Defendant were married on 15 July 1993. The parties resided in Maryland until 1996, when Plaintiff moved to North Carolina. The parties separated on 27 May 1997.

At 11:36 a.m. on 28 October 1998, Plaintiff filed a complaint for absolute divorce.1 Several documents were filed in the action later that afternoon. At 1:52 p.m., an uncaptioned pleading was filed which stated:

I am Answering 98 CVD 708, a Complaint for Divorce my Wife has filed in Granville County. I am the Defendant. I admit all of the allegations. I acknowledge that I have been served with the Complaint. I am a Medical Doctor in Bethesda, Maryland[,] and have traveled to North Carolina today to expedite my Divorce. I do not wish to retain an attorney in this matter. With the upcoming wedding this weekend, I wholeheartedly consent to the Divorce. I hereby waive any further notice of hearing, and am aware that my wife's attorney will be seeking a Divorce today[,] October 28[,] 1998[,] by way of Summary Judgment, and I consent to that[.]

Sincerely,

/s/ Abe Morris Macher, MD

This pleading (the "answer") also contained a notary's signature and stamp, and the following notarial certificate: "Sworn to and Subscribed before me on this the 28 day of October, 98." At 1:53 p.m., Plaintiff filed a motion for summary judgment, asking the trial court to grant an absolute divorce. The summary judgment motion contained the signature, "Abe Morris Macher, MD[,]" and the same notarial certificate as was contained on the answer. At 2:07 p.m., Plaintiff filed a divorce judgment, signed by the Honorable J. Henry Banks, dissolving the bonds of matrimony between the parties.

On or about 16 February 2006, Defendant was served with a summons to appear in federal court on seven charges of embezzling money from the United States government, his employer. The affidavit in support of the federal criminal complaint alleged that Defendant, knowing that the parties were divorced, had claimed Plaintiff as a dependent wife on a federal government housing allowance form each year from 1999 to 2005.

On 28 August 2006, Defendant filed a Rule 60(b) motion for relief from the 1998 divorce judgment on the ground that the judgment was void and should be set aside. In support of the motion, Defendant filed two affidavits: one by Defendant and one by a former wife of Defendant. Both Defendant and the former wife swore that the signatures on the answer and summary judgment motion were not Defendant's signatures.

A hearing on Defendant's Rule 60(b) motion was held 21 November 2006 by Judge Banks. The trial court heard testimony from the notary, Plaintiffs attorney in the divorce proceeding, and Defendant. Additionally, Defendant entered in evidence exhibits which, Defendant contended supported his testimony that the signatures on the answer and motion for summary judgment were not his. The former wife's affidavit was not entered in evidence. That day, Judge Banks entered an order denying Defendant's Rule 60(b) motion. From this order, Defendant appeals.

The standard of review of a trial court's denial of a Rule 60(b) motion is abuse of discretion. Davis v. Davis, 360 N.C. 518, 631 S.E.2d 114 (2006). A trial court may be reversed for abusing its discretion only upon a showing that its ruling was "`manifestly unsupported by reason.'" Id. at 523, 631 S.E.2d at 118 (quoting Clark v. Clark, 301 N.C. 123, 129, 271 S.E.2d 58, 63 (1980)). "`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, (quoting White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985)).

"Rule 60(b)(4) provides relief from judgments that are void...." Freeman v.

*284Freeman, 155 N.C.App. 603, 606, 573 S.E.2d 708, 711 (2002), disc. review denied, 357 N.C. 250, 582 S.E.2d 32 (2003); see also N.C. Gen.Stat. § 1A-1, Rule 60(b) (2005). A judgment against a defendant is void where the court was without personal jurisdiction. Freeman, 155 N.C.App. 603, 573 S.E.2d 708. "Jurisdiction over the person of a defendant is obtained by service of process upon him, by his voluntary appearance, or consent." Hale v. Hale, 73 N.C.App. 639, 641, 327 S.E.2d 252, 253 (1985) (citing In re Peoples, 296 N.C. 109, 250 S.E.2d 890 (1978), cert. denied,

Related

Slattery v. Appy City, LLC
Supreme Court of North Carolina, 2024
In re: Chastain
Court of Appeals of North Carolina, 2023
State v. Johnson
Supreme Court of North Carolina, 2021
In re S.E.T.
Supreme Court of North Carolina, 2020
In re A.J.C.
817 S.E.2d 475 (Court of Appeals of North Carolina, 2018)

Cite This Page — Counsel Stack

Bluebook (online)
656 S.E.2d 282, 188 N.C. App. 537, 2008 N.C. App. LEXIS 219, Counsel Stack Legal Research, https://law.counselstack.com/opinion/macher-v-macher-ncctapp-2008.