Opinion
No. COA12–1535.
2013-08-6
Melissa S. WASHBURN, (now Shaver), Plaintiff, v. Edward Nollie WASHBURN, IV, Defendant.
Yelton, Farfour & Fite, P.A., by Leslie A. Farfour, Jr., for plaintiff-appellee. Randolph and Fisher, by J. Clark Fischer, for defendant-appellant.
Appeal by defendant from order entered 14 September 2012 by Judge Laura Powell in Rutherford County District Court. Heard in the Court of Appeals 9 April 2013. Yelton, Farfour & Fite, P.A., by Leslie A. Farfour, Jr., for plaintiff-appellee. Randolph and Fisher, by J. Clark Fischer, for defendant-appellant.
DAVIS, Judge.
Edward Nollie Washburn, IV (“defendant”) appeals from the trial court's order denying his motion to set aside its prior equitable distribution award. After careful review, we affirm.
Factual Background
Defendant and Melissa S. Washburn (“plaintiff”) married on 2 February 1985 and separated on 1 June 2009. They have two children, both of whom reached the age of majority by the time plaintiff filed her complaint on 17 June 2010, asserting claims for divorce and equitable distribution. Defendant, in his answer, asserted counterclaims likewise seeking divorce and equitable distribution.
On 9 March 2012, the trial court conducted an evidentiary hearing on the parties' claims for equitable distribution and entered its judgment and order on 20 March 2012. Although defendant initially noticed appeal from that order, he subsequently withdrew his notice of appeal and filed a motion with the trial court to set aside the 20 March 2012 order pursuant to Rule 60(b) of the North Carolina Rules of Civil Procedure. As the basis for his motion, defendant alleged that plaintiff had intentionally given false testimony at the equitable distribution hearing about several issues, including their daughter's student loan debt and the amount of personal credit card debt plaintiff had incurred.
After holding a hearing on defendant's Rule 60(b) motion, the trial court entered an order on 14 September 2012 in which it made the following finding of fact:
The Defendant, in support of his Rule 60(b) Motion, testified as to his disagreement with testimony presented by the Plaintiff at the trial of this matter but provided no documentation or other supporting evidence to show to this Court that such testimony was fraudulent or, even if such statements were fraudulent, that they had any material effect with regard to the distribution of the property between the parties.
Based on this finding, the trial court concluded that defendant had “failed to meet his burden of proof” with respect to his motion to set aside the trial court's prior order. The trial court, consequently, denied defendant's Rule 60(b) motion. Defendant appealed to this Court.
Analysis
Defendant argues that the trial court erred in denying his Rule 60(b) motion to set aside the trial court's equitable distribution order based on his assertion that plaintiff provided “intentionally false testimony that tainted the District Court's judgment of equitable distribution.” Plaintiff's false testimony, defendant contends, constituted fraud under Rule 60(b)(3).
Although defendant also cited subsections (b)(1) (mistake, inadvertence, surprise, or excusable neglect) and (b)(6) (catchall provision) of Rule 60 as additional grounds for his motion, defendant limited his argument before the trial court—as well as his argument in his brief to this Court—to subsection (b)(3) (fraud, misrepresentation, or other misconduct of an adverse party). Accordingly, we do not address these additional grounds. See Croom v. Hedrick, 188 N.C.App. 262, 266, 654 S.E.2d 716, 719 (2008) (limiting review on appeal to those grounds under Rule 60(b) actually argued on appeal).
Rule 60(b)(3) enables a trial court to set aside a final judgment or order due to fraud, misrepresentation, or other misconduct of an adverse party. N.C. R. Civ. P. 60(b)(3); Harbin Yinhai Tech. Dev. Co. v. Greentree Fin. Grp., Inc., 196 N.C.App. 615, 625–26, 677 S.E.2d 854, 861 (2009). In order to obtain relief under Rule 60(b)(3), the movant bears the burden of establishing that (1) he had a meritorious claim or defense; (2) which he was prevented from fully and fairly presenting prior to judgment; (3) because of the fraud, misrepresentation, or misconduct of the adverse party. Croom v. Hedrick, 188 N.C.App. 262, 268, 654 S.E.2d 716, 721 (2008) (quoting 2 G. Gray Wilson, North Carolina Civil Procedure § 60–8, at 392 (3d ed.2007)).
A trial court's decision whether to grant relief under Rule 60(b)(3) due to fraud, misrepresentation, or other misconduct is reviewed for abuse of discretion. Coppley v. Coppley, 128 N.C.App. 658, 663, 496 S.E.2d 611, 616,disc. review denied, 348 N.C. 281, 502 S.E.2d 846 (1998). Under this standard, a trial court's ruling may be reversed only upon a showing that the ruling was manifestly unsupported by reason or so arbitrary that it could not have been the result of a reasoned decision. Davis v. Davis, 360 N.C. 518, 523, 631 S.E.2d 114, 118 (2006) (citations and quotation marks omitted).
Defendant argues that he established a “ prima facie case of fraud by [plaintiff] during the equitable distribution trial[.]” However, even assuming arguendo that defendant did establish that plaintiff intentionally gave false testimony at the equitable distribution trial, defendant's claim for relief still fails. At the hearing on his Rule 60(b) motion, defendant provided no evidence or argument showing how he was prevented from litigating his equitable distribution claim due to plaintiff's alleged fraud. See Rozier v. Ford Motor Co., 573 F.2d 1332, 1339 (5th Cir.1978) (“The conduct complained of must be such as prevented the losing party from fully and fairly presenting his case or defense.”). Nor does defendant advance any such argument on appeal.
Because the North Carolina Rules of Civil Procedure are based on the Federal Rules of Civil Procedure, “[d]ecisions under the federal rules are ... pertinent for guidance and enlightenment” in cases involving the North Carolina Rules of Civil Procedure. Turner v. Duke Univ., 325 N.C. 152, 164, 381 S.E.2d 706, 713 (1989).
Moreover, defendant provided no explanation—to the trial court or to this Court on appeal—as to why, during the equitable distribution trial, he was unable to challenge plaintiff's allegedly false testimony. See Horne v. Edwards, 215 N.C. 622, 627, 3 S.E .2d 1, 4 (1939) (explaining that during trial, parties “must be prepared to meet and expose perjury then and there”) (citation and quotation marks omitted). Indeed, when asked on direct examination during the Rule 60(b) hearing, defendant testified that he was aware during the equitable distribution proceedings that there was “testimony that was being presented that [he] felt was incorrect” but that he did “not fully” address these concerns due to the “fairly quick[ ]” pace of the trial. See Paige v. Sandbulte, 917 F.2d 1108, 1111 (8th Cir.1990) (holding movant “failed to establish that [alleged perjury] prevented him from ‘fully and fairly’ presenting his case as required under Rule 60(b)(3)” because movant had “ample opportunity to cross-examine” adverse party).
Furthermore, the information about which plaintiff allegedly gave false testimony was not exclusively within her possession. Defendant admitted that his attorneys requested production of plaintiff's “credit card statement[s] and all the rest of it” and never filed any motions with the trial court indicating that the discovery was not produced.
In the absence of any evidence that plaintiff's allegedly false testimony rendered him unable to fully and fairly present his claim for equitable distribution, we hold that the trial court properly concluded that defendant had failed to meet his burden of proof with respect to his Rule 60(b) motion. See Bunch v. United States, 680 F.2d 1271, 1283 (9th Cir.1982) (holding that trial court did not abuse its discretion in denying motion for relief from judgment under equivalent federal rule where “record ... reflect[ed] that [movant] had a full and fair opportunity to present his case” notwithstanding alleged misconduct).
While defendant cites Sloan v. Sloan, 151 N.C.App. 399, 566 S.E.2d 97 (2002), in support of his argument, his reliance on Sloan is misplaced. In Sloan, the trial court entered an equitable distribution order awarding the wife the marital home along with the debt associated with the property. Id. at 401, 566 S.E.2d at 99. When the wife discovered that the husband had increased the debt on the marital home by borrowing against an equity line of credit on the home, she moved pursuant to Rule 60(b) to have the order set aside. Id. at 402, 566 S.E.2d at 99.
On appeal, the husband argued that the record did not support the trial court's decision to set aside the order. Id. at 404, 566 S.E.2d at 101. This Court disagreed, pointing to the husband's admission during the Rule 60(b) hearing that “he was asked at the equitable distribution hearing about other debts and that he failed to inform the [trial] court that he borrowed against the equity line .” Id. at 405, 566 S.E.2d at 102. This evidence, we concluded, supported the trial court's discretionary ruling setting aside the equitable distribution order pursuant to Rule 60(b). Id.
Sloan is inapposite here. Our conclusion in Sloan that the trial court did not abuse its discretion was based on the fact that the husband's admission constituted competent evidence supporting the court's decision to grant the wife's Rule 60(b) motion. Here, in contrast, defendant presented no competent evidence showing that he was prevented from fully and fairly litigating his equitable distribution claim. The trial court, therefore, did not abuse its discretion in denying defendant's Rule 60(b) motion.
Finally, defendant contends that the trial court erred by not making findings of fact regarding “the specific areas in which [defendant] contended [plaintiff] had offered false testimony.” The record indicates, however, that defendant never requested that the trial court make such findings. In the absence of such a request, “a court called upon to decide a controversy is not required to make specific findings of fact.” Tyndall v. Triangle Mobile Homes, Inc., 264 N.C. 467, 469, 142 S.E.2d 21, 23 (1965); accord Griffin v. Griffin, 237 N.C. 404, 410, 75 S.E.2d 133, 137 (1953) (“It is too late for the plaintiff on appeal to complain of failure of the [trial] court to find specific facts, when no specific request therefor was made at the hearing.”). Accordingly, this argument is overruled.
Conclusion
For the reasons stated above, we affirm the trial court's order denying defendant's Rule 60(b) motion.
AFFIRMED. Judges McGEE and GEER concur.
Report per Rule 30(e).