Watson v. Watson

455 S.E.2d 866, 118 N.C. App. 534, 1995 N.C. App. LEXIS 294
CourtCourt of Appeals of North Carolina
DecidedApril 18, 1995
DocketNo. 9418DC426
StatusPublished
Cited by2 cases

This text of 455 S.E.2d 866 (Watson v. Watson) 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
Watson v. Watson, 455 S.E.2d 866, 118 N.C. App. 534, 1995 N.C. App. LEXIS 294 (N.C. Ct. App. 1995).

Opinion

WALKER, Judge.

Plaintiff and defendant were married on 31 July 1976 and were separated on 12 June 1991. Subsequently, on 13 September 1991, defendant filed an action for alimony, child custody and support, interim and injunctive relief, and attorney’s fees. On 20 July 1992, plaintiff filed an action for absolute divorce and equitable distribution. Plaintiff was granted an absolute divorce on 12 October 1992. The parties’ equitable distribution hearing was held on 8 June 1993. At the conclusion of the hearing, the trial court announced a tentative judgment and postponed entry of a final written judgment.

Subsequently, defendant’s attorney prepared drafts of alternative judgments and filed a motion in the cause in the equitable distribution action. The motion, which contained copies of the alternative draft judgments designated as Exhibits A and B, prayed that judgment be entered in the manner described in'Exhibit B. Exhibit A was a narrative of the court’s tentative judgment of 8 June 1993. It provided for sale of the parties’ residence and an equal division of the net proceeds after certain reimbursements were made. Either party was permitted to buy out the other’s interest in the residence, but defendant was given first priority in a buy-out. Exhibit B provided that plaintiff transfer his equity in the residence valued at $9,230.64 to defendant in satisfaction of $10,804.00 in child support and alimony arearrages and attorney’s fees which plaintiff owed defendant.

On 30 August 1993, the parties appeared for a hearing on plaintiff’s motion for equitable distribution, defendant’s motion to “show [537]*537cause,” and defendant’s motion for permanent alimony and child support. At that time, the parties informed the court that they had agreed to the entry of judgment in accordance with Exhibit B, with several changes. Defendant’s attorney explained these changes and also noted that plaintiffs attorney held a deed by which plaintiff was conveying his interest in the residence to defendant.

Thereafter, the court asked defendant whether she understood what her attorney had said, whether she understood what the order and judgment accomplishes and what was contained in the twelve-page order, and whether she agreed “to the entry of that order by me settling these matters . . . between you and [plaintiff].” Defendant replied, “Yes,” to each inquiry. The court then asked plaintiff whether he understood what defendant’s attorney was saying, whether he “read through or do you understand the terms of this twelve-page judgment and order,” and whether he agreed to entering that order as modified by the deletion of two sentences. To each of these inquiries, plaintiff also replied, “Yes.”

On 8 September 1993, the court entered an order and judgment in the parties’ equitable distribution action in accord with Exhibit B. Plaintiff filed notice of appeal from this order. Subsequently, defendant filed a motion pursuant to N.C. Gen. Stat. § 1A-1, Rule 60(a) (1990) to correct the judgment on grounds that “by oversight reference to the fact that the parties in open court on August 30, 1993, voluntarily consented to the entry of the findings of fact and conclusions of law and the court’s decree was omitted.” By order entered 11 April 1994, the trial court granted defendant’s motion.

Plaintiff argues that the order of 8 September 1994 should be vacated because the trial court’s inquiry regarding the proposed distribution of marital property failed to meet the requirements of McIntosh v. McIntosh, 74 N.C. App. 554, 556, 328 S.E.2d 600, 602 (1985), where the court held that:

[where] oral stipulations [concerning marital property] are not reduced to writing it must affirmatively appear in the record that the trial court made contemporaneous inquiries of the parties at the time the stipulations were entered into. It should appear that the court read the terms of the stipulations to the parties; that the parties understood the legal effects of their agreement and the terms of the agreement, and agreed to abide by those terms of their own free will.

[538]*538“This procedure is to insure that each party’s rights are protected and to prevent fraud and overreaching on the part of either spouse.” Id.

Plaintiff argues that the court’s inquiry was insufficient to satisfy the requirements of McIntosh because it did not read the terms of the proposed order and there is nothing to show that the parties read and understood the proposed order. In McIntosh, this Court considered whether an order dividing the parties’ marital property according to their oral stipulations was valid where the trial court made “[n]o inquiry . . . into the parties’.understanding of the legal effect of their agreement or the terms of their agreement” and “[t]he stipulations were not reduced to writing nor were they acknowledged by the parties as accurately reflecting their agreement.” McIntosh, 74 N.C. App. at 555-56, 328 S.E.2d at 601. The Court stated, “[w]e believe that failure of the trial court to make such inquiries and/or the parties’ failure to reduce the stipulations to writing is inadequate to protect. . . the rights of the parties.” The court found support for this belief in N.C. Gen. Stat. § 50-20(d) (1994), which provides that the parties may “by written agreement, duly executed and acknowledged in accordance with the provisions of G.S. 52-10 and 52-10.1, or by a written agreement valid in the jurisdiction where executed, provide for distribution of the marital property ... and the agreement shall be binding on [them].” Id.

The Court stated that it believed that N.C. Gen. Stat. § 50-20(d) was enacted to insure against fraud and overreaching on the part of one of the spouses and noted that to be valid, “ ‘a separation agreement must be untainted by fraud, must be in all respects fair, reasonable and just, and must have been entered into without coercion or the exercise of undue influence, and with full knowledge of all the circumstances, conditions, and rights of the contracting parties.’ ” Id. at 556, 328 S.E.2d at 602 (quoting Johnson v. Johnson, 67 N.C. App. 250, 255, 313 S.E.2d 162, 165 (1984)).

Here the record establishes the following facts from which it reasonably appears that the parties understood the terms of the proposed distribution of marital property: (1) both parties were represented by counsel, (2) the parties had participated in an equitable distribution hearing on 8 June 1993, (3) Exhibit B was filed with a motion in the cause in this action on 24 August 1993 and served on plaintiff’s counsel, (4) the major asset in the case was the marital home encumbered by a deed of trust and unpaid tax lien, and (5) the parties indicated that they either read or understood the terms of the [539]*539proposed distribution. We do not construe McIntosh as requiring the trial court to read to the parties in open court the terms of the proposed distribution of marital property under these circumstances. Moreover, we note that plaintiff does not allege that he neither read nor understood the terms of the order. Assuming arguendo that plaintiff neither read nor understood the order, plaintiff does not argue that he was prejudiced and we find no prejudice. We thus affirm.

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Cite This Page — Counsel Stack

Bluebook (online)
455 S.E.2d 866, 118 N.C. App. 534, 1995 N.C. App. LEXIS 294, Counsel Stack Legal Research, https://law.counselstack.com/opinion/watson-v-watson-ncctapp-1995.