Opinion
No. COA14–265.
04-07-2015
Patrice Maurice BERTRAND, Plaintiff, v. Mirtha Flor CABELLO, Defendant.
Crowe & Davis, P.A., by H. Kent Crowe, for plaintiff-appellant. Wyrick Robbins Yates & Ponton LLP, by Tobias S. Hampson and K. Edward Greene, for defendant-appellee.
Crowe & Davis, P.A., by H. Kent Crowe, for plaintiff-appellant.
Wyrick Robbins Yates & Ponton LLP, by Tobias S. Hampson and K. Edward Greene, for defendant-appellee.
GEER, Judge.
Plaintiff Patrice Maurice Bertrand appeals from an order granting the Rule 60(b) motion of defendant Mirtha Flor Cabello to modify an existing consent order entered into following the parties' agreement to a mediated settlement agreement (“MSA”). Plaintiff challenges the trial court's modification of the order to provide, with respect to the equitable distribution award, that plaintiff must pay the balance of the distributive award over a five-year period. Because the undisputed evidence before the trial court established that the parties intended that the distributive award be paid over five years and that the term was inadvertently omitted by the mediator, we hold that the trial court did not abuse its discretion in granting defendant's Rule 60(b) motion, and, therefore, we affirm.
Facts
On 24 May 1991, the parties signed an Antenuptial Agreement shortly before they were married on the same day. On 29 or 31 March 2010, the parties separated, and on 8 November 2010, plaintiff filed a complaint seeking equitable distribution. Defendant filed an answer, including among several counterclaims, a request that the trial court set aside the Antenuptial Agreement. Plaintiff moved for partial summary judgment on the ground that “there is no genuine issue as to the validity of [the] Ante–Nuptial Agreement executed between the parties....” The trial court denied the motion on 20 July 2012.
On 20 December 2012, pursuant to a mediated settlement conference, mediated by Mark Riopel, the parties entered into an MSA that included the following provision with respect to a distributive award payable by plaintiff to defendant:
Plaintiff shall pay to Defendant as a distributive award the total sum of $525,000 payable as follows: $50,000 within 40 days of this Agreement; the remaining $475,000 shall be paid in equal quarterly payments beginning April 1, 2013 until paid in full. Plaintiff shall execute a Promissory note [and] Deed of Trust securing this Award on his residence located at 122, 35th Ave. N.W. [,] Hickory, N.C.
On 21 December 2012, the trial court entered a consent order incorporating the MSA. Plaintiff filed a Motion for Relief From Judgment/Order on 9 April 2013. In his motion, plaintiff argued that “[t]here was no meeting of the minds between the parties with regards to the [MSA] as drafted and it is impossible for the Plaintiff to perform the terms of the [MSA] as drafted.” Plaintiff specifically contended that there was no agreement by the parties with respect to the time frame for the payment of the distributive award and that he had understood the payments would be made over a period of 10 years. Plaintiff's motion was unverified and did not attach an affidavit or any other evidence in support of that motion.
On 7 June 2013, defendant filed an affidavit by Mr. Riopel asserting that throughout the mediation, “both parties consistently made offers and counter offers for the Distributive Award to be paid over a five-year term. Throughout the negotiation, the five-year term was not at issue, rather it was the amount of the Distributive Award that went back and forth several times.” Mr. Riopel explained that when he drafted the MSA, he “inadvertently and mistakenly failed to include in the written agreement[ ] the agreed-upon term that the $475,000 of the Distributive Award was to be paid ‘over a five-year period’.” Mr. Riopel attached to his affidavit a worksheet for the mediation that set out the various proposals of the parties and showed that the proposals had consistently specified that the distributive award would be paid over five years. Plaintiff moved to strike Mr. Riopel's affidavit and moved to rescind the MSA on the same grounds that he moved to set aside the consent order.
On 8 July 2013, defendant filed a motion, pursuant to Rule 60(b) of the Rules of Civil Procedure, to correct the consent order on the grounds that Mr. Riopel “inadvertently and mistakenly failed to include in the written Agreement, the agreed-upon term that the remaining $475,000 of the Distributive Award was to be paid ‘over a 5–year period’ “ and that this omission constituted “extraordinary circumstances.” Consequently, defendant argued, the trial court should “enter an Order modifying, correcting and amending the [previous] Order ... [to include] language that the remaining $475,000 of the Distributive Award is to be paid in equal quarterly payments over five (5) years[.]” Defendant attached her own affidavit in support of her Rule 60 motion asserting that the parties had both consistently provided in their offers and counteroffers that the distributive award would be paid over five years and that throughout the negotiations, the five-year term had never been at issue. Defendant attached to her affidavit her attorney's worksheet from the mediation showing that the parties' proposals had consistently specified five years. Defendant's affidavit further stated that the parties had intended for the five-year period to be included in the MSA, but it had been inadvertently omitted by Mr. Riopel.
The trial court entered an order on 16 October 2013 granting defendant's Rule 60 motion “pursuant to Rule 60(b)(1) and Rule 60(b)(6).” The trial court found that “[t]he clear intent of the parties was that the Plaintiff be given five (5) years from April 1, 2013, to make quarterly payments towards payment of $475,000 worth of a $525,000 Distributive Award.” The trial court further found: “It was a mistake of the parties to omit in the [MSA] the provision as to the time of the conclusion of payments and as a result of the inadvertence of the parties' then counsels of record that same term was not included in the agreement.” The order granting defendant's Rule 60 motion amended the consent order to include the provision that “the remaining $475,000 of the Distributive Award [is] to be paid in equal quarterly payments over a total period of five (5) years beginning April 1, 2013, until paid in full.” Plaintiff timely appealed to this Court from that order modifying the consent order.
Discussion
With respect to orders granting relief under Rule 60(b), it is well established that
[t]he purpose of Rule 60(b) is to strike a proper balance between the conflicting principles of finality and relief from unjust judgments. Generally, the rule is liberally construed. A trial court's ruling on a Rule 60(b) motion is reviewable only for an abuse of discretion. The trial court's findings of fact are conclusive on appeal, if supported by competent evidence. However, those conclusions of law made by the court are reviewable on appeal. Abuse of discretion is shown only when the challenged actions are manifestly unsupported by reason.
Harris v. Harris, 162 N.C.App. 511, 513, 591 S.E.2d 560, 561 (2004) (internal citations and quotation marks omitted).
Preliminarily, we note that plaintiff's arguments on appeal rely largely on his contention that the trial court should not have “reform[ed] the language in the settlement agreement” to reflect the five-year payment period since there was “no mutual assent” to the MSA's five-year term. However, this argument assumes that the trial court would have had the authority, once the consent order was entered, to treat the MSA as an independently enforceable contract. Contrary to plaintiff's assumption, our Supreme Court has explained: “A separation agreement adopted by the court and incorporated into a consent judgment ordering compliance therewith mergesinto the court order; the court's decree supersedes the separation agreement, which then ceases to exist as an independently enforceable contract.” Marks v. Marks, 316 N.C. 447, 453, 342 S.E.2d 859, 863 (1986).
Consequently, contrary to plaintiff's arguments on appeal and before the trial court, the trial court could not rescind the MSA as it had merged with the consent order. Marks, 316 N.C. at 453, 342 S.E.2d at 863. Moreover, plaintiff's argument on appeal that in order to reform the MSA, the trial court was required to make its findings based on clear, cogent, and convincing evidence is, therefore, beside the point.
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Because the MSA merged with the consent judgment, the sole issue before this Court is whether the trial court erred in modifying the consent judgment pursuant to Rule 60(b). Pursuant to Rule 60(b)(1) and (6), a trial court may grant relief from an order or judgment for a number of reasons, including “[m]istake, inadvertence, surprise, or excusable neglect[,]” and “[a]ny other reason justifying relief from the operation of the judgment.” This relief includes the trial court's power to “ ‘modify a final judgment.’ “ Harris, 162 N.C.App. at 514, 591 S.E.2d at 562 (quoting Howell v. Howell, 321 N.C. 87, 91, 361 S.E.2d 585, 588 (1987) ). Under Rule 60(b)(6), “ ‘[t]he test for whether a judgment, order or proceeding should be modified or set aside ... is two pronged: (1) extraordinary circumstances must exist, and (2) there must be a showing that justice demands that relief be granted.’ “ 162 N.C.App. at 514, 591 S.E.2d at 562 (quoting Howell, 321 N.C. at 91, 361 S.E.2d at 588 ).
Plaintiff asserts on appeal that “there is no evidence that the changes [defendant] requested in the Settlement Agreement existed concurrently in the minds of [the parties] at the time of the execution of the Settlement Agreement.” He, therefore, challenges the sufficiency of the evidence to support the trial court's finding that “[t]he clear intent of the parties was that the Plaintiff be given five (5) years from April 1, 2013, to make quarterly payments[ .]”
Contrary to plaintiff's assertion, the affidavits of both Mr. Riopel and defendant and the worksheets attached to those documents amply support the trial court's finding. Plaintiff does not, on appeal, challenge the admissibility of either of those affidavits. Moreover, plaintiff submitted no evidence to the trial court in support of his claim that there was no meeting of the minds. He instead relied upon his unverified motion and argument of counsel, neither of which constitutes evidence. See State v. Buddington, 210 N.C.App. 252, 254, 707 S.E.2d 655, 657 (2011) (“[N]either unverified motions nor counsels' statements are evidence.”).
Mr. Riopel stated in his affidavit that “[t]he intent of the parties, when the [MSA] was signed on December 20, 2012, was for the Distributive Award amount of $525,000.00 to be paid as follows: $50,000 within forty (40) days of the signing of the Agreement; the remaining $475,000 of the Distributive Award was to be paid in equal quarterly payments, over a total period of five (5) years, beginning April 1, 2013, until paid in full.” Attached to Mr. Riopel's affidavit was a spreadsheet that “sets forth the various proposals made by the parties, which consistently reflects that the Distributive Award was to be paid over a five-year term.” Indeed, with respect to the distributive award, the spreadsheet indicates a total of seven offers were made between the parties regarding the distributive award, and all but the last offer contained a five-year time period over which the award was to be distributed after the initial payment was made.
Defendant similarly stated in her affidavit that “[a]t the Mediation, as the Plaintiff and I negotiated the payment terms of the Distributive Award, both parties consistently made offers and counteroffers for the Distributive Award to be paid over a five-year term. Throughout the negotiations, the payment of the Distributive Award over a five-year term was not at issue.” Defendant also attached a spreadsheet to her affidavit showing the parties' offers, which included the five-year time frame for the payment of the distributive award.
Thus, both Mr. Riopel's and defendant's affidavits fully support the trial court's finding that the “clear intent of the parties” was to give plaintiff five years to pay the balance of the distributive award once he made the initial $50,000.00 payment to defendant. Nonetheless, plaintiff argues that “[a]lthough there was an affidavit signed by the mediator, the court fails to make any meaningful findings concerning the affidavit or whether the court even found the affidavit credible.” However, when sitting as the finder of fact, “the trial court is not required to make findings about the weight and credibility it assigns to the evidence before it.” Hartsell v. Hartsell, 189 N.C.App. 65, 75, 657 S.E.2d 724, 730 (2008).
Given the trial court's findings of fact, this Court's opinion in Harrisis instructive. In Harris,following the plaintiff's complaint for divorce and the defendant's counterclaim for equitable distribution, the trial court entered a consent judgment ordering the plaintiff to pay defendant “ ‘$81,000.00 [from an investment account], plus gains and/or losses earned on that amount from January 9, 1999 up to and including the last day of the month preceding the date of distribution of the benefit[.]’ “ 162 N.C.App. at 512, 591 S.E.2d at 561. As a result, the plaintiff was ordered to pay the defendant $100,750.31. Id.at 513, 591 S.E.2d at 561. After the plaintiff paid the defendant that amount, he filed a Rule 60 motion to amend the consent judgment and sought a refund of $19,750.31, contending that it was not the intention of the parties to include the language “ ‘plus gains and/or losses earned on that amount’ “ in the consent judgment. Id.This Court held that, based on the trial court's finding that this language had been “ ‘inadvertently and mistakenlyordered,’ “ “[t]he facts of this case make relief under Rule 60(b)(6) appropriate.” Id.at 515, 591 S.E.2d at 562.
Here, the trial court omitted the five-year payout period term from the consent order. Because the trial court found that “the clear intent of the parties” was to include that term, and it was omitted due to “a mistake of the parties” and “the inadvertence of the parties' then counsels of record,” we conclude, as this Court did in Harris,that the “[t]he trial court did not abuse its discretion” in granting defendant's Rule 60(b) motion to modify the consent order. Id.at 516, 591 S.E.2d at 563. Consequently, we affirm.
AFFIRMED.
Judges STEELMAN and DIETZ concur.
Report per Rule 30(e).
Opinion
Appeal by plaintiff from order entered 16 October 2013 by Judge Robert A. Mullinax, Jr. in Catawba County District Court. Heard in the Court of Appeals 11 September 2014.