Collar v. Collar

ORR, Judge.

Defendant contends on appeal that the portion of the 3 April 1985 judgment addressing distribution of marital property is void because it violates the prohibition in N.C.G.S. § 50-21 against court-ordered equitable distribution before the granting of absolute divorce.

Defendant’s appeal is brought pursuant to N.C.G.S. § 1A-1, Rule 60(b)(4), which authorizes a court, on a motion and upon such terms as are just, to relieve a party from a final judgment, order, or proceeding if the judgment is void. N.C.G.S. § 1A-1, Rule 60(b)(4) (1983).

Findings of fact made by a trial judge upon a Rule 60(b) motion are binding on appeal if supported by any competent evidence. Doxol Gas v. Barefoot, 10 N.C. App. 703, 179 S.E. 2d 890 (1971). Whereas, “[t]he conclusions of law made by the judge upon the facts found by him are reviewable on appeal.” Norton v. Sawyer, 30 N.C. App. 420, 422, 227 S.E. 2d 148, 151, disc. rev. denied, 291 N.C. 176, 229 S.E. 2d 689 (1976); Moore v. Deal, 239 N.C. 224, 79 S.E. 2d 507 (1954).

After reviewing the record we are convinced that the judge’s findings of fact are supported by competent evidence. We are not convinced, however, that these facts support the judge’s conclusion of law that the agreement negotiated by the parties was a N.C.G.S. § 50-20(d) agreement, and, thus, excepted from the N.C.G.S. § 50-21 strictures.

N.C.G.S. § 50-21(a) specifically states that the equitable distribution of marital property may not precede a decree of absolute divorce. N.C.G.S. § 50-21 (1984). McKenzie v. McKenzie, 75 N.C. App. 188, 330 S.E. 2d 270 (1985). N.C.G.S. § 50-20(d) provides an exception to this rule, permitting distribution of marital property before absolute divorce, but only; “[1] by [a] written agreement, [2] duly executed and [3] acknowledged in accordance with the provisions of G.S. 52-10 and 52-10.1 . . . .” N.C.G.S. § 50-20(d) (1984).

As the trial court’s findings of fact note, the parties reduced their agreement to writing and orally acknowledged it before a certifying officer. However, as these facts further disclose, defendant refused to sign the agreement. This refusal prevented the agreement from being “duly executed.” The legal definition of “execute” is “. . . to sign .... To perform all necessary formalities, as to make and sign a contract, or sign and deliver a note.” Black’s Law Dictionary 509 (rev. 5th ed. 1979) (emphasis added). Consequently, without the signature of both the husband and the wife, an agreement may not conform to the requirements of N.C.G.S. § 50 20(d).

For this reason, the 3 April 1985 judgment, which effectuated a distribution of the parties’ marital property, must be described as a court-ordered equitable distribution before absolute divorce. Such an action is expressly prohibited by N.C.G.S. § 50-21(a). Accordingly, a judgment ordering such action is without authority, null, and void. McKenzie v. McKenzie, 75 N.C. App. 188, 330 S.E. 2d 270.

This Court concludes, therefore, that the trial court erred in denying defendant’s motion and finds that the portion of the 3 April 1985 judgment pertaining to the distribution of marital property is a nullity and must be vacated.

Vacated.

Judges Arnold and Phillips concur.