An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                                NO. COA14-488
                       NORTH CAROLINA COURT OF APPEALS

                              Filed: 6 January 2015


DODI C. REARDON
     Plaintiff-Appellant,

      v.                                      Gaston County
                                              No. 01-CvD-2484
MARK C. BROWN
     Defendant-Appellee.


      Appeal by Plaintiff from order entered 15 January 2014 by

Judge Ralph C. Gingles in District Court, Gaston County.                      Heard

in the Court of Appeals 6 October 2014.


      Thomas B. Kakassy for Plaintiff-Appellant.

      Carpenter & Carpenter, PLLC, by James R. Carpenter, for
      Defendant-Appellee.


      McGEE, Chief Judge.


      Dodi   C.   Reardon     (“Plaintiff”)      appeals    the    trial   court’s

order dismissing, under the doctrine of laches, her equitable

distribution      action     filed    thirteen      years    ago    against     her

husband, Mark C. Brown (“Defendant”).             We affirm.

                               I.    Background
                                         -2-

     Plaintiff and Defendant were married on 24 July 1993.                        They

separated on 18 October 1997, and a separation agreement was

prepared    (“the    separation       agreement”).        Plaintiff      signed    the

separation agreement on 14 November 1997, but Defendant did not

sign it.         Moreover, the final divorce judgment dissolving the

parties’ marriage, entered 4 June 1999,                   stated in part that

“there     are     matters     of    equitable       distribution     between     the

plaintiff and the defendant that shall be placed on the ‘off

docket.’”        However, Defendant contends that the parties adhered

to the terms of the separation agreement                     when their marital

assets were distributed, and Plaintiff does not dispute this in

her brief.        Nonetheless, thirteen years later, Plaintiff moved

ex parte to reactivate the equitable distribution action between

her and Defendant.            The trial court reactivated the equitable

distribution action by an amended order, entered 19 November

2012 (“the reactivation order”).

     In response, Defendant moved the trial court to rescind the

reactivation       order     and    dismiss    Plaintiff’s      action   based,    in

part, on the affirmative defense of laches.                      The trial court

held a hearing on Defendant’s motion on 17 December 2013 (“the

hearing”).        By order entered 15 January 2014, the trial court

dismissed Plaintiff’s equitable distribution claim “for failure

to   prosecute       [her      action]    in     a     timely     fashion,      which
                                      -3-

constitute[d]      prejudice    to   the    [D]efendant”     (“the   dismissal

order”).      Plaintiff appeals.

                         II.   Standard of Review

       It is well settled in our caselaw 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 court's findings of fact and whether
              its conclusions of law were proper in light
              of such facts.       Where . . . the trial
              court's findings are not contested, the
              findings are presumed to be supported by
              competent evidence and [are] binding on
              appeal.   The trial court's conclusions of
              law are reviewable de novo.

Irby v. Freese, 206 N.C. App. 503, 508, 696 S.E.2d 889, 892

(2010) (citations and internal quotation marks omitted).

           III.    Plaintiff’s Challenges to the Findings

      Plaintiff first challenges the sufficiency of a number of

the   trial    court’s    findings   of    fact   in   the   dismissal   order,

specifically:

              2. That on or about November 14, 1997, the
                 plaintiff    had    prepared   a   separation
                 agreement reflecting the agreement of the
                 parties, which she executed before a
                 notary   public,     but  which   was   never
                 executed by the defendant.       Nonetheless,
                 the    terms    and    conditions    of   the
                 separation agreement were adhered to by
                 the parties.     That, among other things,
                 the defendant purchased the plaintiff’s
                 interest in the marital residence, . . .
                 and the defendant paid off all of the
                                      -4-

              marital credit card debt.

           3. The plaintiff received an automobile, the
              defendant received an automobile and each
              party waived any claim that they may have
              had to the retirement or 401K accounts of
              the other.   That although the separation
              agreement was not completely executed,
              the [c]ourt finds that the parties acted
              in reliance upon the terms and conditions
              thereof.

              . . . .

           8. That the plaintiff testified that she had
              given    no    thought    to    equitable
              distribution until she stumbled on the
              divorce document and questioned what it
              meant by the fact that the divorce decree
              provided "That there are matters of
              equitable distribution that should remain
              open and placed on the 'off-docket.'"
              That thereafter, she made inquiry of
              counsel as to what that meant, thus, the
              beginning of this action.

    Plaintiff’s challenges to the above findings are largely

conclusory. In her brief before this Court, the entirety of

Plaintiff’s   argument    challenging       findings   of    fact   three     and

eight is that they have “no basis in the record.”                     Plaintiff

does not explain her position further, nor does she direct this

Court to anywhere in the record where we might evaluate the

factual   sufficiency    of   these    findings.       See   N.C.R.    App.    P.

7(a)(1) (“If the appellant intends to urge on appeal that a

finding or conclusion of the trial court is unsupported by the

evidence or is contrary to the evidence, the appellant shall
                                            -5-

cite in the record on appeal the volume number, page number, and

line    number      of     all    evidence     relevant     to    such   finding      or

conclusion.” (emphasis added)).

       Moreover, in our review of the trial court’s findings, we

can look no further than the record presented on appeal.                              See

N.C.R. App. P. 9(a) (“In appeals from the trial division of the

General Court of Justice, review is solely upon the record on

appeal,     the   verbatim         transcript      of    proceedings,    if    one     is

designated, and any other items filed pursuant to this Rule

9.”).       “This        Court    has     repeatedly     noted    that   it    is     the

appellant's duty to ensure that the record is complete.                        Without

evidence in the record of error by a trial judge, the appellate

court is not required to and should not assume error on the part

of the trial judge.”                Faulkenberry v. Faulkenberry, 169 N.C.

App.    428,   430,       610     S.E.2d    237,   239    (2005)    (citations        and

quotation marks omitted).

       In   the     present        case,    Plaintiff      failed   to      include    a

transcript of the hearing in the record on appeal.                          Therefore,

this Court is otherwise unable to review Plaintiff’s challenge

to finding of fact               three,    which discusses       evidence     that was

presented during the hearing regarding ways in which the parties

relied upon the separation agreement.                   Nor can we review finding

of fact eight, finding that Plaintiff testified she “had given
                                            -6-

no thought to equitable distribution until she stumbled on the

divorce document”           a number of years          after the parties             ended

their marriage.             As such, these challenges               by Plaintiff are

waived.1   See id.

     Regarding        the    trial   court’s       finding    of    fact    two,     which

discusses the separation agreement specifically, Plaintiff does

not contest that she and Defendant “adhered to” the terms of the

separation      agreement      or    that    Defendant       purchased      Plaintiff’s

interest   in    the    marital      residence      and   paid      off     all    of   the

marital credit card debt as part of this exchange.                           Therefore,

that portion of finding of fact two is binding on appeal.                               See

Irby,    206   N.C.    App.     at   508,    696    S.E.2d     at    892.         Instead,

Plaintiff challenges only the trial court’s decision to review

the separation agreement during the hearing.                        This argument is

waived as unpreserved because Plaintiff has not provided this

Court with any evidence that she objected to the introduction of

the separation agreement during the hearing.                    See N.C.R. App. P.

10(a)(1) (“In order to preserve an issue for appellate review, a

party must have presented to the trial court a timely request,

objection,      or    motion,    stating      the    specific       grounds       for   the

     1
       Plaintiff also raises conclusory challenges to the trial
court’s findings of fact six and seven, which discuss evidence
related to the possible contents of Defendant’s retirement
account; however, in light of our analysis above, we need not
address these challenges.
                                            -7-

ruling      the    party   desired    the    court      to   make    if    the    specific

grounds were not apparent from the context.”).

      IV.     Plaintiff’s Challenges to the Conclusions of Law

      Plaintiff also challenges the trial court’s conclusion that

Defendant was prejudiced by Plaintiff’s failure to prosecute the

equitable         distribution    action     in   a    timely    manner.          However,

because we have not been presented with meritorious challenges

to the trial court’s findings, all that remains for this Court

to determine is whether the trial court’s findings support its

conclusions of law.          See Irby, 206 N.C. App. at 508, 696 S.E.2d

at    892.          Plaintiff’s      failure      to     litigate         the    equitable

distribution action in a timely manner must have “resulted in

some change in the condition of the property or in the relations

of the parties” that unreasonably prejudiced Defendant, in order

to dismiss Plaintiff’s action under the doctrine of laches.2                            See

id.    (citation       omitted).           The    “mere      passage       of    time    is

insufficient”         to   support     a     conclusion       that        Defendant     was

prejudiced by Plaintiff’s inaction.                    See id.      In its order, the

trial court concluded:

              1. That[,] although the parties did not have
                 a    completely    executed    separation

      2
       Plaintiff also would have to “[know] of the existence of
the grounds for [her] claim” during the delay.           See id.
(citation omitted).    This appears to be uncontested in the
present case, as Plaintiff was a party to her own divorce.
                                         -8-

                  agreement,   the    parties  acted   in
                  detrimental reliance upon the terms and
                  conditions of the separation agreement
                  [and] each received what was bargained
                  for.

               2. That the failure of the plaintiff to
                  pursue any claim for a period of at least
                  15 years following the separation and at
                  least 13 years following the divorce
                  further confirms the [c]ourt's finding
                  that the parties acted in detrimental
                  reliance upon the terms and conditions of
                  the separation agreement.

               3. That the length of time involved, in and
                  of itself, constitutes severe prejudice
                  to the defendant and the fact that he was
                  unable to determine what might have been
                  in   his   retirement   account,    further
                  constitutes prejudice to the defendant.
                  The   [c]ourt  further   finds   that   the
                  inordinate delay in attempting to pursue
                  a claim of equitable distribution is, in
                  and of itself, prejudicial and should be
                  barred by the equity defense of laches.

       Plaintiff challenges the trial court’s conclusions two and

three, basing these challenges entirely on her contention that

“the    mere     passage    of   time    does    not   constitute   detrimental

reliance . . . [or] prejudice.”                  However, Plaintiff does not

challenge the trial court’s first conclusion that “the parties

acted in detrimental reliance upon the terms and conditions of

the separation agreement [and] each received what was bargained

for.”    Plaintiff’s failures (a) to              challenge the trial court’s

first conclusion and (b) to prosecute the equitable distribution

action   for     thirteen    years      simply   because   she   “had   given   no
                               -9-

thought” to it during that time, fully support the trial court’s

ultimate conclusion that Plaintiff “fail[ed] to prosecute [her

action] in a timely fashion, which constitute[d] prejudice to

the [D]efendant.”     The trial court did not err in dismissing

Plaintiff’s action.

    Affirmed.

    Judges STEPHENS and DIETZ concur.

    Report per Rule 30(e).
