An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-241
NORTH CAROLINA COURT OF APPEALS
Filed: 21 October 2014
REBECCA CHAPMAN DIGH, (now
OSBORNE),
Plaintiff,
v. Burke County
No. 98 CVD 89
WILLIAM WALLACE DIGH,
Defendant.
Appeal by defendant from orders entered 28 August 2013 and
20 December 2013 by Judge Sherri W. Elliott in Burke County
District Court. Heard in the Court of Appeals 27 August 2014.
Richard W. Beyer for appellee.
KUEHNERT & JONES, PLLC, by Daniel A. Kuehnert, for
appellant.
ELMORE, Judge.
William Wallace Digh (defendant) appeals from the trial
court’s denial of his Rule 60(b)(4) motion and his Rule 59
motion. Defendant argues on appeal that he was not afforded due
process prior to the entry of the 2009 Domestic Relations Order.
After careful consideration, we affirm.
I. Background
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The facts of this case are largely undisputed and are
derived from an earlier opinion filed in this matter, Digh v.
Digh, COA12-506, 2012 WL 6590509 (N.C. Ct. App. Dec. 18, 2012).
Rebecca Chapman Digh (plaintiff) and defendant were married on
24 October 1976 and subsequently separated on 1 November 1995,
after almost twenty years of marriage. Two children were born
of the parties during their marriage, both of whom are now
adults.
On 26 February 1998, a Consent Judgment (1998 Judgment) was
entered with respect to equitable distribution of the marital
property. Defendant was a participant in the State of North
Carolina Teachers’ and State Employees’ Retirement System, and a
portion of his retirement benefits was subject to equitable
distribution. In the 1998 Judgment, the trial court made the
following findings of fact with regard to the portion of
defendant’s retirement benefits designated to plaintiff:
(B) That the Plaintiff and Defendant have
agreed that the Plaintiff shall be
designated as the alternate payee of
retirement benefits equal to fifty percent
(50%) of the Defendant/Plan Participant's
account which can be attributed to that
amount which accrued from the date of the
parties’ marriage (October 24, 1976) to the
date of their separation (November 1, 1995),
plus all interest accruing on the alternate
payee’s portion from the date of the
parties’ separation through the date the
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funds are disbursed to the alternate payee.
(C) That the Plan Administrator is directed
to make monthly payments directly to the
Plaintiff of the amount which equals fifty
percent (50%) of the Defendant’s account,
which can be attributed to that amount which
accrued from the date of the parties’
marriage (October 24, 1976) to the date of
their separation (November 1, 1995), plus
all interest accruing on the alternate
payee’s portion from the date of the
parties’ separation through the date the
funds are disbursed to the alternate payee.
On the foregoing findings of fact, the trial court
similarly concluded as a matter of law, the following:
(B) That the Plaintiff . . . shall be
designated as the alternate payee of
retirement benefits equal to fifty percent
(50%) of the Defendant/Plan Participant’s
account which can be attributed to that
amount which accrued from the date of the
parties' marriage (October 24, 1976) to the
date of their separation (November 1, 1995),
plus all interest accruing on the alternate
payee’s portion from the date of the
Parties’ separation through the date the
funds are disbursed to the alternate payee.
(C) That the Plan Administrator is directed
to make monthly payments directly to the
Plaintiff of the amount which equals fifty
percent (50%) of the Defendant’s account,
which can be attributed to that amount which
accrued from the date of the parties’
marriage (October 24, 1976) to the date of
their separation (November 1, 1995), plus
all interest accruing on the alternate
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payee’s portion from the date of the
parties’ separation through the date the
funds are disbursed to the alternate payee.
Both plaintiff and defendant signed the 1998 Judgment, and the
1998 Judgment was notarized.
At the end of 2008, defendant retired. In February 2009,
defendant received a letter from plaintiff’s counsel dated 5
February 2009. In the letter, counsel stated the following:
Your ex-spouse, [Plaintiff], has retained
this office to make sure she receives her
share of retirement benefits as provided by
the Judgment entered February 26, 1998[.] .
. . Since your retirement at the end of
2008, [Plaintiff] was to begin receiving her
share of your retirement when you did and I
would calculate that to be about 28% of your
retirement benefit. I do not know if you
have received your first State retirement
check but if it was not reduced by the
amount [Plaintiff] is to receive, you will
owe her that amount of each and every month
that you receive the entire retirement
amount rather than that amount reduced by
[Plaintiff’s] share. I have sent you this
letter so you are aware that you need to pay
this amount to [Plaintiff] if you are
receiving the total benefit and that if it
is not paid to her we will be forced to
return to court.
On 16 February 2009, the trial court entered a Domestic
Relations Order (2009 Order) designating the following as
Plaintiff’s marital portion:
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4. The marital interest of the nonmember ex-
spouse in the, member’s benefits payable by
the Retirement System shall be calculated as
follows: fifty per cent [sic] (50%) of the
amount determined by multiplying the
member’s total benefit by a fraction, the
numerator of which shall be the total months
of creditable service earned during the
marriage, including creditable service
purchased during the marriage, and the
denominator of which shall be the member’s
total number of months of creditable service
at the time of retirement or of a withdrawal
of accumulated contributions.
5. The formula set forth in Finding of Fact
4 shall be applied to all retirement
benefits payable to the member of this his
designated survivor(s) under any option
contained in G.S. 135–5(g), as well as to
any return of accumulated contributions made
pursuant to G.S. 135–5(f) or G.S. 135–5(gl).
Based on the foregoing and other findings of fact the trial
court made the following conclusions of law:
5. The Retirement System shall distribute to
the non-member ex-spouse her marital share
of the member’s benefits payable by the
Retirement System, calculated pursuant to
the provisions of Finding of Fact 4 and 5 of
this order. In the event that a return of
accumulated contributions becomes payable
pursuant to G.S. 135–5(f) or G.S. 135–5(gl),
then the Retirement System shall distribute
to the nonmember ex-spouse her marital share
of such a return of accumulated
contributions, calculated pursuant to the
provisions of Finding of Fact 5 of this
order.
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6. The non-member ex-spouse shall receive
her share of the member’s retirement
benefits at such time and in such payment
form as said benefits are paid to the
member.
. . .
10. A copy of this Order shall be served
upon the Administrator of the Teachers’ and
State Employees’ Retirement System of North
Carolina, and the Administrator shall
determine, within a reasonable period of
time, whether this Order can be administered
by the Retirement System. This Order shall
take effect immediately and shall remain in
effect until further orders of this Court.
Until this Order is accepted by the
Retirement System, this Court retains
jurisdiction to modify this Order as may be
required or necessary.
On 9 July 2009, defendant filed a motion in the cause (2009
Motion) in which he petitioned the court to modify the 2009
Order. However, on 18 February 2011, defendant voluntarily
dismissed, without prejudice, his 2009 Motion. On 17 May 2011,
defendant filed a second motion in the cause (2011 Motion) in
which he petitioned the court for a second time to modify the
2009 Order. Defendant again argued that “[d]efendant was lead to
believe that a limited amount of his retirement would be
transferred to the Plaintiff amounting [to] fifty percent (50%)
of the retirement which was paid in between October 24, 1976,
and November 1, 1995.” Based on the foregoing, defendant
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contended that “the division [of the retirement account] should
have been on the active portion of the retirement accumulated
during the marriage between the dates specified in the [1998
Judgment] and nothing more.” Defendant also argued that
“[p]laintiff failed to take reasonable steps at or near the time
of the entry of the [court’s] Order [to] have the portion of the
retirement transferred into her individual name for payment[.]”
Defendant prayed that the court modify the 2009 Order, on the
basis of a mutual mistake of fact, to reflect the agreement
reached by the parties and memorialized in the 1998 Judgment.
On 12 December 2011, the trial court entered an order denying
defendant’s 2011 Motion. Defendant appealed to this Court. We
affirmed the order of the trial court denying defendant’s 2011
Motion on the basis that defendant only established a unilateral
mistake, not a mutual one. See id.
Defendant subsequently filed a Rule 60(b)(4) motion on 12
April 2013, moving the trial court to declare as void the
following: (1) the 2009 Order and (2) the portion of the 1998
Judgment dealing with the division of property. In an order
filed 28 August 2014, the trial court found that the 2009 Order
“did not contain any provision different from the 1998
[Judgment] other than stating the correct calculation of the
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Plaintiff’s interest in the Defendant’s State retirement[.]” It
concluded as a matter of law that defendant’s motion was without
merit, as the 1998 Order called for the entry of a Qualified
Domestic Relations Order, if necessary, or if required by the
Plan Administrator of the State of North Carolina Teachers’ and
State Employees’ Retirement System.
Defendant filed a Rule 59(a) motion for a new trial and
Rule 59(e) motion to alter or amend the 28 August 2013 judgment.
The trial court denied defendant’s Rule 59 motions, concluding
that no grounds exist on which to grant these motions.
Defendant now appeals to this Court.
II. Analysis
Defendant seeks relief on the basis that the 2009 Order is
“void ab initio” because the due process notice requirement was
not met. We disagree.
Here, the trial court neither lacked subject matter
jurisdiction nor was there a violation of defendant’s right to
due process. “The fundamental requirement of due process is the
opportunity to be heard at a meaningful time and in a meaningful
manner.” Mathews v. Eldridge, 424 U.S. 319, 333, 47 L. Ed. 2d
18, 32 (1976) (citation and quotation omitted). “Generally, due
process requires notice and a hearing before the government may
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deprive an individual of liberty or property.” State v. Poole,
___ N.C. App. ___, ___, 745 S.E.2d 26, 34 (2013) writ denied,
review denied, appeal dismissed, ___ N.C. ___, 749 S.E.2d 885
(2013).
On these particular facts, notice to defendant prior to the
entry of the 2009 Order was not a prerequisite for the Order to
be binding on defendant. Defendant was afforded due process at
the time he consented to the terms of the 1998 Judgment.
Although defendant contends in his Rule 60(b)(4) motion that he
“did not have notice or an opportunity to be heard by the court
on the substance of the 1998 [Judgment][,]” we are not
persuaded. Defendant signed the 1998 Judgment before a notary,
and the 1998 Judgment specifically states “WE CONSENT” above the
signature line. The terms of the 1998 Judgment clearly provide
for the entry of a Qualified Domestic Relations Order if
required by the Plan Administrator of the State of North
Carolina Teachers’ and State Employees’ Retirement System, and
it specifically directs the Plan Administrator to make monthly
payments “directly to the Plaintiff of the amount which equals
fifty percent (50%) of the Defendant’s account” from the date of
the parties’ marriage to the date of their separation. By
stipulating to these terms, defendant cannot now argue that the
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trial court erred in entering the 2009 Order, which is premised
entirely on the agreed-upon terms set forth in the 1998
Judgment. See e.g., Holden v. John Alan Holden, 214 N.C. App.
100, 112, 715 S.E.2d 201, 209 (2011) (concluding that when a
consent order clearly stated that the plaintiff was to pay the
defendant a sum certain, and the plaintiff stipulated that she
failed to do so, the plaintiff cannot argue that the trial court
erred in ordering the plaintiff to pay).
In sum, a review of the record reveals that defendant
agreed to the terms set forth in the 1998 Judgment, and the
calculation of plaintiff’s interest in defendant’s retirement
contributions and benefits earned during the marriage and prior
to the date of separation set forth in the 2009 Order is correct
and reflects the agreed-upon terms. There is insufficient
evidence in the record for us to determine whether a copy of the
1998 Judgment was served upon the State of North Carolina
Teachers’ and State Employees’ Retirement System. Regardless,
the 2009 Order provides that a copy of the 2009 Order shall be
served upon the Plan Administrator. We find this to be
sufficient. We overrule defendant’s second argument—that
plaintiff’s failure to serve the North Carolina Teachers’ and
State Employees’ Retirement System a copy of the 1998 Judgment
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rendered the judgment void. We decline to address defendant’s
remaining arguments as he merely “incorporates by reference
prior arguments” and offers no substantive arguments in support
of his final issues. See N.C. R. App. P., Rule 28(b)(6)
(Arguments on appeal must “contain the contentions of the
appellant with respect to each issue presented. Issues not
presented in a party’s brief, or in support of which no reason
or argument is stated, will be taken as abandoned.”).
Affirmed.
Judges CALABRIA and STEPHENS concur.
Report per Rule 30(e).