{ "id": 11438508, "name": "KENT D. ANDERSON, Plaintiff v. VICKY C. ANDERSON, Defendant", "name_abbreviation": "Anderson v. Anderson", "decision_date": "2001-08-07", "docket_number": "No. COA00-1008", "first_page": "453", "last_page": "460", "citations": [ { "type": "official", "cite": "145 N.C. App. 453" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "464 S.E.2d 308", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "312" } ], "opinion_index": 0 }, { "cite": "121 N.C. App. 33", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11915167 ], "year": 1995, "pin_cites": [ { "page": "39" } ], "opinion_index": 0, "case_paths": [ "/nc-app/121/0033-01" ] }, { "cite": "343 S.E.2d 11", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "13" } ], "opinion_index": 0 }, { "cite": "80 N.C. App. 452", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524254 ], "year": 1986, "pin_cites": [ { "page": "455" } ], "opinion_index": 0, "case_paths": [ "/nc-app/80/0452-01" ] }, { "cite": "339 S.E.2d 49", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "pin_cites": [ { "page": "52" } ], "opinion_index": 0 }, { "cite": "79 N.C. App. 236", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520126 ], "year": 1986, "pin_cites": [ { "page": "240" } ], "opinion_index": 0, "case_paths": [ "/nc-app/79/0236-01" ] }, { "cite": "40 S.E.2d 198", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1946, "pin_cites": [ { "page": "201" } ], "opinion_index": 0 }, { "cite": "226 N.C. 706", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624699 ], "year": 1946, "pin_cites": [ { "page": "710" } ], "opinion_index": 0, "case_paths": [ "/nc/226/0706-01" ] }, { "cite": "200 S.E.2d 622", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "pin_cites": [ { "page": "624-25" } ], "opinion_index": 0 }, { "cite": "284 N.C. 407", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562175 ], "year": 1973, "pin_cites": [ { "page": "410" } ], "opinion_index": 0, "case_paths": [ "/nc/284/0407-01" ] }, { "cite": "333 S.E.2d 299", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "304", "parenthetical": "quoting Lane v. Scarborough, 284 N.C. 407, 410, 200 S.E.2d 622, 624-25 (1973)" } ], "opinion_index": 0 }, { "cite": "314 N.C. 219", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4685783 ], "year": 1985, "pin_cites": [ { "page": "227", "parenthetical": "quoting Lane v. Scarborough, 284 N.C. 407, 410, 200 S.E.2d 622, 624-25 (1973)" } ], "opinion_index": 0, "case_paths": [ "/nc/314/0219-01" ] }, { "cite": "323 S.E.2d 738", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1984, "pin_cites": [ { "page": "740" }, { "page": "740" } ], "opinion_index": 0 }, { "cite": "72 N.C. App. 193", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526435 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "195" }, { "page": "195" } ], "opinion_index": 0, "case_paths": [ "/nc-app/72/0193-01" ] }, { "cite": "354 S.E.2d 228", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1987, "pin_cites": [ { "page": "232" }, { "page": "234" }, { "page": "234" }, { "page": "233" } ], "opinion_index": 0 }, { "cite": "319 N.C. 287", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4741751 ], "weight": 4, "year": 1987, "pin_cites": [ { "page": "290" }, { "page": "294" }, { "page": "294" }, { "page": "293" } ], "opinion_index": 0, "case_paths": [ "/nc/319/0287-01" ] }, { "cite": "219 S.E.2d 245", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "pin_cites": [ { "page": "247" } ], "opinion_index": 0 }, { "cite": "27 N.C. App. 349", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553674 ], "year": 1975, "pin_cites": [ { "page": "352" } ], "opinion_index": 0, "case_paths": [ "/nc-app/27/0349-01" ] }, { "cite": "380 S.E.2d 375", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "377" } ], "opinion_index": 0 }, { "cite": "94 N.C. App. 163", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526758 ], "year": 1989, "pin_cites": [ { "page": "166" } ], "opinion_index": 0, "case_paths": [ "/nc-app/94/0163-01" ] }, { "cite": "401 S.E.2d 843", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "845" } ], "opinion_index": 0 }, { "cite": "102 N.C. App. 307", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523652 ], "year": 1991, "pin_cites": [ { "page": "310-11" } ], "opinion_index": 0, "case_paths": [ "/nc-app/102/0307-01" ] }, { "cite": "248 S.E.2d 904", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1978, "pin_cites": [ { "page": "907" }, { "page": "907" } ], "opinion_index": 0 }, { "cite": "38 N.C. App. 664", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8555602 ], "weight": 2, "year": 1978, "pin_cites": [ { "page": "667" }, { "page": "668" } ], "opinion_index": 0, "case_paths": [ "/nc-app/38/0664-01" ] }, { "cite": "320 S.E.2d 418", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1984, "pin_cites": [ { "page": "421" } ], "opinion_index": 0 }, { "cite": "70 N.C. App. 605", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523946 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "608" } ], "opinion_index": 0, "case_paths": [ "/nc-app/70/0605-01" ] } ], "analysis": { "cardinality": 686, "char_count": 15073, "ocr_confidence": 0.732, "pagerank": { "raw": 1.850758144393152e-07, "percentile": 0.7234840718512933 }, "sha256": "255abc4379240db23ea34eca4799dd057c3a2bb1cead227e332e3157e455bc0e", "simhash": "1:4c2fc526371e9c05", "word_count": 2421 }, "last_updated": "2023-07-14T19:02:14.256422+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges MARTIN and HUDSON concur." ], "parties": [ "KENT D. ANDERSON, Plaintiff v. VICKY C. ANDERSON, Defendant" ], "opinions": [ { "text": "HUNTER, Judge.\nVicky C. Anderson (\u201cwife\u201d) appeals an order for summary judgment granted in favor of Kent D. Anderson (\u201chusband\u201d) on wife\u2019s claim for an equitable distribution of husband\u2019s military retirement pension. Wife argues that the trial court erred: (1) by granting summary judgment in husband\u2019s favor without her receiving proper notice of the hearing; (2) by dismissing her claim for equitable distribution without an evidentiary hearing; and, (3) by not deeming her claims for equitable distribution as admitted when husband failed to file a reply to her counterclaims. After a careful review of the record and briefs, we affirm the trial court\u2019s order.\nHusband and wife married on 8 January 1987, in Ridgeland, South Carolina. During the course of the marriage, the couple had three children. Then, on or about 7 October 1997, the parties separated, and prior to divorcing, executed a \u201cMarital Settlement Agreement\u201d (hereinafter, \u201cseparation agreement\u201d). On 8 October 1998, husband filed a complaint against wife for absolute divorce, and shortly thereafter, wife filed an answer and counterclaims for equitable distribution of husband\u2019s military benefits, incorporation of the separation agreement, and specific performance. Subsequently, on 22 December 1998, husband filed a motion for summary judgment. By order signed 8 February 1999, Judge Robert J. Stiehl, III granted husband an absolute divorce and severed wife\u2019s counterclaims for later determination.\nJudge Stiehl heard wife\u2019s claims for equitable distribution, incorporation of the separation agreement, and specific performance on 21 February 2000. At the beginning of the hearing, Judge Stiehl announced in open court that \u201chusband . . . filed for summary judgment pursuant to Rule 56, alleging that the separation agreement entered into between the parties was a property settlement and that the wife\u2019s claim for [equitable distribution] was thus barred.\u201d Husband then notified the court that the parties settled all other issues except for wife\u2019s counterclaim for equitable distribution of the military retirement pension, and both parties stipulated to the settlement. The court then noted that it had considered legal authority previously given to him by the parties on the equitable distribution issue. At the close of the parties\u2019 arguments, the court granted husband\u2019s motion for summary judgment holding that the separation agreement barred wife\u2019s claim for an equitable distribution of husband\u2019s military pension. Wife now appeals.\nWife first assigns as error the trial court\u2019s entry of summary judgment in husband\u2019s favor without proper notice of the hearing to wife. Specifically, she contends that husband\u2019s motion for summary judgment applied only to his verified complaint and not to her counterclaims, and as such, she argues that she had no notice of the hearing on the equitable distribution issue. We disagree.\nRule 56 of the North Carolina Rules of Civil Procedure states that a motion for summary judgment \u201cshall be served at least 10 days before the time fixed for the hearing.\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 56(c) (1999). Wife cites Tri City Building Components v. Plyler Construction, 70 N.C. App. 605, 320 S.E.2d 418 (1984) for the proposition that such notice is mandatory and that this Court has found reversible error when a party fails to give the required notice.\nWhile Rule 56 notice is mandatory, the very case that wife cites in support of her argument also recognizes that notice can be waived: \u201cdismissing a party\u2019s claim or defense by summary judgment is too grave a step to be taken on short notice; unless, of course, the right to notice that those opposing summary judgment have under Rule 56(c) is waived.\u201d Tri City, 70 N.C. App. at 608, 320 S.E.2d at 421. This waiver is possible because \u201c[t]he notice required by [Rule 56] is procedural notice as distinguished from constitutional notice . . . .\u201d Raintree Corp. v. Rowe, 38 N.C. App. 664, 667, 248 S.E.2d 904, 907 (1978). A party waives notice of a motion by attending the hearing of the motion and by participating in the hearing without objecting to the improper notice or requesting a continuance for additional time to produce evidence. Raintree, 38 N.C. App. at 668, 248 S.E.2d at 907; Messer v. Laurel Hill Associates, 102 N.C. App. 307, 310-11, 401 S.E.2d 843, 845 (1991); Westover Products, Inc. v. Gateway Roofing, Inc., 94 N.C. App. 163, 166, 380 S.E.2d 375, 377 (1989); Story v. Story, 27 N.C. App. 349, 352, 219 S.E.2d 245, 247 (1975).\nIn the present case, prior to the hearing on the motion, wife proffered legal authority to the trial court in support of her position that the agreement did not preclude her equitable distribution claim. Additionally, wife attended and participated in the hearing; she failed to raise any objection regarding improper notice or to the proceedings; and, she did not request any additional time to prepare or to produce evidence. Moreover, wife has made no showing that if she had received separate notice of the motion that she would have been more prepared or able to present additional authority. Therefore, wife, by attending the hearing and participating without objection, waived the procedural notice otherwise required by Rule 56. Consequently, we find no error with the trial court\u2019s hearing the summary judgment motion.\nNext, wife assigns error to the trial court\u2019s dismissal of her claim for equitable distribution without an evidentiary hearing. She contends that the separation agreement was not intended to settle all property claims arising out of the marriage. Particularly, she argues that the separation agreement did not contemplate husband\u2019s military retirement benefits. Again, we find no error.\nWife has made no contention, either before this Court or at the hearing, that any issue of material fact exists as to the disposition of this issue. Furthermore, she did not contend that the separation agreement was executed under coercion, duress, or other disability. Therefore, the trial court needed only to determine the legal effect of the separation agreement.\nHusband and wife, upon divorce, may determine for themselves how to divide their marital estate by entering into a valid separation agreement in lieu of an equitable distribution by judicial determination. Hagler v. Hagler, 319 N.C. 287, 290, 354 S.E.2d 228, 232 (1987). Further, \u201c[N.C. Gen. Stat. \u00a7] 52-10 allows [a] husband and wife to enter a separation agreement which \u2018release[s] and quitclaim[s]\u2019 any property rights acquired by marriage, and ... a release will bar any later claim on the released property[, and such an agreement] is an enforceable contract between husband and wife.\u201d Blount v. Blount, 72 N.C. App. 193, 195, 323 S.E.2d 738, 740 (1984).\nThe trial court determines as a matter of law the construction of a clear and unambiguous contract. Hagler, 319 N.C. at 294, 354 S.E.2d at 234. \u201c \u2018. . . When a contract is in writing and free from any ambiguity which would require resort to extrinsic evidence, or the consideration of disputed fact, the intention of the parties is a question of law....\u2019 \u201d Bicycle Transit Authority v. Bell, 314 N.C. 219, 227, 333 S.E.2d 299, 304 (1985) (quoting Lane v. Scarborough, 284 N.C. 407, 410, 200 S.E.2d 622, 624-25 (1973)). In construing a separation agreement, the same rules used in contract interpretation generally apply, thus, \u201c[w]here the terms of a separation agreement are plain and explicit, the court will determine the legal effect and enforce it as written by the parties.\u201d Blount, 72 N.C. App. at 195, 323 S.E.2d at 740.\n\u201cIt is a well-settled principle of legal construction that \u2018[i]t must be presumed the parties intended what the language used clearly expresses, and the contract must be construed to mean what on its face it purports to mean.\u2019 \u201d Hagler, 319 N.C. at 294, 354 S.E.2d at 234 (quoting Indemnity Co. v. Hood, 226 N.C. 706, 710, 40 S.E.2d 198, 201 (1946)).\n\u201cWhether . . . the language of a contract is ambiguous or unambiguous is a question for the court to determine. ...\u201d\nPiedmont Bank & Trust Co. v. Stevenson, 79 N.C. App. 236, 240, 339 S.E.2d 49, 52 (1986). In making this determination, \u201cwords are to be given their usual and ordinary meaning and all the terms of the agreement are to be reconciled if possible . ...\u201d Id.\nHartman v. Hartman, 80 N.C. App. 452, 455, 343 S.E.2d 11, 13 (1986). Manifestly, whether the separation agreement barred wife\u2019s equitable distribution claim is a question of law susceptible to summary disposition, and as such, no additional evidence was required for the trial court to determine the legal effect of the agreement. Therefore, based on the plain and unambiguous language of the separation agreement, we hold wife\u2019s claim for an equitable distribution of husband\u2019s military pension is barred as a matter of law.\nWe note that \u201cthe very existence of the agreement evinces an intention by the parties to determine for themselves what their property division should be and what their future relationship is to be, rather than to leave these decisions to a court of law.\u201d Hagler, 319 N.C. at 293, 354 S.E.2d at 233. Here, the agreement clearly establishes an intention by the parties to resolve for themselves any and all matters arising from their marriage. The separation agreement plainly states that the parties intended to \u201csettle by agreement all of their marital affairs with respect to property\u201d and that the agreement is intended to constitute the \u201cfull and entire contract of the parties.\u201d (Emphasis added.) Moreover, the separation agreement provides a section expressly for the division of property which, taken in light of the conclusive language used elsewhere in the agreement serves as the sole and complete division of the marital estate.\nFurthermore, the separation agreement evinces an intent by the parties to resolve all issues arising from the marriage by pre-eluding any future actions and by expressly making the agreement binding \u201cupon the heirs, assigns, executors, administrators, successors in interest and representatives of each party.\u201d Also, the separation agreement proves that the parties meant for neither to interfere with the other thereafter and that they are to \u201cpermanently live separate and apart from the other party, free from any control, restraint, or interference, direct or indirect, by the other party, and in all respects to live as if he or she were sole and unmarried.\u201d\nWife made no showing that the separation agreement was not intended to be the final agreement of the parties or that the military pension was excluded from the initial agreement. In fact, the separation agreement\u2019s child support provision considers husband\u2019s military retirement benefits pursuant to a plan for support reduction stating that the support \u201cshall be reduced ... to the amount of 50% of the husband[\u2019]s military retirement benefits . . . .\u201d (Emphasis added.) For these reasons, we conclude that the trial court did not err in finding as a matter of law that the separation agreement constitutes the final and full contract of the parties and bars wife\u2019s counterclaim for an equitable distribution of husband\u2019s military pension.\nFinally, wife assigns error to the trial court\u2019s failure to deem her claim for equitable distribution as admitted. Here, wife primarily argues that husband\u2019s failure to file a reply to her counterclaims should carry the same sanctions for failure to file an answer to a complaint. Specifically, wife cites N.C. Gen. Stat. \u00a7 1A-1, Rule 8(d) (1999), which requires the filing of a reply to a claim or else the claim is deemed admitted. This assignment is dismissed.\nN.C.R. App. P. 10(b)(1) provides, \u201c[i]n order to preserve a question for appellate review, a party must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling the party desired the court to make . . . .\u201d See Hieb v. Lowery, 121 N.C. App. 33, 39, 464 S.E.2d 308, 312 (1995). Wife did not raise this issue before the trial court, nor did she bring it up at any other time except that it appears as an assignment of error in the record and as an issue in her brief. Since wife failed to raise this issue before the lower court, we refuse to address the issue for the first time on appeal. This assignment of error is therefore dismissed.\nFor the reasons set out above, this Court affirms the trial court\u2019s grant of summary judgment in husband\u2019s favor.\nAffirmed.\nJudges MARTIN and HUDSON concur.", "type": "majority", "author": "HUNTER, Judge." } ], "attorneys": [ "Reid, Lewis, Deese, Nance & Person, LLP, by Penny W. Deese, for plaintiff-appellee.", "Beaver, Holt, Stemlicht, Burge, Glaizer, Carlin & Britton, P.A., by F. Thomas Holt, III, for defendant-appellant." ], "corrections": "", "head_matter": "KENT D. ANDERSON, Plaintiff v. VICKY C. ANDERSON, Defendant\nNo. COA00-1008\n(Filed 7 August 2001)\n1. Divorce\u2014 equitable distribution \u2014 military retirement pension \u2014 notice\u2014waiver\nThe trial court did not err by granting summary judgment in favor of plaintiff husband on defendant wife\u2019s counterclaim for an equitable distribution of plaintiff\u2019s military retirement pension even though defendant contends she had no notice of the hearing, because: (1) defendant waived procedural notice required by N.C.G.S. \u00a7 1A-1, Rule 56 by attending and participating in the hearing without raising any objection regarding improper notice, and she did not request any additional time to prepare or to produce evidence; and (2) defendant made no showing that if she had received separate notice of the summary judgment motion, she would have been more prepared or able to present additional authority.\n2. Divorce\u2014 equitable distribution \u2014 separation agreement\u2014 military retirement pension \u2014 failure to hold evidentiary hearing\nThe trial court did not err by dismissing defendant wife\u2019s counterclaim for an equitable distribution of plaintiffs military retirement pension without an evidentiary hearing, because: (1) the parties\u2019 separation agreement bars defendant\u2019s claim as a matter of law so that no additional evidence was required for the trial court to determine the legal effect of the agreement when the agreement establishes an intention by the parties to resolve for themselves any and all matters arising from their marriage; and (2) defendant made no showing that the separation agreement was not intended to be the final agreement of the parties or that the military pension was excluded from the initial agreement.\n3. Appeal and Error\u2014 preservation of issues \u2014 failure to raise issue before trial court\nAlthough defendant wife contends the trial court erred by failing to deem defendant\u2019s counterclaim for equitable distribution of plaintiff husband\u2019s military pension as admitted under N.C.G.S. \u00a7 1A-1, Rule 8(d) based on plaintiff\u2019s failure to file a reply to defendant\u2019s counterclaims, defendant did not preserve this issue because she did not raise it before the trial court as required by N.C. R. App. R 10(b)(1).\nAppeal by defendant from an order entered 2 May 2000 by Judge Robert J. Stiehl, III in Cumberland County District Court. Heard in the Court of Appeals 7 June 2001.\nReid, Lewis, Deese, Nance & Person, LLP, by Penny W. Deese, for plaintiff-appellee.\nBeaver, Holt, Stemlicht, Burge, Glaizer, Carlin & Britton, P.A., by F. Thomas Holt, III, for defendant-appellant." }, "file_name": "0453-01", "first_page_order": 483, "last_page_order": 490 }