{ "id": 8411073, "name": "EDNA BARFIELD LEE, Plaintiff v. LINWOOD EARL LEE SR., Defendant", "name_abbreviation": "Lee v. Lee", "decision_date": "2004-12-07", "docket_number": "No. COA04-6", "first_page": "250", "last_page": "259", "citations": [ { "type": "official", "cite": "167 N.C. App. 250" } ], "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": "276 S.E.2d 422", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "435" } ], "opinion_index": 0 }, { "cite": "302 N.C. 403", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567220 ], "year": 1981, "pin_cites": [ { "page": "422" } ], "opinion_index": 0, "case_paths": [ "/nc/302/0403-01" ] }, { "cite": "379 S.E.2d 665", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "667" } ], "opinion_index": 0 }, { "cite": "94 N.C. App. 36", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526529 ], "year": 1989, "pin_cites": [ { "page": "40" } ], "opinion_index": 0, "case_paths": [ "/nc-app/94/0036-01" ] }, { "cite": "420 S.E.2d 479", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1992, "pin_cites": [ { "page": "480", "parenthetical": "quoting Anderson Trucking Service v. Key Way Transport, 94 N.C. App. 36, 40, 379 S.E.2d 665, 667 (1989)" }, { "page": "480-81", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "107 N.C. App. 479", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527719 ], "year": 1992, "pin_cites": [ { "page": "481", "parenthetical": "quoting Anderson Trucking Service v. Key Way Transport, 94 N.C. App. 36, 40, 379 S.E.2d 665, 667 (1989)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/107/0479-01" ] }, { "cite": "400 S.E.2d 71", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "73" } ], "opinion_index": 0 }, { "cite": "101 N.C. App. 550", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527964 ], "year": 1991, "pin_cites": [ { "page": "553" } ], "opinion_index": 0, "case_paths": [ "/nc-app/101/0550-01" ] }, { "cite": "314 S.E.2d 814", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1984, "pin_cites": [ { "page": "819-20" } ], "opinion_index": 0 }, { "cite": "68 N.C. App. 74", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526700 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "80" } ], "opinion_index": 0, "case_paths": [ "/nc-app/68/0074-01" ] }, { "cite": "525 S.E.2d 843", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2000, "pin_cites": [ { "page": "847" }, { "page": "846" }, { "page": "847" } ], "opinion_index": 0 }, { "cite": "136 N.C. App. 787", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11242088 ], "weight": 3, "year": 2000, "pin_cites": [ { "page": "792" }, { "page": "792" }, { "page": "792" } ], "opinion_index": 0, "case_paths": [ "/nc-app/136/0787-01" ] }, { "cite": "433 S.E.2d 782", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1993, "pin_cites": [ { "page": "784" } ], "opinion_index": 0 }, { "cite": "111 N.C. App. 822", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524228 ], "year": 1993, "pin_cites": [ { "page": "825" } ], "opinion_index": 0, "case_paths": [ "/nc-app/111/0822-01" ] }, { "cite": "102 S.E.2d 791", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1958, "pin_cites": [ { "page": "795" } ], "opinion_index": 0 }, { "cite": "248 N.C. 113", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8620697 ], "year": 1958, "pin_cites": [ { "page": "118" } ], "opinion_index": 0, "case_paths": [ "/nc/248/0113-01" ] }, { "cite": "222 S.E.2d 756", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "757", "parenthetical": "quoting Shaver v. Shaver, 248 N.C. 113, 118, 102 S.E.2d 791, 795 (1958)" } ], "opinion_index": 0 }, { "cite": "29 N.C. App. 31", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553893 ], "year": 1976, "pin_cites": [ { "page": "32", "parenthetical": "quoting Shaver v. Shaver, 248 N.C. 113, 118, 102 S.E.2d 791, 795 (1958)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/29/0031-01" ] }, { "cite": "418 S.E.2d 841", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1992, "pin_cites": [ { "page": "845" } ], "opinion_index": 0 }, { "cite": "107 N.C. App. 154", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527276 ], "year": 1992, "pin_cites": [ { "page": "160" } ], "opinion_index": 0, "case_paths": [ "/nc-app/107/0154-01" ] } ], "analysis": { "cardinality": 767, "char_count": 20397, "ocr_confidence": 0.743, "pagerank": { "raw": 8.934951276432694e-08, "percentile": 0.5009514068194709 }, "sha256": "8b1853a6589143eafb41f9a6e9372ba6f1788c196483dd5d51e33dbc1aa3855c", "simhash": "1:8cebc0ae250fed73", "word_count": 3321 }, "last_updated": "2023-07-14T15:53:28.670431+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WYNN and THORNBURG concur." ], "parties": [ "EDNA BARFIELD LEE, Plaintiff v. LINWOOD EARL LEE SR., Defendant" ], "opinions": [ { "text": "HUNTER, Judge.\nEdna Barfield Lee (\u201cplaintiff\u2019) appeals from an order entered 20 May 2003 pursuant to a hearing on a Rule 60(b)(6) motion. On appeal, plaintiff contends error in the trial court\u2019s order that plaintiff pay all fees and penalties associated with the lump sum transfer of funds from Linwood Earl Lee Sr.\u2019s (\u201cdefendant\u201d) retirement account, and that plaintiff pay defendant an additional sum of money monthly from her pension benefits. Defendant appeals from the same order, contending the trial court abused its discretion in denying defendant\u2019s Motion to Set Aside Judgment pursuant to Rule 60. As we find insufficient evidence to support the trial court\u2019s conclusion as to the additional payments by plaintiff, we reverse the order in part and remand for additional findings.\nOn 11 June 1998, plaintiff and defendant entered into a consent order to settle all outstanding claims between the parties pursuant to their separation and divorce. This consent order included settlement of all equitable distribution claims and specified that \u201c [t]he parties\u2019 respective retirement plans shall be divided pursuant to qualified domestic relations order (QDRO) as outlined and detailed in the Findings of Fact contained in this Order.\u201d\nThe relevant findings of fact specified preparation of three QDROs, the first and third of which were contested by defendant in this action. The first (\u201cQDRO 1\u201d), divided defendant\u2019s retirement account. Plaintiff, on the five-year anniversary of the account, 1 January 2003, was to receive the greater of $402,393.00 (hereinafter \u201clump sum payment\u201d) or one-half of whatever monies were in the account on that date. The third QDRO (\u201cQDRO 3\u201d) provided defendant with thirty-six percent of the plaintiff\u2019s monthly pension upon her retirement. After review and consent of the respective parties of each order, QDRO 1 was entered on 27 June 1998 and QDRO 3 was entered on 27 June 2001. QDRO 2 was not contested by either party.\nOn 10 March 2003, defendant filed a Motion in the Cause for Rehearing, and in the alternative, a Rule 60 Motion to Set Aside the terms of the equitable distribution settlement. Plaintiff responded with a motion for contempt. The trial court heard the respective motions on 23 April 2003 and entered an order on 20 May 2003 which: (1) denied defendant\u2019s request for judgment pursuant to his Rule 60(b) motion; (2) granted plaintiff\u2019s motion for contempt for failure to sign the necessary forms to effectuate the distribution of the lump-sum payment; (3) ordered all fees and penalties associated with the transfer of the lump sum payment to be paid by plaintiff; and (4) ordered plaintiff to pay defendant the difference between the actual amount received from plaintiff\u2019s pension plan and thirty-six percent of her current monthly benefit, a sum of $326.96 per month. Both parties appeal from this order.\nI.\nWe first address plaintiff\u2019s two assignments of error, that the trial court erred in (1) ordering plaintiff to pay all fees and penalties associated with the lump sum transfer of funds from defendant\u2019s retirement account, and (2) entering an order of additional payments to defendant from plaintiffs pension.\n1. Order of Payment of Fees and Penalties by Plaintiff\nPlaintiff contends in her first assignment of error that the trial court erred in ordering plaintiff to pay all fees and penalties associated with the lump sum transfer of funds from defendant\u2019s retirement account. Plaintiff argues that the trial court\u2019s conclusion of law was not supported by the evidence and findings of fact. We disagree.\n\u201cIt is well settled in this jurisdiction that when the trial court sits without a jury, the standard of review on appeal is whether there was competent evidence to support the trial courfs findings of fact and whether its conclusions of law were proper in light of stich facts.\u201d Shear v. Stevens Building Co., 107 N.C. App. 154, 160, 418 S.E.2d 841, 845 (1992). While findings of fact by the trial court in a non-jury case are conclusive on appeal if there is evidence to support those findings, conclusions of law are reviewable de novo. Id.\nHere, plaintiff contends there was no competent evidence to support the trial court\u2019s findings of fact No. 8 and 9. The trial court found in No. 8 that: \u201c[t]he QDRO which provides for the distribution of $402,393.00 to Plaintiff does not specify who will be assessed any taxes and/or surrender penalties.\u201d A review of QDRO 1 supports such a finding, as the order contains no mention of taxes or penalties. Plaintiff also contends there is no evidence to support Finding No. 9: \u201c[t]here will be no tax consequences as a result of the transfer, but there will be a surrender fee. of approximately $10,000.00.\u201d Here, after a careful review by this Court of both the record on appeal and the trial transcript, it appears that there is no competent evidence to support Finding No. 9. None of the evidence before the trial court addressed the issue of surrender fees, nor established the lack of tax consequences.\nHowever, this Court concludes upon de novo review that Finding No. 8 supports the trial court\u2019s correction of the order in concluding that \u201cany fees, penalties, etc[.] associated with the transfer of the $402,393.00 to Plaintiff shall be paid by Plaintiff.\u201d\n\u201c \u2018[T]he court has inherent power to amend judgments by correcting clerical errors or supplying defects so as to make the record speak the truth. The correction of such errors is not limited to the term of court, but may be done at any time upon motion, or the court may on its own motion make the correction when such defect appears.\u2019 \u201d\nSnell v. Board of Education, 29 N.C. App. 31, 32, 222 S.E.2d 756, 757 (1976) (quoting Shaver v. Shaver, 248 N.C. 113, 118, 102 S.E.2d 791, 795 (1958)). \u201cAlthough Rule 60(a) clearly grants the authority to the trial court to make clerical corrections, our appellate courts have consistently rejected attempts to change substantive provisions under the guise of making clerical changes.\u201d Buncombe County ex rel. Andres v. Newburn, 111 N.C. App. 822, 825, 433 S.E.2d 782, 784 (1993). \u201cA change in an order is considered substantive and outside the boundaries of Rule 60(a) when it alters the effect of the original order.\u201d Id.\nIn Ice v. Ice, this Court found that an award of interest on a distributive award was not a substantive change, as \u201c[t]he subject of the litigation . . . was the amount of the distributive award; interest was only incidental and tangential[.]\u201d Ice, 136 N.C. App. 787, 792, 525 S.E.2d 843, 847 (2000). The Ice Court'found the situation analogous to that in Ward v. Taylor, 68 N.C. App. 74, 314 S.E.2d 814 (1984), where a previous order was amended to allow a surveyor to recover costs associated with the surveying work done for trial, on the grounds that the \u201c \u2018[initial] failure to allow and tax costs may be considered an \u201coversight or omission\u201d in an order.\u2019 \u201d Ice, 136 N.C. App. at 792, 525 S.E.2d at 846 (quoting Ward, 68 N.C. App. at 80, 314 S.E.2d at 819-20).\nHere, fees and penalties arising from the transfer of the lump sum payment were not assigned to either party or addressed in QDRO 1. However, Such an assignment of taxes was made in both QDROs 2 and 3. The failure to include such an assignment in QDRO 1, while including it in QDROs 2 and 3, suggests that such an exclusion was an \u201coversight or omission.\u201d Additionally, as in Ice, the issue of fees or taxes related to the distribution do not affect the substance of the award itself. \u201c[T]he amount of money involved is not what creates a substantive right; rather, it is the source from which this money is derived.\u201d Ice, 136 N.C. App. at 792, 525 S.E.2d at 847. Here, any amount at stake would stem from the incidental fees or penalties, not from the underlying substantive matter of the distributive award. Accordingly, the trial court\u2019s conclusion of law was supported by the findings of fact and was a proper correction effectuated through Rule 60(a).\n2. Order of Additional Pension Payments to Defendant\nPlaintiff contends in her second assignment of error that the trial court\u2019s order of additional pension payments by plaintiff to defendant was not properly supported by evidence and findings of fact, and that the trial court lacked authority to make such an order. The trial court ordered that:\n4. Plaintiff shall pay to Defendant the difference between the $118.00 per month Defendant currently receives and 36% of her current monthly benefit, which is $1,236.00. In other words, $1,236.00 x 36% = $444.96-118.00 = $326.96. Plaintiff shall pay the sum of $326.96 per month commencing June 1, 2003.\nPlaintiff argues that the evidence recited in Finding No. 4, regarding the formula used by the plan\u2019s administrators in calculation of the amount sent to defendant was not properly before the trial court. She therefore contends it was not competent evidence to support Finding No. 4 or, by extension, Findings No. 15 and 16, which rely upon it. Finding No. 4 states:\n4. That DuPont determined Plaintiffs accrued retirement benefits as of December 31, 1997 to be $1,051.98 per month. Plaintiff subsequently left the employment of DuPont on disability as of November 30, 2001. DuPont subsequently determined that Defendant\u2019s thirty-six percent (36%) of the monthly benefit was $118.00 per month. DuPont\u2019s Benefits Department arrived at this figure by multiplying the monthly benefit of $i,051.98 by the lesser of the Plaint\u2019s [sic] conversion factor for determining actuarial equivalence (32.99042%) or the Plan\u2019s early retirement reduction factor (100%) = $1,501.98 [sic] x 32.99042% = $347.05. This amount was then multiplied by the 36% specified in the Order; #347.05 x 36% = $124.94. This amount is payable over the Defendant\u2019s lifetime. The plan\u2019s conversion factor for converting a payment from the Plaintiff/participant\u2019s lifetime to the Defendant/alternate payee\u2019s lifetime (based on the birthdates of participant and alternate payee) is 93.81626%. The resulting benefit payable to Defendant is $124.94 x 93.81626% = $117.21. This amount was rounded up to $118.00 per month.\n\u201cA trial court may take judicial notice of earlier proceedings in the same cause.\u201d In re Isenhour, 101 N.C. App. 550, 553, 400 S.E.2d 71, 73 (1991). Here, an order filed 22 October 2002 in this matter provided evidence of a telephone conversation with a DuPont administrator, in which the actuarial formula used by DuPont for calculating defendant\u2019s share of the benefit was set out. As there was credible evidence properly before the trial court to support Finding No. 4, it is therefore deemed conclusive.\nFindings No. 15 and 16, both of which are mixed findings of fact and conclusions of law, are not supported by credible evidence, however. The trial court found in No. 15 that:\n15. In regard[s] to Defendant\u2019s motion regarding the payment of thirty-six percent (36%) of Plaintiff\u2019s monthly retirement benefit to Defendant, the Court finds that DuPont\u2019s benefits administrator\u2019s calculations do not reflect 36% of the monthly benefit of $1,051.98.\nQDRO 3 awarded defendant thirty-six percent of plaintiff\u2019s accrued pension benefit as follows:\n1. Defendant/Alternate Payee is awarded thirty-six (36%) of the Participant\u2019s accrued benefit as of December 31, 1997, that being the parties\u2019 date of separation.\n2. The Defendant/altemate payee shall receive his benefit payable in the form of a monthly annuity over the alternate payee\u2019s lifetime. The alternate payee shall begin receiving his share of the accrued benefit upon the Participant\u2019s retirement date.\nThe evidence submitted showed that as of the parties\u2019 separation date, plaintiff\u2019s pension was valued at $1,051.98 per month, however plaintiff took early retirement for health reasons and was granted incapability pension benefits by her employer, DuPont, on 31 November 2001. The value of defendant\u2019s monthly annuity, as calculated by the plan administrator at that time, was $118.00 per month. Defendant moved for a contempt motion on 9 October 2002 for plaintiffs failure to pay a full thirty-six percent of the pension amount. An order on the matter was issued on 22 October 2002, finding the parties had not yet received a satisfactory explanation from the plan administrator as to the calculation of plaintiff\u2019s retirement benefits and defendant\u2019s monthly share under QDRO 3, and demanding a detailed and written explanation as to the calculation be submitted to the trial court by the plan administrator by November of 2002. The record on appeal does not reflect that any such satisfactory explanation was submitted to the trial court on this matter.\nQDRO 3 specified that defendant\u2019s share was limited to the value of the pension as of the retirement date, but that defendant was not eligible to receive the share until plaintiff\u2019s retirement. Plaintiff\u2019s retirement at a date earlier than anticipated by the parties due to disability therefore raises an unanswered question as to the correct valuation of the pension amount under the terms of QDRO 3. In light of plaintiff\u2019s early retirement, the correct value of defendant\u2019s share of plaintiff\u2019s pension as of the separation date is unclear based on the evidence of record. We therefore find that Finding No. 15 is not supported by competent evidence.\nIn Finding No. 16, the trial court stated:\n16. Further the Court finds that the 36% amount should be paid from Plaintiff\u2019s current monthly benefit which is $1,236.00 per month rather than the $1,051.98 per month as specified in the Qualified Domestic Relations Order.\nQDRO 3 expressly specified that defendant\u2019s share of plaintiff\u2019s accrued benefit was to be determined as of the date of the parties\u2019 separation, although distributed upon retirement. An increase in value which occurred after the date of separation due to plaintiff\u2019s disability would therefore not be properly considered in determining defendant\u2019s share of the pension. As competent evidence does not exist to support this finding, the trial court\u2019s conclusion that the benefit calculated was not equitable and was inconsistent with QDRO 3 is in error.\nAs we find a lack of competent evidence in the record to support Findings No. 15 and 16 and the resulting conclusions of law, we reverse this portion of the order and remand for the trial court to receive additional evidence and make further findings as to the value of defendant\u2019s thirty-six percent share of plaintiff\u2019s retirement benefits as of 31 December 1997.\nII.\nWe next address defendant\u2019s assignment of error. Defendant contends the trial court abused its discretion in denying defendant\u2019s Motion to Set Aside Judgment pursuant to Rule 60(b) of the Rules of Civil Procedure with regards to review and reconsideration of the lump sum distribution required by QDRO 1.\nQ'DRO 1 ordered:\n1. Entitlement: As part of the equitable distribution of the parties marital property, Plaintiff is entitled to an assignment of a part of the Defendant\u2019s Profit Sharing Trust and ESOP . . . more specifically as follows: that the Plaintiff, Edna B. Lee, shall receive the greater sum of either $402,393.00 or one-half (\u2019A) of whatever monies are in the Defendant\u2019s Profit Sharing Trust and ESOP ... as of January 1, 2003.\nThe sum of $402,393.00 was equal to $337,878.28, one-half of the date of separation value of the account of $675,756.56, multiplied times the annual interest rate of three and one-half percent for five years, until the date of distribution. The value of defendant\u2019s retirement account significantly decreased to $498,000.00 by 1 January 2003. Defendant argues that as the decrease was due to the poor economy and no fault .of his own, he is entitled to review and reconsideration of the order under Rule 60(b)(6). We disagree.\n\u201cAlthough section (6) of Rule 60(b) has often been termed \u2018a vast reservoir of equitable power,\u2019 a court cannot set aside a judgment pursuant to this rule without a showing (1) that extraordinary circumstances exist and (2) that justice demands relief.\u201d Thacker v. Thacker, 107 N.C. App. 479, 481, 420 S.E.2d 479, 480 (1992) (quoting Anderson Trucking Service v. Key Way Transport, 94 N.C. App. 36, 40, 379 S.E.2d 665, 667 (1989)) (citation omitted). \u201cFurther, the remedy provided by Rule 60(b)(6) is equitable in nature and is directed to the discretion of the trial judge. This Court will not disturb such a discretionary ruling without a showing of an abuse of that discretion.\u201d Id. at 482, 420 S.E.2d at 480-81 (citation omitted).\nHere, defendant alleged that the economic downturn in the stock market provided extraordinary circumstances sufficient to invoke an equitable remedy under Rule 60(b). However, as the North Carolina Supreme Court has previously noted, \u201c[s]tock market prices, as even the most casual observer knows, change constantly and the market price at the end of a thirty-day period would almost always be different from that announced thirty days before.\u201d Sheffield v. Consolidated Foods, 302 N.C. 403, 422, 276 S.E.2d 422, 435 (1981). A change in the value of the stock market over the course of five years does not amount to an extraordinary or even unforseeable circumstance. There was therefore no abuse of discretion by the trial court in its denial of defendant\u2019s Rule 60(b) motion to revise the lump sum distribution portion of the equitable distribution order.\nIn summary, as there was sufficient evidence to support the trial court\u2019s order for plaintiff to pay taxes and fees associated with distribution of defendant\u2019s retirement account, and as there was no abuse of discretion by the trial court in denying defendant\u2019s Rule 60(b) motion for review and reconsideration of the lump sum distribution, the order is affirmed in part. As there was insufficient evidence to support the conclusion that defendant was entitled to additional payments by plaintiff under the equitable distribution agreement, the order is reversed in part and remanded for further findings.\nAffirmed in part, reversed in part, and remanded in part.\nJudges WYNN and THORNBURG concur.", "type": "majority", "author": "HUNTER, Judge." } ], "attorneys": [ "Mills & Economos, L.L.P., by Larry C. Economos, for plaintiff-appellant.", "W. Gregory Duke for defendant-appellant." ], "corrections": "", "head_matter": "EDNA BARFIELD LEE, Plaintiff v. LINWOOD EARL LEE SR., Defendant\nNo. COA04-6\n(Filed 7 December 2004)\n1. Divorce\u2014 equitable distribution \u2014 retirement plan \u2014 fees and penalties for transfer \u2014 correction of omission\nThe trial court did not err by ordering a divorce plaintiff to pay all of the fees and penalties associated with a lump sum transfer of funds from defendant\u2019s retirement account. There were three qualified domestic relations orders concerning division of the parties\u2019 retirement plans, with taxes or fees assigned in the last two but not the first. This suggests that the failure to assign taxes and fees in the first was an oversight; moreover, the amount at stake stems from incidental fees or penalties, not from the underlying substantive matter. The court\u2019s conclusion was supported by the findings and was a proper correction under Rule 60(a).\n2. Divorce\u2014 equitable distribution \u2014 retirement plan \u2014 formula for share of benefit \u2014 unclear\nThere was credible evidence before the court in a divorce proceeding to support a finding about the calculation of additional pension payments from plaintiff to defendant. An order in the matter provided evidence of a telephone conversation with the company administrator in which the actuarial formula was set out.\n3. Divorce\u2014 equitable distribution \u2014 early retirement benefit \u2014 calculation\u2014evidence insufficient\nFindings in an equitable distribution order regarding a pension benefit were not supported by the evidence where plaintiff retired at an earlier date than anticipated due to a disability. The correct value of defendant\u2019s share of plaintiff\u2019s pension as of the separation date is unclear from the evidence in the record.\n4. Divorce\u2014 equitable distribution \u2014 retirement distribution \u2014 change in stock market\nThe trial court did not abuse its discretion in a divorce proceeding by denying a Rule 60(b) motion to set aside a judgment regarding a pension distribution. A change in the value of the stock market over the course of 5 years does not amount to an extraordinary or even unforeseeable circumstance.\nAppeal by plaintiff and defendant from an order entered 20 May 2003 by Judge Lonnie Carraway in Lenoir County District Court. Heard in the Court of Appeals 21 September 2004.\nMills & Economos, L.L.P., by Larry C. Economos, for plaintiff-appellant.\nW. Gregory Duke for defendant-appellant." }, "file_name": "0250-01", "first_page_order": 280, "last_page_order": 289 }