{
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  "name": "BONNIE GARRIS v. DAVID GARRIS",
  "name_abbreviation": "Garris v. Garris",
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    "judges": [
      "Judges Orr and Smith concur."
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    "parties": [
      "BONNIE GARRIS v. DAVID GARRIS"
    ],
    "opinions": [
      {
        "text": "GREENE, Judge.\nThe sole issues presented by this appeal are: (A) where defendant asserts a separation/property settlement agreement barred plaintiffs action for alimony and equitable distribution, whether the court\u2019s ruling on that plea in bar is appealable; and (B) whether the trial judge erred in determining as a matter of law that the separation/property settlement agreement was unconscionable before defendant had the opportunity to offer all of his evidence concerning the validity of the agreement.\nA\nIn response to plaintiffs complaint for divorce, equitable distribution and alimony, defendant alleged a valid separation /property settlement agreement (the \u201cAgreement\u201d) waived all of plaintiffs marital rights to equitable distribution and alimony and requested the Agreement be incorporated in the court\u2019s final judgment. As valid contractual waivers of these rights are enforceable in this State, defendant\u2019s allegation of the Agreement is properly characterized as a plea in bar to plaintiffs complaint. See N.C.G.S. Sec. 52-10.1 (1984); N.C.G.S. Sec. 5240(a) (1984) (may assert valid marital contract as plea in bar); Hagler v. Hagler, 319 N.C. 287, 290, 354 S.E. 2d 228, 232 (1987) (may contractually waive equitable distribution rights); Crutchley v. Crutchley, 306 N.C. 518, 524, 293 S.E. 2d 793, 797 (1982) (may contractually release alimony rights); see also N.C.G.S. Sec. 5046.6(b) (1987) (alimony may be barred by valid separation agreement so long as agreement performed).\nDefendant demanded a jury trial. However, upon defendant\u2019s testimony that he failed to disclose certain highly valuable real estate acquired during the marriage but before the parties entered the Agreement, the court dismissed the jury, refused to hear further evidence and directed a verdict on its own initiative that the Agreement was unconscionable and void. The court made the following findings:\n[T]hat defendant testified that he had his attorney draw the . . . Agreement; that the Agreement was drawn; that he picked it up at the attorney\u2019s office; took it home to the plaintiff;\nHe further testified that the plaintiff read the . . . Agreement and that the two of them discussed it;\nThat there is no evidence in the trial that the plaintiff consulted with an attorney about the . . . Agreement or the contents thereof;\nThat the defendant further testified that he did not know about the legal things in the written agreement, and that he did not tell the plaintiff that part of the Market Street property was marital property; that he did not tell the plaintiff that the corporation set up during the marriage and which owned, at the time of the entry of the . . . Agreement, approximately twenty automobiles were marital property; that the written . . . Agreement stating that the parties at the time of the execution of the instrument fully and completely disclosed to the other the existence and nature of all marital property was inaccurate;\nThe court finds as a fact and as a conclusion of law that the payment to the wife the sum of $2,500 and the transferring sole ownership in the wife of a 1978 Grand Prix automobile is unconscionable as a matter of law, especially in the light of the defendant\u2019s testimony that the Market Street property, part of which is clearly marital property under our law, is worth approximately a million dollars, and the corporation selling automobiles on Market Street at the time the agreement was entered into, as well as the mobile home and numerous items of jewelry and farms and other household furnishings which are also marital property.\nThe court\u2019s ruling on the Agreement did not dispose of plaintiffs claims for equitable distribution and alimony but only disposed of defendant\u2019s plea in bar to those claims: the court\u2019s ruling was thus interlocutory. Veazey v. City of Durham, 231 N.C. 357, 361-62, 57 S.E. 2d 377, 381 (1950). Although the court\u2019s order stated that its ruling \u201caffects a substantial right and is a proper subject of immediate appeal,\u201d the court\u2019s order could not be certified as a final appealable order under Rule 54(b). N.C.G.S. Sec. 1A-1, Rule 54(b) (1983). It is true that the court\u2019s statement was an adequate certification that there was \u201cno just reason for delay\u201d under Rule 54(b). See Smock v. Brantley, 76 N.C. App. 73, 74-75, 331 S.E. 2d 714, 716, disc. rev. denied, 315 N.C. 590, 341 S.E. 2d 30 (1985) (identical statement was \u201ctantamount\u201d to certification). However, there must be a final adjudication of at least one claim in order to permit appeal under Rule 54(b) since that rule requires as a condition precedent that the court \u201center a final judgment as to one or more but fewer than all the claims or parties . . . .\u201d Sec. 1A-1, Rule 54(b) (emphasis added); Tridyn Ind. Inc. v. American Mut. Ins. Co., 296 N.C. 486, 491, 251 S.E. 2d 443, 447 (1979); see generally 6 Moore\u2019s Fed. Pract. par. 54.33[1] (2d ed. 1988). Since the court\u2019s ruling only disposed of defendant\u2019s plea in bar, the ruling did not finally adjudicate any of plaintiffs claims. The ruling was thus not certifiable as a final appealable order under Rule 54(b).\nNor does the court\u2019s ruling affect a substantial right such that it is appealable under Sections 1-277(a) and 7A-27(d). N.C.G.S. Sec. 1-277(a) (1983); N.C.G.S. Sec. 7A-27(d) (1986). The court\u2019s adverse ruling on defendant\u2019s plea in bar would be analogous to the court\u2019s refusal to dismiss plaintiffs claims for equitable distribution and alimony despite defendant\u2019s assertion of some affirmative defense. Such a denial would not affect a substantial right entitling defendant to appeal the interlocutory ruling. E.g. Johnson v. Pilot Life Ins. Co., 215 N.C. 120, 1 S.E. 2d 381 (1939) (denial of motion to dismiss based on release and statute of limitations does not affect substantial right). No substantial right of defendant will be lost or prejudiced by delaying his appeal until the final judgment on plaintiffs equitable distribution and alimony claims. Thus, our statutes do not permit as a matter of right the appeal of the trial court\u2019s interlocutory ruling on defendant\u2019s assertion of the Agreement as a plea in bar.\nHowever, the trial court in this case entered its verdict on its own initiative before defendant had concluded his evidence on the validity of the Agreement. Given that peculiar circumstance, delaying our review of the court\u2019s directed verdict would paradoxically not result in a fuller factual and legal record on any subsequent appeal. Cf. Lamb v. Wedgwood South Corp., 308 N.C. 419, 424, 302 S.E. 2d 868, 871 (1983) (disallowing interlocutory appeal where delay of appeal would allow fuller factual and legal record). Therefore, we will exercise our power to grant certiorari to address this appeal for the limited purpose of determining whether the trial court erred in entering a directed verdict before defendant concluded his evidence on the validity of the Agreement. N.C.G.S. Sec. 7A-32(c) (1986); N.C.R. App. 21(a)(1).\nB\nThere is no inherent procedural bar to the trial court\u2019s entering a directed verdict on its own motion during a trial. L. Harvey and Son Co. v. Jarman, 76 N.C. App. 191, 198-99, 333 S.E. 2d 47, 52 (1985); see also Peterson v. Peterson, 400 F. 2d 336, 343 (8th Cir. 1968) (if court determines no issue of fact for jury, no need for \u201cuseless formality\u201d of motion under Rule 50(a)); Aetna Cas. & Sur. Co. v. L. K. Comstock & Co., 488 F. Supp. 732, 734 (D. Nev. 1980), rev\u2019d on other grounds, 684 F. 2d 1267, 1268 n.2 (9th Cir. 1982) (court has power to enter verdict on own motion pursuant to Rule 41, Rule 50(a) and inherent discretionary powers). However, we do not encourage frequent use of this power. Jarman, 76 N.C. App. at 199, 333 S.E. 2d at 52. In deciding to enter a directed verdict, the trial court should consider all the evidence in the light most favorable to the non-movant and direct the verdict only if the evidence so considered is insufficient as a matter of law to justify a verdict. See Kelly v. Int. Harvester Co., 278 N.C. 153, 158, 179 S.E. 2d 396, 398 (1971). Thus, while the trial court\u2019s directing this verdict may have been procedurally permissible, the question remains whether it was proper in light of the evidence at the time it was entered.\nThe reason for the court\u2019s verdict is evident from the transcript and the court\u2019s order: the court decided as a matter of law that defendant\u2019s admitted failure to disclose a valuable tract of land that was arguably marital property was so manifestly unfair or \u201cunconscionable\u201d as to void the subsequent Agreement-irrespective of whatever defendant\u2019s subsequent evidence might show. However, particularly in determining whether the Agreement was \u201cunconscionable,\u201d the court must consider all the facts and circumstances surrounding the Agreement. See Brenner v. Little Red School House, Limited, 302 N.C. 207, 213, 274 S.E. 2d 206, 210 (1981). While the court found plaintiff had not consulted with an attorney, we note the court made no findings concerning the conflicting evidence whether the parties executed the Agreement before or after their separation. Compare Eubanks v. Eubanks, 273 N.C. 189, 196, 159 S.E. 2d 562, 567 (1968) (agreements between spouses must be entered into with full knowledge of circumstances and rights) and Harton v. Harton, 81 N.C. App. 295, 297, 344 S.E. 2d 117, 119, cert. denied, 317 S.E. 2d 703, 347 S.E. 2d 41 (1986) (spouses are fiduciaries until they separate) with Averitt v. Averitt, 88 N.C. App. 506, 508-09, 363 S.E. 2d 875, 877-78, aff\u2019d per curiam, 322 N.C. 468, 368 S.E. 2d 377 (1988) (failure to disclose legal effect did not void agreement where parties had separated, defendant retained counsel and plaintiff accepted benefits after disclosure).\nWe therefore hold that on remand the trial court must permit defendant to conclude his evidence on the facts and circumstances surrounding the Agreement before it decides either to submit any issues to the jury or again rules the Agreement was unconscionable as a matter of law. In either case, the trial court and the parties will be given an opportunity to develop more fully the facts in dispute and shed light on the merits of defendant\u2019s assertion of the Agreement as a plea in bar. Any errors defendant again desires to assert may be preserved by exception and raised on appeal after the court finally determines at least one of plaintiffs claims.\nReversed and remanded.\nJudges Orr and Smith concur.",
        "type": "majority",
        "author": "GREENE, Judge."
      }
    ],
    "attorneys": [
      "Burney, Burney, Barefoot & Bain, by Roy C. Bain, for p laintiff-appe llee.",
      "James W. Lea III for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "BONNIE GARRIS v. DAVID GARRIS\nNo. 885DC299\n(Filed 30 December 1988)\n1. Appeal and Error \u00a7 6.2\u2014 ruling on plea in bar not appealable\nWhere defendant asserted that a separation/property settlement agreement barred plaintiffs action for alimony and equitable distribution, the trial court\u2019s ruling on that plea in bar was not appealable, since the court\u2019s ruling only disposed of defendant\u2019s plea in bar but did not finally adjudicate any of plaintiffs claims, nor did the court\u2019s ruling affect a substantial right such that it was appealable under N.C.G.S. \u00a7\u00a7 l-277(a) and 7A-27(d).\n2. Husband and Wife \u00a7 10.1\u2014 separation agreement \u2014 court\u2019s determination that agreement was unconscionable improper\nThe trial court erred in determining as a matter of law that the parties\u2019 separation/property settlement agreement was unconscionable before defendant had the opportunity to offer all of his evidence concerning the validity of the agreement.\nAppeal by defendant from Tucker (Elton GJ, Judge. Judgment entered 26 October 1987 in District Court, New HANOVER County. Heard in the Court of Appeals 28 September 1988.\nBurney, Burney, Barefoot & Bain, by Roy C. Bain, for p laintiff-appe llee.\nJames W. Lea III for defendant-appellant."
  },
  "file_name": "0467-01",
  "first_page_order": 497,
  "last_page_order": 502
}