{
  "id": 8522350,
  "name": "RICHARD JACK TOPPER v. BONNIE EVERHART TOPPER",
  "name_abbreviation": "Topper v. Topper",
  "decision_date": "1992-01-21",
  "docket_number": "No. 9121DC90",
  "first_page": "239",
  "last_page": "242",
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    "name_abbreviation": "N.C. Ct. App.",
    "id": 14983,
    "name": "North Carolina Court of Appeals"
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    "name": "N.C."
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      "year": 1987,
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      "reporter": "S.E.2d",
      "year": 1984,
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    {
      "cite": "70 N.C. App. 270",
      "category": "reporters:state",
      "reporter": "N.C. App.",
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  "last_updated": "2023-07-14T19:24:40.355340+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Judges LEWIS and WALKER concur."
    ],
    "parties": [
      "RICHARD JACK TOPPER v. BONNIE EVERHART TOPPER"
    ],
    "opinions": [
      {
        "text": "WELLS, Judge.\nThe forecast of evidence before the trial court shows that on 10 March 1986, plaintiff and defendant entered into a separation agreement and property settlement. In that document the parties agreed to a division and distribution of their property, releasing and discharging each other from all claims, rights, and duties arising out of their marriage except as set forth in the agreement. The document contains, inter alia, three paragraphs pertinent to defendant\u2019s appeal as follows:\nSection Five: Conclusion\nArticle I.\nVoluntary Execution-. Each of the parties hereto acknowledge that the provisions, of this Agreement and their legal effect have been reviewed by the parties, and each party acknowledges that the Agreement is fair and equitable, that it is being entered into voluntarily, and that it was not the result of any duress or undue influence.\nArticle II.\nENTIRE Agreement: The parties acknowledge that this Agreement contains the entire undertaking of the parties, that there are no representations, warranties, covenants or undertakings other than those expressly set forth in this Agreement.\nArticle III.\nEquitable Distribution: Husband and Wife both acknowledge and agree that the property settlement herein contained constitutes an equitable distribution of all marital property and the parties hereby waive any further rights to an equitable distribution of property pursuant to NCGS \u00a7 50-20 et seq. This Agreement is made pursuant to the provisions of NCGS \u00a7 50-20(d) and shall be binding on both Husband and Wife.\nDefendant\u2019s counterclaim asserted a statutory claim for equitable distribution, but made no mention of the separation agreement and property settlement. In one of her arguments to this Court, defendant attempts a poorly focused attack on the trial court\u2019s summary judgment for plaintiff, implying that defendant was never allowed to show the trial court that the separation agreement and property settlement was procured by plaintiff\u2019s fraud in plaintiff\u2019s \u201cevaluation\u201d of the marital assets, because plaintiff argued to the trial court that such a claim was barred by the statute of limitations. Defendant has not provided this Court with a transcript of the arguments presented to the trial court. Plaintiff\u2019s motion for summary judgment does not mention fraud or lack of fraud or the application of any statute of limitations to any such possible claim nor does the judgment of the trial court. This argument therefore does not present any question properly presented for our review and we therefore reject it summarily.\nDefendant then attempts to argue in her brief that the agreement was obtained by fraud. The record before us does not reflect that any such issue or question was ever properly raised in the court below; it cannot be raised for the first time here. Gillis v. Whitley\u2019s Discount Auto Sales, Inc., 70 N.C. App. 270, 319 S.E.2d 661 (1984).\nOur law favors settlements of property disputes between divorcing persons. Hagler v. Hagler, 319 N.C. 287, 354 S.E.2d 228 (1987). \u201cA valid separation agreement that waives rights to equitable distribution will be honored by the courts and will be binding on the parties.\u201d Id. (Citations omitted). The agreement in this case was lengthy, thorough, well-drafted, and contained language which makes it abundantly clear that defendant, who was represented by counsel, entered into the agreement voluntarily, willingly, and with full understanding of its implications pertaining to her entitlement to marital property.\nFor the reasons stated, the judgment below from which defendant has attempted to appeal must be and is\nAffirmed.\nJudges LEWIS and WALKER concur.",
        "type": "majority",
        "author": "WELLS, Judge."
      }
    ],
    "attorneys": [
      "Davis & Harwell, P.A., by Joslin Davis and Robin J. Stinson, for plaintiff-appellee.",
      "Greeson, Grace and Gatto, P.A., by Joseph J. Gatto and Lisa S. Costner; and David F. Tamer; for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "RICHARD JACK TOPPER v. BONNIE EVERHART TOPPER\nNo. 9121DC90\n(Filed 21 January 1992)\nAppeal and Error \u00a7 447 (NCI4th)\u2014 issues raised for first time on appeal \u2014 appeal dismissed\nDefendant\u2019s appeal from summary judgment for plaintiff on a claim for equitable distribution is dismissed where defendant attempted to raise for the first time on appeal issues of fraud and the statute of limitations.\nAm Jur 2d, Appeal and Error \u00a7 545.\nAPPEAL by defendant from judgment entered 28 August 1988 in FORSYTH County District Court by Judge Margaret L. Sharpe. Heard in the Court of Appeals 6 November 1991.\nIn January 1990, plaintiff brought this action for absolute divorce. Defendant answered admitting the grounds for divorce, asked for a divorce, and asserted a claim for equitable distribution of the parties\u2019 marital estate.\nPlaintiff filed a reply in which he asserted as a bar to defendant\u2019s equitable distribution claim that the parties had entered into a separation agreement and property settlement.\nAfter a consent order severing the issues, the trial court entered a judgment granting plaintiff an absolute divorce. Plaintiff then duly moved the court for summary judgment in his favor on the claim for equitable distribution. From the trial court\u2019s judgment granting that motion, defendant has appealed.\nDavis & Harwell, P.A., by Joslin Davis and Robin J. Stinson, for plaintiff-appellee.\nGreeson, Grace and Gatto, P.A., by Joseph J. Gatto and Lisa S. Costner; and David F. Tamer; for defendant-appellant."
  },
  "file_name": "0239-01",
  "first_page_order": 267,
  "last_page_order": 270
}