Opinion
No. COA10-1367
Filed 19 July 2011 This case not for publication
Appeal by plaintiff from order entered 20 April 2010, nunc pro tunc to 24 February 2010, by Judge Richard B. Abernethy in Gaston County District Court. Heard in the Court of Appeals 14 April 2011.
J. Boyce Garland, Jr., for plaintiff-appellant. Langson Law Firm, by Sean F. McIlveen, for defendant-appellee.
Gaston County No. 09 CVD 6679.
Dawn M. Herrin ("plaintiff") appeals from the trial court's order barring her claims against Richard K. Herrin ("defendant") for equitable distribution, postseparation support, and alimony. We affirm.
I. Background
Plaintiff and defendant were married on 12 June 1993. On 10 March 2008, the parties separated when plaintiff left the marital residence. The parties had one child during their marriage, and that child was still a minor at the time of separation.
Prior to her departure from the marital residence, plaintiff wrote, in her own handwriting, a document which discussed the distribution of various items of marital property and other monetary claims between plaintiff and defendant ("the separation agreement"). The parties then drove, in separate vehicles, to have the separation agreement acknowledged by a notary public.
On 12 November 2009, plaintiff initiated an action seeking postseparation support, alimony, equitable distribution, and child custody in Gaston County District Court. On 2 February 2010, defendant filed an answer and counterclaim for child custody and divorce from bed and board. In his answer, defendant pled that plaintiff's claims for postseparation support, alimony, and equitable distribution were barred by the separation agreement. On 18 February 2010, plaintiff filed a response to defendant's counterclaims and, in response to defendant's answer, asserted that the separation agreement should be set aside on the basis of duress, coercion, and undue influence.
The trial court conducted a hearing on defendant's plea in bar on 24 and 25 February 2010. After hearing plaintiff's testimony, the trial court entered an order barring plaintiff's claims for postseparation support, alimony, and equitable distribution. Plaintiff appeals.
On appeal, plaintiff does not challenge the portion of the trial court's order dealing with her postseparation support claim. Thus, it is left undisturbed.
On 23 May 2011, this Court granted plaintiff's motion to amend the record to reflect that the trial court entered judgment on the parties' remaining claims. A child custody judgment was entered on 27 October 2011 and an absolute divorce judgment was entered on 15 November 2010.
II. Standard of Review
Initially, we note that, although plaintiff refers to the trial court's order as granting a motion to dismiss and defendant discusses the trial court's order as an order granting summary judgment, the trial court's "Order to Dismiss" is in actuality a judgment upholding defendant's plea in bar. See Johnson v. Johnson, ___ N.C. App. ___, ___, 701 S.E.2d 722, 725-26 (2010); Garris v. Garris, 92 N.C. App. 467, 468, 374 S.E.2d 638, 639 (1988) (a defendant's allegation that "a valid separation/property settlement agreement [] waived all of plaintiff's marital rights" is "properly characterized as a plea in bar to plaintiff's complaint").
"A plea in bar is one that denies the plaintiff's right to maintain the action, and which, if established, will destroy the action." Mercer v. Hilliard, 249 N.C. 725, 728, 107 S.E.2d 554, 556 (1959). "Whether in the circumstances of the particular case a plea in bar is to be disposed of prior to trial on the merits is for the court, in the exercise of its discretion, to determine." Motors v. Bottling Co., 266 N.C. 251, 256, 146 S.E.2d 102, 106 (1966) (citations omitted). If the parties do not request a jury, or are not entitled to a jury trial, a trial court may act as the trier of fact to determine the validity of a plea in bar "by hearing evidence offered by the parties, finding facts, reaching conclusions of law, and thereupon entering judgment." Morse v. Curtis, 276 N.C. 371, 377, 172 S.E.2d 495, 499 (1970).
In a bench trial in which the [trial] court sits without a jury, the standard of review is whether there was competent evidence to support the trial court's findings of fact and whether its conclusions of law were proper in light of such facts. Findings of fact by the trial court in a non-jury trial . . . are conclusive on appeal if there is evidence to support those findings. A trial court's conclusions of law, however, are reviewable de novo.
Hinnant v. Philips, 184 N.C. App. 241, 245, 645 S.E.2d 867, 870 (2007) (internal quotations and citation omitted).
In the instant case, since the parties did not request a trial by jury, the trial court heard evidence, found facts and reached conclusions of law to determine the validity of defendant's plea in bar. Furthermore, plaintiff does not challenge any of the trial court's findings of fact, and therefore, they are binding on appeal. Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991).
III. Duress and Undue Influence
Plaintiff argues that the trial court erred by failing to set aside the parties' agreement on the basis of duress and undue influence. We disagree.
If a plaintiff executes a "separation agreement under duress or fear induced by wrongful acts or threats, the separation agreement is invalid and not a bar to equitable distribution unless the separation agreement was ratified by plaintiff." Cox v. Cox, 75 N.C. App. 354, 356, 330 S.E.2d 506, 508 (1985). "`Duress exists where one, by the unlawful act of another, is induced to make a contract or perform or forego some act under circumstances which deprive him of the exercise of free will.'" Stegall v. Stegall, 100 N.C. App. 398, 401, 397 S.E.2d 306, 307 (1990) (quoting Link v. Link, 278 N.C. 181, 194, 179 S.E.2d 697, 705 (1991). "A wrongful act or threat is an important element of duress." Radford v. Keith, 160 N.C. App. 41, 44, 584 S.E.2d 815, 817 (2003).
"In the instance where the court cannot find sufficient threat to constitute duress, it may still find the presence of undue influence." Coppley v. Coppley, 128 N.C. App. 658, 664, 496 S.E.2d 611, 617 (1998). This Court has defined undue influence as "`the exercise of an improper influence over the mind and will of another to such an extent that his professed act is not that of a free agent, but in reality is the act of the third person who procured the result.'" Stephenson v. Warren, 136 N.C. App. 768, 772, 525 S.E.2d 809, 812 (2000) (quoting Lee v. Ledbetter, 229 N.C. 330, 332, 49 S.E.2d 634, 636 (1948)).
In the instant case, the trial court made the following relevant findings of fact:
18. That the Plaintiff testified that she "feared for her safety if she did not sign the agreement[."] The Court does not find this to be the case.
. . .
20. That there was no evidence presented to the undersigned that the Defendant made any statements that the Plaintiff "had to sign the agreement.["]
In addition, the trial court also found that after plaintiff completed the handwritten agreement, she and defendant traveled in separate vehicles to have the separation agreement notarized and that plaintiff did not indicate to the notary that, by executing the agreement, she was not exercising her own free will. These findings, which are binding on appeal, support the trial court's conclusion that plaintiff was not under duress or undue influence when she executed the agreement. This argument is overruled.
IV. Validity of Agreement
Plaintiff argues that the trial court erred by concluding that the separation agreement was valid pursuant to N.C. Gen. Stat. § 50-20(d). We disagree.
A. Meeting of the Minds
Plaintiff first contends that the separation agreement was invalid because there was no meeting of the minds between plaintiff and defendant when the separation agreement was executed. In her brief, plaintiff states that "[a]ll of the leading cases in this area hold that a `meeting of the minds' as to all essential terms of the agreement must be present for a valid contract to occur." However, plaintiff does not provide any actual citation to any legal authority, and "[i]t is not the duty of this Court to supplement an appellant's brief with legal authority or arguments not contained therein." Goodson v. P.H. Glatfelter Co., 171 N.C. App. 596, 606, 615 S.E.2d 350, 358 (2005). Thus, we deem this argument abandoned pursuant to N.C.R. App. P. 28(b)(6) (2009) (An appellant's brief "shall contain citations of the authorities upon which the appellant relies.").
Finally, plaintiff contends that the separation agreement fails to comply with N.C. Gen. Stat. § 50-20(d), which states:
Before, during or after marriage 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 or divisible property, or both, in a manner deemed by the parties to be equitable and the agreement shall be binding on the parties.
N.C. Gen. Stat. § 50-20(d) (2009). Plaintiff argues that there was no evidence, either on the face of the separation agreement or in plaintiff's testimony, that the parties deemed the separation agreement to be equitable.
However, "there is no requirement for the trial court to make an `independent determination regarding the "fairness" of the substantive terms of the agreement, so long as the circumstances of execution were fair.'" King v. King, 114 N.C. App. 454, 458, 442 S.E.2d 154, 157 (1994) (quoting Hill v. Hill, 94 N.C. App. 474, 480, 380 S.E.2d 540, 545 (1989)). "[A]bsent a showing of . . . wrongdoing by a party to the agreement (or his agent), `we must assume that this arrangement was satisfactory to both spouses at the time it was entered into.'" Hill, 94 N.C. App. at 481, 380 S.E.2d at 545 (quoting Hagler v. Hagler, 319 N.C. 287, 293, 354 S.E.2d 228, 234 (1987)).
In the instant case, the trial court determined that the circumstances of the execution of the separation agreement were fair. Therefore, the separation agreement itself is presumed to be satisfactory to both parties. This argument is overruled.
V. Conclusion
The trial court's unchallenged findings of fact supported its conclusion that plaintiff was not under duress or undue influence when she executed the separation agreement. Since the trial court found no evidence of wrongdoing in the execution of the separation agreement, the agreement is presumed to be considered equitable by both parties. The trial court's judgment barring plaintiff's claims for alimony, postseparation support, and equitable distribution is affirmed.
Affirmed.
Judges ERVIN and THIGPEN concur.
Report per Rule 30(e).