Opinion
No. COA16-333
10-04-2016
MARILYN MACKEPRANG, Plaintiff, v. KENNETH DEAN MACKEPRANG, Defendant.
No brief for plaintiff-appellee. Christopher D. Johnson for defendant-appellant.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. Cumberland County, No. 00 CVS 6036 Appeal by defendant from order entered 19 November 2015 by Judge Robert J. Stiehl in Cumberland County District Court. Heard in the Court of Appeals 21 September 2016. No brief for plaintiff-appellee. Christopher D. Johnson for defendant-appellant. TYSON, Judge.
Kenneth Dean Mackeprang ("Defendant") appeals from the trial court's denial of his Rule 60 motion to set aside a previously entered order, which required him to make certain agreed upon payments to Plaintiff to avoid a finding of contempt. We affirm.
I. Background
The parties were married in 1993 and separated on 1 March 2000. No children were born of the marriage. On 10 April 2002, the district court entered an Order for Equitable Distribution and Alimony. The trial court later amended the order on 9 December 2013. Pursuant to the order, Defendant was to pay monthly alimony to Plaintiff.
Plaintiff filed a motion for contempt, set for hearing on 17 June 2015, which alleged Defendant had failed to comply with his financial obligations. Both parties were present and represented by counsel. They negotiated and entered into a written resolution of the contempt claim. Both parties signed a memorandum of judgment. The motion for contempt was dismissed upon Defendant's agreement to make certain arrearage payments to Plaintiff and other provisions. Defendant agreed to pay $3,846.00 to Plaintiff on or before 31 July 2015, and pay an additional $3,846.00 by monthly payments of $150.00 to commence 1 September 2015. Neither party was examined under oath about the agreement or their understanding of the agreement. The parties' handwritten Memorandum of Judgment/Order was formalized by the trial court in an Order of Contempt filed on 17 August 2015.
On 30 June 2015, Defendant filed a Rule 60 motion to set aside the Memorandum of Judgment/Order entered on 17 June 2015, and requested a hearing on the issue of contempt. Defendant asserted the Memorandum of Judgment/Order entered had materially altered the equitable distribution order, and he did not knowingly consent to a modification of the equitable distribution order. The matter was heard by the trial court on 19 November 2015. The court denied Defendant's motion. Defendant appeals.
II. Issues
Defendant argues the trial court erred by: (1) finding it was "local custom" for the court not to examine the parties regarding their understanding of an agreement; (2) failing to examine the parties of their understanding of the agreement set forth in the 17 June 2015 memorandum of judgment; and (3) denying his Rule 60 motion, because Defendant did not understand what he was signing on 17 June 2015.
III. Standard of Review
"[A] motion for relief under Rule 60(b) is addressed to the sound discretion of the trial court and appellate review is limited to determining whether the court abused its discretion." Sink v. Easter, 288 N.C. 183, 198, 217 S.E.2d 532, 541 (1975). An abuse of discretion occurs when the trial court's ruling "was manifestly unsupported by reason, or could not be the product of a reasoned decision." Wachovia Bank, N.A. v. Clean River Corp., 178 N.C. App. 528, 531, 631 S.E.2d 879, 882 (2006) (citation omitted).
IV. Denial of Rule 60 Motion
Under Rule 60, the trial court may relieve a party from a final judgment, order, or proceeding for the following reasons:
(1) Mistake, inadvertence, surprise, or excusable neglect;
(2) Newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b);N.C. Gen. Stat. § 1A-1, Rule 60(b) (2015).
(3) Fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party;
(4) The judgment is void;
(5) The judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or
(6) Any other reason justifying relief from the operation of the judgment.
At the Rule 60 hearing, Defendant testified he did not understand the contents and consequences of the Memorandum of Judgment/Order he signed on 17 June 2015, and did not understand the effects of the Memorandum of Judgment/Order upon the existing equitable distribution order.
In the order denying Defendant's Rule 60 motion, the trial court found Defendant "to be highly intelligent and appropriately responsive to the questions of Counsel." The court further found:
12. It is local custom, particularly on Contempt such as this, for the Court to inquire of the Attorneys should they wish for the Court to question their clients on the record as to any of the provisions in the written Memorandum of Judgment; when stricken through, representations of Counsel are there is no need of that, they have discussed all the statutory provisions of the voluntary nature of the Agreement, that the Agreement reflects the negotiated terms; specifically this was a Contempt and the
Defendant's testimony revealed, in part, he signed the Agreement to avoid jail; the Defendant avoided jail and avoided any finding of Contempt by negotiating these provisions.
The findings and record shows Defendant agreed to certain terms of payment to avoid possible incarceration for contempt. Generally, "[w]hen the parties to an action agree upon a matter of fact, they are bound by it, and it is not the duty of the judge to interfere, for he is presumed to be ignorant of the facts." Sanders v. Ellington, 77 N.C. 255, 256 (1877).
Defendant cites McIntosh v. McIntosh, 74 N.C. App. 554, 328 S.E.2d 600 (1985), and argues the trial court was required to examine the parties to ensure they understood the effects of their agreement. In McIntosh, the Court stated:
Any agreement entered into by parties regarding the distribution of their marital property should be reduced to writing, duly executed and acknowledged. If, as in the case sub judice, oral stipulations 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.Id. at 556, 328 S.E.2d at 602.
In McIntosh, the issue before the Court was "whether the trial court erred in giving legal effect to the parties' oral stipulations relating to the distribution of their marital property." Id. at 555, 328 S.E.2d at 601 (emphasis supplied). The McIntosh Court held an agreement which distributes marital property must be in writing and be executed and acknowledged. If the agreement is oral, the court must read the terms to the parties and ensure the parties understand the terms and legal effects of their agreement and are entering into the agreement of their own free will. Id. at 556, 328 S.E.2d at 602.
Here, the Memorandum of Judgment/Order was reduced to writing, recited the parties' agreement, and was signed by the parties, their attorneys, and the court. McIntosh is wholly inapplicable to the facts here. The trial court heard Defendant's testimony, and determined Defendant failed to demonstrate he did not understand the terms of the agreement he entered on 17 June 2015 with Plaintiff, which permitted him to avoid a finding of contempt. Defendant cites no authority to support his argument to require the trial court to formally and independently examine each party and ascertain whether the parties understood the written agreement they had entered.
Defendant has failed to show any of the six grounds set forth in the Rule, or that the trial court abused its discretion in denying Defendant's Rule 60 motion to set aside the 17 June 2015 written agreement of the parties. The trial court's order is affirmed.
AFFIRMED.
Judges CALABRIA and DAVIS concur.
Report per Rule 30(e).