Macher v. Macher , 188 N.C. App. 537 ( 2008 )

STEPHENS, Judge.

Abe Morris Macher ("Defendant") appeals from an order denying his motion for Rule *28360(b) relief from a divorce judgment entered 28 October 1998. We affirm.

Ollie Mae Macher, n/k/a Ollie Mae Harris, ("Plaintiff') and Defendant were married on 15 July 1993. The parties resided in Maryland until 1996, when Plaintiff moved to North Carolina. The parties separated on 27 May 1997.

At 11:36 a.m. on 28 October 1998, Plaintiff filed a complaint for absolute divorce.¹ Several documents were filed in the action later that afternoon. At 1:52 p.m., an uncaptioned pleading was filed which stated:

I am Answering 98 CVD 708, a Complaint for Divorce my Wife has filed in Granville County. I am the Defendant. I admit all of the allegations. I acknowledge that I have been served with the Complaint. I am a Medical Doctor in Bethesda, Maryland[,] and have traveled to North Carolina today to expedite my Divorce. I do not wish to retain an attorney in this matter. With the upcoming wedding this weekend, I wholeheartedly consent to the Divorce. I hereby waive any further notice of hearing, and am aware that my wife's attorney will be seeking a Divorce today[,] October 28[,] 1998[,] by way of Summary Judgment, and I consent to that[.]

Sincerely,

/s/ Abe Morris Macher, MD

This pleading (the "answer") also contained a notary's signature and stamp, and the following notarial certificate: "Sworn to and Subscribed before me on this the 28 day of October, 98." At 1:53 p.m., Plaintiff filed a motion for summary judgment, asking the trial court to grant an absolute divorce. The summary judgment motion contained the signature, "Abe Morris Macher, MD[,]" and the same notarial certificate as was contained on the answer. At 2:07 p.m., Plaintiff filed a divorce judgment, signed by the Honorable J. Henry Banks, dissolving the bonds of matrimony between the parties.

On or about 16 February 2006, Defendant was served with a summons to appear in federal court on seven charges of embezzling money from the United States government, his employer. The affidavit in support of the federal criminal complaint alleged that Defendant, knowing that the parties were divorced, had claimed Plaintiff as a dependent wife on a federal government housing allowance form each year from 1999 to 2005.

On 28 August 2006, Defendant filed a Rule 60(b) motion for relief from the 1998 divorce judgment on the ground that the judgment was void and should be set aside. In support of the motion, Defendant filed two affidavits: one by Defendant and one by a former wife of Defendant. Both Defendant and the former wife swore that the signatures on the answer and summary judgment motion were not Defendant's signatures.

A hearing on Defendant's Rule 60(b) motion was held 21 November 2006 by Judge Banks. The trial court heard testimony from the notary, Plaintiffs attorney in the divorce proceeding, and Defendant. Additionally, Defendant entered in evidence exhibits which, Defendant contended supported his testimony that the signatures on the answer and motion for summary judgment were not his. The former wife's affidavit was not entered in evidence. That day, Judge Banks entered an order denying Defendant's Rule 60(b) motion. From this order, Defendant appeals.

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, 631 S.E.2d 114 (2006). A trial court may be reversed for abusing its discretion only upon a showing that its ruling was "``manifestly unsupported by reason.'" Id. at 523, 631 S.E.2d at 118 (quoting Clark v. Clark, 301 N.C. 123, 129, 271 S.E.2d 58, 63 (1980)). "``A ruling committed to a trial court's discretion is to be accorded great deference and will be upset only upon a showing that it was so arbitrary that it could not have been the result of a reasoned decision.'" Id, (quoting White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985)).

"Rule 60(b)(4) provides relief from judgments that are void...." Freeman v.

*284Freeman, 155 N.C.App. 603, 606, 573 S.E.2d 708, 711 (2002), disc. review denied, 357 N.C. 250, 582 S.E.2d 32 (2003); see also N.C. Gen.Stat. § 1A-1, Rule 60(b) (2005). A judgment against a defendant is void where the court was without personal jurisdiction. Freeman, 155 N.C.App. 603, 573 S.E.2d 708. "Jurisdiction over the person of a defendant is obtained by service of process upon him, by his voluntary appearance, or consent." Hale v. Hale, 73 N.C.App. 639, 641, 327 S.E.2d 252, 253 (1985) (citing In re Peoples, 296 N.C. 109, 250 S.E.2d 890 (1978), cert. denied, 442 U.S. 929, 99 S.Ct. 2859, 61 L.Ed.2d 297 (1979)). "The filing of an answer is equivalent to a general appearance, and a general appearance waives all defects and irregularities in the process and gives the court jurisdiction of the answering party even though there may have been no service of summons." Harmon v. Harmon, 245 N.C. 83, 86, 95 S.E.2d 355, 359. (1956) (citations omitted).

The issue before the trial court in this case was whether Defendant signed the answer, thereby conferring personal jurisdiction upon the court in the divorce proceeding. The purported answer is signed "Abe Morris Macher, MD[.]" The notarial certificate on the answer states, "Sworn to and Subscribed before me on this the 28 day of October, 98[,]" and is stamped and signed by a notary. The notary who created the notarial certificate testified that although she had no memory of ever meeting Defendant, it was her practice to require the person whose signature she was notarizing to produce identification and to make the signature in front of her. Plaintiff's lawyer in the divorce action testified that Defendant contacted him before the divorce judgment was entered and asked "what was taking it so long to get done." This evidence tends to support Plaintiffs contention that Defendant signed the answer.

Defendant's attorney advised the trial court that she could not offer the testimony of an expert witness in handwriting analysis because original copies of the answer and summary judgment motion could not be located. Defendant, however, testified that he did not sign the answer and that the signature thereon did not resemble his signature. In support of the latter contention, Defendant entered in evidence copies of the housing allowance forms which he had submitted almost every year between 1982 and 2005 and which contained his signature. Defendant also submitted a copy of a separation agreement signed by the parties in 2005, more than six years after the divorce judgment was entered.² Finally, Defendant acknowledged that he was being federally prosecuted for embezzling money from the United States government because he had claimed Plaintiff as his dependent wife in the years following the 1998 divorce judgment.

We agree with the trial court that there are "some obvious serious concerns" in this case. Nevertheless, the evidence conflicted on the issue of whether Defendant signed the answer. "The weight, credibility, and convincing force of such evidence is for the trial court, who is in the best position to observe the witnesses and make such determinations." Freeman, 155 N.C.App. at 608, 573 S.E.2d at 712 (citing Upchurch v. Upchurch, 128 N.C.App. 461, 495 S.E.2d 738, disc. review denied, 348 N.C. 291, 501 S.E.2d 925 (1998)). Because there was evidence from which the trial court could have concluded that Defendant signed the answer, the trial court's ruling was not manifestly unsupported by reason or so arbitrary that it could not have been the result of a reasoned decision. The trial court did not abuse its discretion in resolving the evidentiary conflict in favor of Plaintiff, and its judgment is affirmed.

AFFIRMED.

Judge McCULLOUGH concurs.

Judge CALABRIA dissents in a separate opinion.

1. The summons included in the record on appeal is not file stamped, but the deputy clerk of court who issued the summons wrote that it was issued "11-28-98" also at 11:36 a.m. In his brief, Defendant states that the summons was filed on 28 October 1998.

2. Plaintiff signed the separation agreement as "Ollie M. Harris."