An unpublished opinion of the North Carolina Court of Appeals does not constitute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.
NO. COA13-821
NORTH CAROLINA COURT OF APPEALS
Filed: 18 February 2014
JEFFREY E. HIGGINS,
Plaintiff-Appellant,
v. Forsyth County
No. 02 CVD 6068
THERESSA C. JORDAN,
(formerly HIGGINS),
Defendant-Appellee.
Appeal by Plaintiff from order entered 13 January 2012 and
judgment entered 20 December 2012 by Judge Chester C. Davis in
District Court, Forsyth County. Heard in the Court of Appeals
10 December 2013.
J. Clark Fischer for Plaintiff-Appellant.
C.R. “Skip” Long, Jr. for Defendant-Appellee.
McGEE, Judge.
Jeffrey E. Higgins (“Plaintiff”) filed an action for
divorce and equitable distribution on 29 August 2002.
Plaintiff’s wife at the time, Theressa C. Jordan (formerly
Higgins) (“Defendant”), responded pro se by letter dated 21
October 2002, contesting certain parts of Plaintiff’s equitable
-2-
distribution claim. The judgment on absolute divorce in this
matter was entered on 18 November 2002, but the issue of
equitable distribution was continued, to be resolved at a later
date. A pre-trial order was entered on 21 October 2003, signed
only by Plaintiff and his attorney. According to the judgment
in this matter, “[a]t some time after October 20, 2003, the
court conducted an equitable distribution trial with the
Plaintiff and his attorney. Neither the Defendant nor any
attorney representing her were present for the trial.” However,
Plaintiff’s attorney never prepared the equitable distribution
judgment following the trial, so no equitable distribution
judgment was ever filed based upon that first trial.
Defendant, now represented by counsel, filed a “Motion Not
to Enter Proposed Judgment; Motion to Set Aside/Amend Pre-trial
Order; Motion to Set Trial Date” on 9 February 2009. Following
a 20 July 2010 hearing, the trial court took the unusual step of
ordering Plaintiff and Defendant to select an appellate attorney
to prepare an “advisory opinion” concerning how issues
surrounding the potential setting aside of the pre-trial order
and decision on whether to enter an equitable distribution
judgment based upon the prior trial, might be treated on appeal.
This was accomplished by order entered 21 March 2011. Plaintiff
and Defendant selected an appellate attorney to prepare the
-3-
“advisory opinion.” The appellate attorney submitted an
“advisory opinion” on 16 May 2011. In an order entered 13
January 2012, the trial court granted Defendant’s motions,
declining to enter Plaintiff’s equitable distribution judgment,
setting aside the 21 October 2003 pre-trial order, and ordering
Plaintiff and Defendant to arrange and schedule mediation and,
if Plaintiff and Defendant were unable to reach an agreement in
mediation, a new pre-trial order would be entered. This matter
again went to trial on 22 May 2012. The trial court entered an
equitable distribution judgment on 20 December 2012 which, after
factoring the assets and liabilities of the marital estate,
awarded Plaintiff $105,077.23 of “the net marital estate” and
Defendant $102,060.45 of “the net marital estate[.]” Plaintiff
appeals.
I.
In Plaintiff’s first argument, he contends the trial court
erred by abdicating its judicial responsibilities in granting
Defendant’s motion to set aside the 21 October 2003 pre-trial
order. We disagree.
By motion filed 9 February 2009 (amended 4 May 2010),
Defendant moved, pursuant to N.C. Gen. Stat. § 1A-1, Rules 59
and 60, for the trial court to, inter alia, set aside the pre-
trial order filed 21 October 2003. In its 13 January 2012
-4-
order, the trial court, “in its discretion, [set] aside the
October 21, 2003 Pre-Trial Order[.]” “As with Rule 59 motions,
the standard of review of a trial court's denial of a Rule 60(b)
motion is abuse of discretion.” Davis v. Davis, 360 N.C. 518,
523, 631 S.E.2d 114, 118 (2006) (citation omitted).
We first note there is nothing in the record that indicates
Plaintiff objected to the trial court’s ordering and considering
the “advisory opinion” at any time. The 21 March 2011 order
selecting the appellate attorney to provide the “advisory
opinion” states in relevant part:
IT FURTHER APPEARING to the Court that after
hearing arguments and contentions from both
attorneys, that an advisory opinion from an
experienced appellate attorney would be
useful to the [c]ourt and to the parties.
After some discussions in open court, the
parties agreed to equally share the cost of
this advisory opinion (conditioned on the
total cost not exceeding $1,000.00).
Counsel agreed to request that [an appellate
attorney] review the file and the
contentions of the parties in order to
provide an advisory opinion.
It appearing that Plaintiff failed to preserve this issue for
appellate review through objection in the trial court, this
argument is deemed abandoned. Dogwood Dev. & Mgmt. Co., LLC v.
White Oak Transp. Co., 362 N.C. 191, 195, 657 S.E.2d 361, 363
(2008) (citation omitted) (“Rule 10 . . . provides that ‘[i]n
order to preserve a question for appellate review, a party must
-5-
have presented to the trial court a timely request, objection or
motion, stating the specific grounds for the ruling the party
desired the court to make.’”).
Assuming, arguendo, that Plaintiff properly preserved this
issue for appellate review, his argument still fails. In its 13
January 2012 order, the trial court stated:
IT FURTHER APPEARING to the Court that after
hearing and considering arguments and
contentions from both attorneys, carefully
considering the verified pleadings in the
file, considering the Advisory Opinion filed
in this case, that the interests of justice,
and a strong public policy favoring that
parties have their "day in court," the
length of time and delays which have
occurred in this case, the [c]ourt, in its[]
discretion is declining to enter
Plaintiff[‘]s proposed equitable
distribution judgment based upon a trial
which occurred in December of 2003. In
addition, the Court is setting aside the
pre-trial order entered into October 21,
2003 based upon the fact that, inter alia,
said order was never consented to by . . .
Defendant.
We do not find that the trial court abdicated its judicial
responsibility by considering the “advisory opinion” authored by
the attorney selected by both parties. The 13 January 2012
order makes clear that the trial court considered all arguments
of counsel, the opinion of the appellate attorney, and the
pleadings before exercising its discretion to set aside the 21
-6-
October 2003 order. Plaintiff has failed to demonstrate any
abuse of discretion. This argument is without merit.
II.
In his second argument, Plaintiff contends the trial court
abused its discretion in granting Defendant an unequal
distribution in her favor. We disagree.
Plaintiff argues that the trial court improperly granted
Defendant an unequal distribution of the marital assets based
upon a finding that Plaintiff mismanaged family finances. We
need not determine whether the trial court’s finding was
supported by the evidence, as Plaintiff fails to properly argue,
much less demonstrate, that Defendant received a greater share
of the marital assets than did Plaintiff.
In the 20 December 2012 equitable distribution judgment,
the trial court ordered that Plaintiff receive $105,077.23 of
“the net marital estate[.]” The trial court ordered that
Defendant receive $102,060.45 of “the net marital estate[.]”
Plaintiff does not contest these numbers. To the extent that a
difference of $3,016.78 constituted an unequal distribution of
the marital assets, it was an unequal distribution in
Plaintiff’s favor. This argument is without merit.
Affirmed.
Judges HUNTER, Robert C. and ELMORE concur.
-7-
Report per Rule 30(e).