Mason v. Mason , 22 N.C. App. 494 ( 1974 )

206 S.E.2d 764 (1974) 22 N.C. App. 494

Ben C. MASON
v.
Grace T. MASON.

No. 7411DC475.

Court of Appeals of North Carolina.

July 17, 1974.

Wilson, Bowen & Lytch by Wiley F. Bowen, Dunn, for plaintiff appellant.

No counsel contra.

HEDRICK, Judge.

G.S. § 1A-1, Rule 60(b)(1) of the Rules of Civil Procedure provides that a party may be relieved from a final judgment on the following grounds: "Mistake, inadvertence, surprise, or excusable neglect." Determination of whether excusable neglect, inadvertence, or surprise has been shown is a question of law, not a question of fact, Equipment, Inc. v. Lipscomb, 15 N.C.App. 120, 189 S.E.2d 498 (1972); and the conclusion reached is final "unless, exception is made that there was no evidence to support the findings of fact, or that there was a failure to find sufficient material facts [to support the conclusion]." Ellison v. White, 3 N.C. App. 235, 164 S.E.2d 511 (1968), cert. denied 275 N.C. 137 (1969).

Plaintiff contends that the order setting aside the judgment was improperly granted because (1) the trial court failed to find sufficient facts to support its conclusion that the defendant was entitled to relief from the judgment of absolute divorce because of mistake, inadvertence or excusable neglect, and (2) the record is devoid of any evidence which would support such findings.

While the trial court did make certain findings, we are of the opinion that the findings made are not sufficient to support an order setting aside a final judgment on the grounds of "mistake, inadvertence or excusable neglect". Moreover, there is a complete absence from this record of any evidence to support the findings of fact made by the trial judge. Indeed, the trial judge made it clear that he was making his findings and conclusions from the record and that he was not going to hear any evidence. The order setting aside the final judgment clearly reflects that the trial judge considered matters which are not included in the record on appeal.

For the reasons stated, the order appealed from is vacated and the cause is remanded to the District Court for further proceedings not inconsistent with this opinion.

Vacated and remanded.

MORRIS and BALEY, JJ., concur.