North Carolina Intent Absolute Divorce Separation Equitable Distribution Lawyers Attorneys

LEON C. BAKER, Plaintiff-Appellant, v. CONNIE A. BAKER

, Defendant-Appellee.

COURT OF APPEALS OF NORTH CAROLINA

March 23, 1994, Heard in the Court of Appeals

June 21, 1994, Filed

Plaintiff and defendant were married in 1969 and separated in June 1991 with the intent to permanently terminate the marriage. On 6 July 1992, plaintiff filed this action for absolute divorce based on one year's separation. The civil summons and a copy of plaintiff's complaint were personally served upon defendant; however, no responsive pleading was filed, apparently due to a misunderstanding between defendant and her counsel. A hearing for absolute divorce was held on 18 September 1992; neither defendant nor her counsel attended, and plaintiff was granted a judgment for absolute divorce. Thereafter, defendant filed a motion seeking relief from the divorce judgment pursuant to G.S. 1A-1, Rule 59(a)(1) and (9) and Rule 60(b)(1) and (6), in order that she could assert a counterclaim for equitable distribution of the parties' marital property. After a hearing, the trial court found that defendant's Rule 59 motion should be denied, but, with respect to her Rule 60(b) motion the trial court found that defendant and her counsel had "acted in good faith, but on mutually erroneous assumptions; and that defendant did act diligently in attempting to preserve her rights to an equitable distribution." The court found further "that the presentation of defendant's equitable distribution claim does constitute a 'meritorious defense' within the meaning of Rule 60(b); and that defendant's failure to file a claim for equitable distribution in this action was the result of excusable neglect not attributable to defendant." Thus, the trial court granted defendant's Rule 60(b) motion and set aside the divorce judgment, whereupon defendant immediately filed an answer admitting the allegations of plaintiff's complaint for absolute divorce and asserting a counterclaim for equitable distribution. Plaintiff appealed.

Issue:

Whether a counterclaim for equitable distribution can constitute a "meritorious defense" to a complaint for absolute divorce, necessary to the granting of relief from a judgment pursuant to G.S. 1A-1, Rule 60(b)?

The court held that a counterclaim is sufficient to constitute a meritorious defense for the purposes of Federal Rule 60(b), saying that a meritorious defense requires "a proffer of evidence which would permit a finding for the defaulting party or which would establish a valid counterclaim. A claim for equitable distribution constitutes a meritorious defense to an action for absolute divorce for the purpose of obtaining relief from the judgment of absolute divorce under Rule 60(b)(1). Therefore, where the trial court found that defendant's failure to file a claim for equitable distribution was the result of excusable neglect not attributable to defendant, the court properly set aside the judgment of absolute divorce and permitted defendant to file her answer and counterclaim for equitable distribution. N.C.G.S. 1A-1, Rule 60(b)(1). However, the court concluded that when the district court granted the wife relief from the judgment of absolute divorce and permitted her to file an answer, the effect was the same as if the judgment had never been entered, and the wife's right to equitable distribution was revived.

Conclusion:

The court affirmed the district court's order, which set aside a judgment of absolute divorce and permitted the wife to file her answer and counterclaim against the husband for equitable distribution.

Disclaimer:

These summaries are provided by the SRIS Law Group. They represent the firm's unofficial views of the Justices' opinions. The original opinions should be consulted for their authoritative content

North Carolina Intent Absolute Divorce Separation Equitable Distribution Lawyers Attorneys

By: Atchuthan Sriskandarajah

POST COMMENT

North Carolina Absolute Divorce Property Equitable Distribution Separation Lawyers Attorneys North Carolina Criminal Habitual Driving Felon Reasonable Inference Alcohol Evidence Sufficiency Concealed Weapon Lawyers Attorneys North Carolina Criminal Impaired Driving Checkpoint Articulable Suspicion Constitutionally Permissible Lawyers Attorneys North Carolina Suppress Conclusions Checkpoint Remand Reverse Vacate Lawyers Attorneys Inventory Investing - How to Acquire In excess of The Counter Stocks and shares The Finest Spot to Commence Investing in Shares - Canada's Big 9 Financial institutions The Importance of Selecting the appropriate Divorce process Lawyer Your Guide To Retirement plan Preparing Car Wreck Lawyers – Do You Need One? Retirement Planning - Do Pensions Still Exist? Avoid the adverse effects of DWI cases by taking the assistance of an experienced DWI Lawyer The Very best Penny Shares in 2009? The Guess Operate Lastly Eliminated From Penny Inventory Investing! DWI Lawyers Who Can Help You Escape the Complex Laws