{ "id": 6787033, "name": "JUDITH TEEL HERRING, Plaintiff v. JAMES DALLAS HERRING, Defendant", "name_abbreviation": "Herring v. Herring", "decision_date": "2013-12-03", "docket_number": "No. COA13-544", "first_page": "26", "last_page": "31", "citations": [ { "type": "official", "cite": "231 N.C. App. 26" } ], "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": "690 S.E.2d 533", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "opinion_index": 0 }, { "cite": "363 N.C. 801", "category": "reporters:state", "reporter": "N.C.", "year": 2010, "opinion_index": 0 }, { "cite": "679 S.E.2d 469", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "pin_cites": [ { "page": "472", "parenthetical": "citation and quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "198 N.C. App. 224", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4169113 ], "year": 2009, "pin_cites": [ { "page": "227", "parenthetical": "citation and quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/198/0224-01" ] }, { "cite": "610 S.E.2d 301", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2005, "pin_cites": [ { "page": "303" } ], "opinion_index": 0 }, { "cite": "169 N.C. App. 433", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8470731 ], "year": 2005, "pin_cites": [ { "page": "435" } ], "opinion_index": 0, "case_paths": [ "/nc-app/169/0433-01" ] }, { "cite": "378 S.E.2d 554", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1989, "pin_cites": [ { "page": "555" }, { "page": "555", "parenthetical": "\"A validly drawn separation agreement which distributes all of the parties' property... bars an equitable distribution claim.\"" } ], "opinion_index": 0 }, { "cite": "93 N.C. App. 584", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8528313 ], "weight": 2, "year": 1989, "pin_cites": [ { "page": "586" }, { "page": "586" } ], "opinion_index": 0, "case_paths": [ "/nc-app/93/0584-01" ] }, { "cite": "440 S.E.2d 591", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1994, "pin_cites": [ { "page": "595-96" }, { "page": "595-96" } ], "opinion_index": 0 }, { "cite": "113 N.C. App. 725", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524404 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "731" }, { "page": "731" } ], "opinion_index": 0, "case_paths": [ "/nc-app/113/0725-01" ] }, { "cite": "596 S.E.2d 331", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2004, "pin_cites": [ { "page": "333" }, { "page": "332" }, { "page": "334" } ], "opinion_index": 0 }, { "cite": "164 N.C. App. 584", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8899319 ], "year": 2004, "pin_cites": [ { "page": "586" } ], "opinion_index": 0, "case_paths": [ "/nc-app/164/0584-01" ] }, { "cite": "586 S.E.2d 99", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "opinion_index": 0 }, { "cite": "357 N.C. 461", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491489, 491617, 491528, 491820, 491822, 491408, 491795, 491576, 491450 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/nc/357/0461-09", "/nc/357/0461-05", "/nc/357/0461-07", "/nc/357/0461-03", "/nc/357/0461-01", "/nc/357/0461-08", "/nc/357/0461-06", "/nc/357/0461-04", "/nc/357/0461-02" ] }, { "cite": "580 S.E.2d 743", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "748" } ], "opinion_index": 0 }, { "cite": "158 N.C. App. 244", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9186909 ], "year": 2003, "pin_cites": [ { "page": "249" } ], "opinion_index": 0, "case_paths": [ "/nc-app/158/0244-01" ] }, { "cite": "32 N.C. App. 55", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548532 ], "year": 1977, "pin_cites": [ { "page": "60", "parenthetical": "\"A bare mistake of law generally affords no grounds for reformation.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/32/0055-01" ] }, { "cite": "398 S.E.2d 334", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "336", "parenthetical": "\"A unilateral mistake, unaccompanied by fraud, imposition, or like circumstances, is not sufficient to avoid a contract.\"" } ], "opinion_index": 0 }, { "cite": "100 N.C. App. 750", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527612 ], "year": 1990, "pin_cites": [ { "page": "752", "parenthetical": "\"A unilateral mistake, unaccompanied by fraud, imposition, or like circumstances, is not sufficient to avoid a contract.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/100/0750-01" ] }, { "cite": "153 S.E.2d 800", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "pin_cites": [ { "page": "804" } ], "opinion_index": 0 }, { "cite": "270 N.C. 69", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565294 ], "year": 1967, "pin_cites": [ { "page": "73" } ], "opinion_index": 0, "case_paths": [ "/nc/270/0069-01" ] }, { "cite": "530 S.E.2d 82", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2000, "pin_cites": [ { "page": "86", "parenthetical": "citation and quotation marks omitted" }, { "page": "86", "parenthetical": "\"Although [the defendant] argues that the separation agreement contains 'mutual mistakes,' [the plaintiff] offers no such argument, thereby negating the contention that the alleged mistakes were 'mutual.' \"" } ], "opinion_index": 0 }, { "cite": "138 N.C. App. 459", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11080318 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "465", "parenthetical": "citation and quotation marks omitted" }, { "page": "465-66" } ], "opinion_index": 0, "case_paths": [ "/nc-app/138/0459-01" ] }, { "cite": "715 S.E.2d 853", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2011, "pin_cites": [ { "page": "857", "parenthetical": "\"Separation and property settlement agreements are contracts and as such are subject to rescission on the grounds of (1) lack of mental capacity, (2) mistake, (3) fraud, (4) duress, or (5) undue influence.\"" } ], "opinion_index": 0 }, { "cite": "580 S.E.2d 15", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "19" } ], "opinion_index": 0 }, { "cite": "157 N.C. App. 664", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9188407 ], "year": 2003, "pin_cites": [ { "page": "669" } ], "opinion_index": 0, "case_paths": [ "/nc-app/157/0664-01" ] } ], "analysis": { "cardinality": 671, "char_count": 13575, "ocr_confidence": 0.726, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.18244499968917108 }, "sha256": "b910da3467dca21390fd8958de227b1eb8972a6d7a021f5e1243d3d1813110ff", "simhash": "1:279564eac41f3ccc", "word_count": 2117 }, "last_updated": "2023-07-14T19:32:40.304740+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges ELMORE and McCULLOUGH concur." ], "parties": [ "JUDITH TEEL HERRING, Plaintiff v. JAMES DALLAS HERRING, Defendant" ], "opinions": [ { "text": "DAVIS, Judge.\nJames Dallas Herring (\u201cDefendant\u201d) appeals from the trial court\u2019s order denying his motion to set aside a separation agreement entered into by him and his former wife. The issue before us is whether the separation agreement should be rescinded based on the ground of mutual mistake. After careful review, we affirm the trial court\u2019s order.\nFactual Background\nJudith Teel Herring (\u201cPlaintiff\u2019) and Defendant were married on 27 April 1985 and separated on 21 June 1998. On 11 May 2007, the parties executed a separation agreement (\u201cSeparation Agreement\u201d) to \u201cconfirm their separation and make arrangements in connection therewith; including settlement of their property rights, and other rights and obligations growing out of the marriage relationship.\u201d The Separation Agreement distributed the parties\u2019 real and personal property, including the parties\u2019 marital home, vehicles, bank accounts, and retirement accounts.\nSpecifically, the Separation Agreement stated that Plaintiff would \u201cretain all bank checking, savings, mutual fund, money market, stocks, 401K, 456B retirement and governmental employees retirement accounts which are presently titled in her name only as her separate property.\u201d The Separation Agreement also provided that Defendant would likewise \u201cretain all bank checking, savings, mutual fund, money market, stocks and 401K retirement accounts which are presently titled in his name only as his separate property.\u201d The Separation Agreement contained a provision specifying that \u201c[t]his agreement contains the entire undertaking of the parties, and there are no representations, warranties, covenants or undertakings other than those expressed and set forth herein.\u201d Finally, the Agreement provided that Defendant would pay Plaintiff a distributional award of $31,500 and that Plaintiff would execute a quitclaim deed conveying her interest in the marital home to Defendant.\nOn 21 February 2012, Plaintiff filed a complaint for absolute divorce and alleged that the parties had \u201cagreed upon and completed a division of all property subject to equitable distribution considerations as defined by the North Carolina General Statutes, and there remains no division of property to be further considered by the Court.\u201d On 5 April 2012, Defendant filed an answer and counterclaim seeking equitable distribution and to set aside the Separation Agreement on grounds of mistake, misrepresentation, or fraud. Specifically, Defendant contended that \u201c[t]he parties were mistaken as to the actual marital value of Plaintiff\u2019s Governmental Employees Retirement. The actual value was far greater than the $27,499 value divided by the parties.\u201d\nThe matter was heard on 10 October and 20 November 2012, and on 29 November 2012, the trial court entered an order denying Defendant\u2019s motion to set aside the Separation Agreement and likewise denying his claim for equitable distribution. Defendant appealed to this Court.\nAnalysis\nOn appeal, Defendant argues that the trial court erred by failing to rescind or reform the parties\u2019 Separation Agreement based on a mutual mistake of fact. We disagree.\n\u201cA marital separation agreement is subject to the same rules pertaining to enforcement as any other contract.\u201d Gilmore v. Garner, 157 N.C. App. 664, 669, 580 S.E.2d 15, 19 (2003). Thus, like any other contract, a separation agreement may be set aside or reformed based on grounds such as fraud, mutual mistake of fact, or unilateral mistake of fact procured by fraud. See Searcy v. Searcy, _ N.C. App. _, _, 715 S.E.2d 853, 857 (2011) (\u201cSeparation and property settlement agreements are contracts and as such are subject to rescission on the grounds of (1) lack of mental capacity, (2) mistake, (3) fraud, (4) duress, or (5) undue influence.\u201d) (citation, quotation marks, and alteration omitted).\n\u201cA mutual mistake of fact is a mistake common to both parties and by reason of it each has done what neither intended.\u201d Lancaster v. Lancaster, 138 N.C. App. 459, 465, 530 S.E.2d 82, 86 (2000) (citation and quotation marks omitted). To support the rescission or reformation of an otherwise valid and binding contract, the mutual mistake\nmust be of an existing or past fact which is material; it must be as to a fact which enters into and forms the basis of the contract, or in other words it must be of the essence of the agreement,... the efficient cause of the agreement, and must be such that it animates and controls the conduct of the parties.\nMacKay v. McIntosh, 270 N.C. 69, 73, 153 S.E.2d 800, 804 (1967). Thus, neither unilateral mistakes of fact nor mutual mistakes of law are, standing alone, sufficient to set aside or reform a contract. See Stevenson v. Stevenson, 100 N.C. App. 750, 752, 398 S.E.2d 334, 336 (1990) (\u201cA unilateral mistake, unaccompanied by fraud, imposition, or like circumstances, is not sufficient to avoid a contract.\u201d); Durham v. Creech, 32 N.C. App. 55, 60, 231 S.Ed.2d 163, 167 (1977) (\u201cA bare mistake of law generally affords no grounds for reformation.\u201d).\nThe party seeking to reform or rescind the contract bears the burden of proving the existence of a mutual mistake by clear, cogent, and convincing evidence. Smith v. First Choice Servs., 158 N.C. App. 244, 249, 580 S.E.2d 743, 748, disc. review denied, 357 N.C. 461, 586 S.E.2d 99 (2003). Here, Defendant contends that the parties shared a mutual misunderstanding as to the proper value of Plaintiffs Teachers\u2019 and State Employees\u2019 Retirement System (\u201cTSERS\u201d) retirement benefits. Specifically, Defendant argues that the parties\u2019 mutual mistake was basing their calculation of the TSERS pension solely upon Plaintiff\u2019s contributions to the account rather than upon the expected future value of the pension if Plaintiff continued working for the State. We conclude that Defendant failed to adequately establish that the TSERS pension value used by the parties in calculating the distributional award to Plaintiff set forth in the Separation Agreement constituted a mistake of fact common to both parties sufficient to compel the setting aside of the Agreement.\nDefendant argues that Plaintiffs testimony at the hearing on his motion to set aside the Separation Agreement was \u201can acknowledgement of the mutual mistake\u201d because she testified that \u201c[a]s fax as I knew, 27,000 was what was in there at that point \u2018cause that\u2019s all I would have gotten. That\u2019s how we looked at it at the time we did this.\u201d However, this statement does not establish that Plaintiff misunderstood the nature of her pension or was unaware of the potential future benefits she would receive if she continued her service with the State for the prescribed period of time. Indeed, Plaintiff\u2019s earlier testimony that if she \u201chad retired on that date, that would have been the amount of money that [she] would have gotten\u201d indicates that her intent had been to value the pension as if she had terminated her service and withdrawn the pension funds on the date of separation.\nWe are not persuaded that these statements demonstrate by clear, cogent, and convincing evidence that Plaintiff was wholly ignorant of the fact that, as a defined benefit plan, her TSERS pension would eventually be worth more than just her contributions and the accumulated interest. Defendant\u2019s unilateral assertions that (1) the parties intended to use the actual value of the TSERS account in calculating a distributional award; and (2) they were unaware that the pension was worth more than Plaintiff\u2019s contributions are insufficient to establish the existence of a mutual mistake of material fact. See Lancaster, 138 N.C. App. at 465-66, 530 S.E.2d at 86 (\u201cAlthough [the defendant] argues that the separation agreement contains \u2018mutual mistakes,\u2019 [the plaintiff] offers no such argument, thereby negating the contention that the alleged mistakes were \u2018mutual.\u2019 \u201d).\nMoreover, we believe that the mistake alleged by Defendant would more accurately be characterized as a mistake of law, which does not afford a basis for rescinding or reforming a separation agreement. Defendant is essentially asserting that the parties misunderstood the value of the TSERS pension because they did not treat the pension as a defined benefit plan and calculate its worth accordingly. Thus, if the parties were mutually mistaken about anything, the mistake would have concerned how the TSERS pension would have been valued and distributed under North Carolina\u2019s equitable distribution law.\nIn Dalton v. Dalton, 164 N.C. App. 584, 586, 596 S.E.2d 331, 333 (2004), the defendant argued that the trial court should have set aside the parties\u2019 separation agreement on several grounds, including the parties\u2019 mutual mistake as to how retirement accounts were distributed under North Carolina\u2019s equitable distribution system. The defendant asserted that the parties\u2019 belief that \u201cthe law in North-Carolina required each of them to retain their respective retirement savings account as their separate property\u201d was a mutual mistake requiring rescission. Id. at 586, 596 S.E.2d at 332. Our Court concluded that the alleged mistake did not support rescission of the contract, stating that\nin the instant case, the separation agreement succeeded in accomplishing the intention of the parties. Specifically, the parties intended to distribute their retirement benefits pursuant to an erroneous understanding of North Carolina law. That the parties\u2019 distribution scheme, in actuality, differed from that established by North Carolina law constitutes merely a \u201cbare mistake of law.\u201d\nId. at 588, 596 S.E.2d at 334. Likewise, we believe that the mutual mistake here, if any, is a \u201cbare mistake of law\u201d regarding the valuation of defined ben\u00e9fit plans for purposes of equitable distribution. As such, it fails as a basis for rescission.\nFinally, in a related argument, Defendant asserts that the trial court\u2019s refusal to value the TSERS account using the defined benefit plan valuation method outlined in Bishop v. Bishop, 113 N.C. App. 725, 731, 440 S.E.2d 591, 595-96 (1994), led to its erroneous conclusion that there was no mutual mistake of fact. This argument is without merit.\nWhile Defendant is correct that a trial court is required to utilize the Bishop method when distributing a defined benefit plan in an equitable distribution action, it is well established that parties \u201cmay agree in a separation agreement to distribute their property in any fashion they desire without resorting to litigation for equitable distribution.\u201d Lee v. Lee, 93 N.C. App. 584, 586, 378 S.E.2d 554, 555 (1989). Indeed, \u201c[b]y executing a written separation agreement, married parties forego their statutory rights to equitable distribution and decide between themselves how to divide their marital estate following divorce.\u201d Brenenstuhl v. Brenenstuhl, 169 N.C. App. 433, 435, 610 S.E.2d 301, 303 (2005).\nHere, the Separation Agreement addresses and distributes the TSERS account in the provision stating \u201c[t]he Wife shall hereinafter retain . . . governmental employees retirement accounts which are presently titled in her name only as her separate property.\u201d As Defendant has failed to meet his burden of proving a mutual mistake requiring reformation or rescission of the Separation Agreement, the trial court was neither obligated nor permitted to disregard the parties\u2019 contractual agreement and instead conduct its own valuation and distribution of the TSERS pension using the Bishop method. See Lee, 93 N.C. App. at 586, 378 S.E.2d at 555 (\u201cA validly drawn separation agreement which distributes all of the parties\u2019 property... bars an equitable distribution claim.\u201d).\nConclusion\nFor the reasons stated above, we affirm the trial court\u2019s order denying Defendant\u2019s motion to (1) set aside the Separation Agreement; and (2) equitably distribute Plaintiff\u2019s TSERS pension.\nAFFIRMED.\nJudges ELMORE and McCULLOUGH concur.\n. Defendant makes no argument in his brief regarding the trial court\u2019s rejection of his fraud and misrepresentation theories. These issues are thereby deemed abandoned. See N.C. R. App. P. 28(b)(6) (\u201cIssues not presented in a parly\u2019s brief, or in support of which no reason or argument is stated, will be taken as abandoned.\u201d).\n. \u201cIn a defined benefit plan the employee\u2019s pension is determined without reference to contributions [by the employee] and is based on factors such as years of service and compensation received.\u201d Cochran v. Cochran, 198 N.C. App. 224, 227, 679 S.E.2d 469, 472 (2009) (citation and quotation marks omitted), disc. review denied, 363 N.C. 801, 690 S.E.2d 533 (2010). In equitable distribution actions, defined benefit plans are valued by our courts using the five-step method outlined in Bishop v. Bishop, 113 N.C. App. 725, 731, 440 S.E.2d 591, 595-96 (1994).", "type": "majority", "author": "DAVIS, Judge." } ], "attorneys": [ "Ferguson, Scarbrough, Hayes, Hawkins & DeMay, P.A., by James R. DeMay, for plaintiff-appellee.", "Christy E. Wilhelm for defendant-appellant." ], "corrections": "", "head_matter": "JUDITH TEEL HERRING, Plaintiff v. JAMES DALLAS HERRING, Defendant\nNo. COA13-544\nFiled 3 December 2013\nDivorce \u2014 separation agreement \u2014 motion to set aside \u2014 mutual mistake \u2014 mistake of law\nThe trial court did not err by denying defendant ex-husband\u2019s motions to set aside a separation agreement entered into by the parties and equitably distribute plaintiff\u2019s TSERS pension based on alleged mutual mistake. The mutual mistake, if any, was a \u201cbare mistake of law\u201d regarding the valuation of defined benefit plans for purposes of equitable distribution.\nAppeal by defendant from order entered on 29 November 2012 by Judge Donna H. Johnson in Cabarrus County District Court. Heard in the Court of Appeals 23 October 2013.\nFerguson, Scarbrough, Hayes, Hawkins & DeMay, P.A., by James R. DeMay, for plaintiff-appellee.\nChristy E. Wilhelm for defendant-appellant." }, "file_name": "0026-01", "first_page_order": 36, "last_page_order": 41 }