Thelen v. Thelen , 53 N.C. App. 684 ( 1981 )

281 S.E.2d 737 (1981)

Carol A. THELEN
v.
Gilbert C. THELEN.

No. 8026DC1025.

Court of Appeals of North Carolina.

September 15, 1981.

Stack & Stephens by Richard D. Stephens, Charlotte, for plaintiff-appellee.

James, McElroy & Diehl, P. A. by William K. Diehl, Jr., Charlotte, for defendant-appellant.

BECTON, Judge.

Defendant initially assigns error to the trial court's reliance upon certain evidence in its decision to grant plaintiff's Rule 60(b) motion and set aside the prior order. He first argues that plaintiff's answers to interrogatories were an inappropriate basis for the trial court's 23 May 1980 ruling since the answers were unsigned and unverified as required by G.S. 1A-1, Rule 33(a). However, we note that the record reveals that these documents were received by defendant sometime after 18 June 1979 and were considered by the court in the prior order of 12 July 1979. We can find no evidence of a motion to strike nor a motion for an order compelling proper answers, pursuant to G.S. 1A-1, Rule 37(a), made by defendant at any time during these proceedings. Under these circumstances, we deem that any objection to form by defendant has been waived. Greene v. United States, 447 F. Supp. 885 (N.D.Ill.1978); cf. Harrington Mfg. Co. v. Powell Mfg. Co., 26 N.C.App. 414, 216 S.E.2d 379, cert. denied 288 N.C. 242, 217 S.E.2d 679 (1975), (absent some overriding constitutional privilege defendant waived its right to object to interrogatories by failing to serve answers or objections to particular questions within time period specified by G.S. 1A-1, Rule 33). The answers to interrogatories, then, formed sufficient bases upon which the trial court reached its conclusions.

Defendant next excepts to the court's reliance upon the 8 March 1979 order of the Maryland court, which awarded arrearages of $3,900 in support payments to plaintiff. He argues that this document was not sufficiently authenticated to be considered by the trial court in its decision. The document in question bears the signature of the Clerk of the Circuit Court for Howard County, Maryland and an attestation by the presiding judge but neither certificate is affixed with the official seal of the Circuit Court of Howard County. Defendant is correct — this document does not satisfy G.S. 1A-1, Rule 44 which mandates the requirements for authentication of an out-of-state official record. However, we do not find prejudicial error. "When findings that are unchallenged, or are supported by competent evidence, are sufficient to support the judgment, the judgment will not be disturbed because another finding, which does not affect the conclusion, is not supported by evidence." Dawson Industries, Inc. v. Godley Construction Co., 29 N.C.App. 270, 275, 224 S.E.2d 266, 269, disc. review denied, 290 N.C. 551, 226 S.E.2d 509 (1976). Although the trial court may have erred in its reliance upon this unauthenticated document, we hold the grant of a new trial can be sustained upon the answers to interrogatories which were sufficient to support the trial court's order.

By his remaining assignments of error, defendant contends that plaintiff failed to establish any entitlement to relief under Rule 60(b) and the court therefore erred in granting her a new hearing. A motion for a new trial, made pursuant to G.S. 1A-1, Rule 60(b), is addressed to the sound discretion of the trial court and its decision is not reviewable on appeal absent a showing of abuse of discretion. Sink v. Easter, 288 N.C. 183, 217 S.E.2d 532 (1975). The trial court's findings of fact are conclusive on appeal, if supported by competent evidence, and our review is limited to the correctness of the conclusions of law derived from the facts found. Wynnewood Corp. v. Soderquist, 27 N.C.App. 611, 219 S.E.2d 787 (1975).

The trial court concluded, from the facts found, that plaintiff was entitled to a new hearing upon the ground of excusable neglect. G.S. 1A-1, Rule 60(b)(1). The general standards for setting aside an adverse judgment in a situation alleged to have been brought about by the negligence of the complaining party's attorney were set out in Dishman v. Dishman, 37 N.C.App. 543, 547, 246 S.E.2d 819, 822-823 (1978), as follows:

What constitutes "excusable neglect" depends on what may be reasonably expected of a party in paying proper attention to his case under all the surrounding circumstances. When a litigant has not properly prosecuted his case because of some reliance on his counsel, the excusability of the neglect on which relief is granted is that of the litigant, not of the attorney. The neglect of the attorney will not be imputed to the litigant unless he is guilty of inexcusable neglect. The law does not demand that a litigant in effect be his own attorney, when he employs one to represent him. The litigant must exercise proper care. But the litigant who employs counsel and communicates the merits of his case may reasonably rely on his counsel and counsel's negligence will not be imputed to him unless he has ample notice either of counsel's negligence or of a need for his own action. (Citations omitted.)

We hold that the facts found by the trial court fully support its conclusion of excusable neglect. The actions of the district attorney for Mecklenburg County, appointed by G.S. 52A-10.1 to represent plaintiff in this hearing, did not constitute adequate representation of a client's interests as required by law. An attorney owes to his client the duty to employ his best efforts in the prosecution of the litigation entrusted to him. Petrou v. Hale, 43 N.C. App. 655, 260 S.E.2d 130, disc. review den. 299 N.C. 332, 265 S.E.2d 397 (1979). "[T]he strength of the attorney's role as advocate is crucial to the success of our judicial system: his duty vigorously to represent his client requires him to present everything admissible that favors his client and to scrutinize by cross-examination everything unfavorable.'" State v. Staley, 292 N.C. 160, 161, 232 S.E.2d 680, 682 (1977). The professional obligation of the district attorney, as appointed counsel, to his client and the court is equivalent to that of privately retained counsel. Cf., State v. Aycoth, 272 N.C. 48, 157 S.E.2d 655 (1967) (discussing professional obligation of court-appointed counsel to his client). The statutory appointment of the "official who prosecutes criminal actions for the State" to represent the obligee in URESA proceedings is not just an empty formality but is designed to guarantee to the complainant effective assistance of counsel in this State. G.S. 52A-10.1; cf. State v. Robinson, 290 N.C. 56, 224 S.E.2d 174 (1976) (discussing right to appointed counsel of indigent criminal defendant). What constitutes proper representation of the obligee by the appointed attorney under G.S. 52A-10.1 cannot be defined by rigid rules but must be determined by the circumstances and necessities of each case. In the case at hand, we hold that the pro forma appearance and presentation of the record to the trial court by the Mecklenburg County district attorney did not meet the standard of competence and diligence required of counsel for the appropriate representation of plaintiff.

We find no reason to impute the neglect of the district attorney in this matter to the plaintiff. Here plaintiff filed her petition in Maryland and entrusted her affairs to local and state government officials who were charged with certain uniform statutory duties. She had a right to assume that her interests would be protected by the District Attorney's office. Plaintiff received no notice of the 12 July 1979 hearing and the record is unclear as to the notice given plaintiff's Maryland attorney. Plaintiff had no indication of the need for personal action on her part or that her interests would not be safeguarded by the officials appointed to represent her.

Even though the facts found justify the court's conclusion of excusable neglect, the judgment should not have been set aside unless the plaintiff also had a meritorious defense to defendant's allegations. Doxol Gas v. Barefoot, 10 N.C.App. 703, 179 S.E.2d 890 (1971). At a hearing for a Rule 60(b) motion it is not required that a meritorious defense be proved, only that a prima facie defense exists. Wynnewood Corp. v. Soderquist, 27 N.C.App. 611, 219 S.E.2d 787 (1975). In her interrogatories and in her verified petition, with accompanying documents, plaintiff alleges her need for increased support based upon rising expenditures for the minor children. She additionally alleges that an incorrect representation of her financial circumstances and those of defendant was presented to the trial court as a result of the "fraud" of the defendant and neglect of her own attorney. We find that plaintiff has presented sufficient allegations to raise, prima facie, a meritorious defense upon a new hearing.

We find no error in the trial court's order setting aside the order of 12 July 1979 and directing a new hearing on the merits of the pleadings in this matter. Accordingly, we

Affirm.

ROBERT M. MARTIN and WHICHARD, JJ., concur.