An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-181
                        NORTH CAROLINA COURT OF APPEALS

                              Filed: 5 September 2014


LEVONNE H. SWAIN,
     Plaintiff,

      v.                                       Craven County
                                               No. 10 CVD 888
BRYAN S. SWAIN,
     Defendant.


      Appeal by defendant from order and judgment entered 17 June

2013 by Judge Paul Quinn in Craven County District Court.                     Heard

in the Court of Appeals 14 August 2014.


      Chesnutt, Clemmons & Peacock, P.A., by Gary H. Clemmons,
      for plaintiff-appellee.

      McCotter Ashton, P.A.,            by    Rudolph   A.    Ashton,    III,   for
      defendant-appellant.


      HUNTER, JR., Robert N., Judge.


      Bryan S. Swain (“Defendant”) appeals from an order granting

Levonne H. Swain’s (“Plaintiff”) motion for summary judgment and

concluding that the separation agreement and property settlement

entered    into    by   the   parties    is    valid    and   enforceable.        We

affirm.
                                       -2-
      Plaintiff and Defendant were married on 30 December 1999.

On 10 June 2009, the parties separated.                  On 3 August 2009, the

parties     entered     into   a   Separation      and     Property        Settlement

Agreement     (“the     Agreement”).         Pursuant      to        the   Agreement,

Plaintiff    received,     inter    alia,    the     marital     home,       household

furnishings,      and   approximately    eighty      acres      of    real   property

acquired     by   the    parties    during     the      marriage.            Defendant

received, inter alia, a 1999 Jeep Wrangler, full ownership of

his 401(k) assets, a gun collection, and a division of shop

tools acquired by the parties during the marriage.                           Defendant

was also paid $15,000 from his father-in-law as an incentive to

sign the Agreement.

      On 14 June 2010, Plaintiff began this action by filing a

complaint seeking a judgment of absolute divorce from Defendant

based on a one year separation.             Defendant filed an answer on 29

July 2010 alleging that the Agreement “resolved all issues which

arose out of the marriage” and requested a judgment of absolute

divorce.     Before a hearing in the matter, Defendant obtained new

counsel and on 9 August 2010, Defendant filed an amended answer

and   counterclaim      seeking    rescission      of    the    Agreement      and   an

equitable distribution of property upon divorce pursuant to N.C.

Gen. Stat. § 50-20 (2013).          Specifically, Defendant alleged that
                                           -3-
the   Agreement       should   be    rescinded     based     on:      (1)      patent   and

fundamental     unfairness,         (2)   mental       incapacity,       (3)    coercion,

duress, and undue influence, and (4) mistake.

      Following a reply by Plaintiff to Defendant’s counterclaim,

the parties began discovery.                Thereafter, on 22 January 2013,

Plaintiff moved for partial summary judgment on the issue of

whether the Agreement was valid and enforceable, asserting that

Defendant had ratified the Agreement.                    A hearing on the motion

was held on 3 June 2013.                  On 17 June 2013, the trial court

entered an order and judgment granting Plaintiff’s motion and

concluding      that     the   Agreement         was     valid     and      enforceable.

Plaintiff      then    moved   for    summary      judgment      on      the    issue   of

absolute divorce, which the trial court granted on 23 July 2013.

Defendant appeals.

      Before this Court, Defendant contends that the trial court

erred in granting summary judgment in favor of Plaintiff with

respect   to    the    validity      of    the   Agreement       because        there   are

genuine issues of material fact concerning Defendant’s grounds

for   rescission.         Specifically,          Defendant       contends        that    he

forecasted evidence sufficient to send the following issues to

the trier of fact: (1) mental capacity, (2) coercion, duress,

and undue influence, and (3) constructive fraud.
                                               -4-
       Although Defendant’s answer and counterclaim did not allege

constructive        fraud       as     a    basis     for    rescission,       the    hearing

transcript reveals that argument was made on the issue before

the    trial     court     at    the        motion    hearing.       At    the       hearing,

Defendant argued that the evidence supported a finding that the

parties, as husband and wife, were in a fiduciary relationship

when the Agreement was signed and that Plaintiff took advantage

of    that   relationship            to     procure    a     settlement    favorable        to

herself.        See generally Searcy v. Searcy, 215 N.C. App. 568,

573, 715 S.E.2d 853, 857 (2011) (“A claim based on constructive

fraud is sufficient if it alleges facts and circumstances (1)

which created the relation of trust and confidence, and (2)

[which]      led    up    to     and       surrounded       the   consummation        of   the

transaction        in    which       [the    party]     is    alleged     to    have    taken

advantage of his position of trust.” (internal quotation marks

and citation omitted) (first alteration in original)).

               [T]he nature of summary judgment procedure
               (G.S. 1A-1, Rule 56), coupled with our
               generally    liberal    rules    relating    to
               amendment   of    pleadings,    require    that
               unpleaded affirmative defenses be deemed
               part of the pleadings where such defenses
               are raised in a hearing on motion for
               summary judgment.      Thus, although it is
               better   practice    to   require   a    formal
               amendment   to   the    pleadings,    unpleaded
               defenses, when raised by the evidence,
               should be considered in resolving a motion
                                          -5-
              for summary judgment.


Ridings v. Ridings, 55 N.C. App. 630, 632, 286 S.E.2d 614, 615–

16   (1982)     (internal       quotation       marks    and    citations        omitted)

(alteration in original); see also Searcy, 215 N.C. App. at 575,

715 S.E.2d at 858 (considering a constructive fraud claim based

on   evidence       presented    at     the    hearing    on    summary     judgment).

Accordingly, we consider Defendant’s constructive fraud claim

properly before us.          However, because Defendant’s brief to this

Court     makes      no   argument      with     respect       to   the    fundamental

unfairness of the Agreement or mistake, these issues have been

waived on appeal.         See N.C. R. App. P. 28 (“The scope of review

on   appeal    is    limited    to    issues     so   presented     in     the    several

briefs.     Issues not presented and discussed in a party’s brief

are deemed abandoned.”).

      Summary        judgment    is     appropriate       where     “the    pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that any party is

entitled to a judgment as a matter of law.”                         N.C. R. Civ. P.

56(c).     “We review a trial court’s order granting or denying

summary judgment de novo.               Under a de novo review, the court

considers      the     matter    anew     and    freely     substitutes          its   own
                                     -6-
judgment for that of the lower tribunal.”           Craig v. New Hanover

Cnty. Bd. of Educ., 363 N.C. 334, 337, 678 S.E.2d 351, 354

(2009) (internal quotation marks and citations omitted).

    Parties to a marriage may, by written agreement, forego

their   right   to   equitable       distribution   and   decide       between

themselves how their marital estate will be divided following

divorce.   N.C. Gen. Stat. § 50-20(d).           “[A] marital separation

agreement is generally subject to the same rules of law with

respect to its enforcement as any other contract.”                   Reeder v.

Carter, ___ N.C. App. ___, ___, 740 S.E.2d 913, 917 (2013).

Thus, such agreements “are subject to recission on the grounds

of (1) lack of mental capacity, (2) mistake, (3) fraud, (4)

duress, or (5) undue influence.”           Searcy, 215 N.C. App. at 572,

715 S.E.2d at 857.

    However, “a transaction procured by either fraud, duress or

undue influence may be ratified by the victim so as to preclude

a subsequent suit to set the transaction aside” so long as, at

the time of the ratification, “the victim had full knowledge of

the facts and was then capable of acting freely.”              Link v. Link,

278 N.C. 181, 197, 179 S.E.2d 697, 706–07 (1971).               Likewise, a

transaction entered into by a party who lacks capacity may be

ratified   so   as   to   preclude    a    subsequent   suit    to    set   the
                                               -7-
transaction aside.            Ridings, 55 N.C. App. at 633–34, 286 S.E.2d

at 616–17.        Because there is a presumption of competence, the

party    countering          evidence     of       ratification      on    the   basis      of

incompetency must present evidence of continued incompetence at

the time of the ratification.                  Id. at 634, 286 S.E.2d at 617.

    “A      party        ratifies            an      agreement       by     retroactively

‘authoriz[ing]          or     otherwise           approv[ing]       [it], . . . either

expressly    or    by    implication.’               Thus,    ratification       can   occur

where a party accepts benefits and performs under an agreement.”

Goodwin v. Webb, 152 N.C. App. 650, 656, 568 S.E.2d 311, 315

(2002)    (Greene,           J.,     dissenting)           (alteration     in    original)

(internal    citation         omitted),           reversed    for   reasons      stated     in

dissenting opinion by 357 N.C. 40, 577 S.E.2d 621 (2003).                                   For

example, in Lowry v. Lowry, 99 N.C. App. 246, 393 S.E.2d 141

(1990),     we    upheld           summary        judgment     on    the    basis      of     a

ratification       where           the   plaintiff          acquiesced     and    received

benefits under a separation agreement for almost three years

without complaint.             Id. at 253–54, 393 S.E.2d at 145–46;                         see

also Tripp v. Tripp, 266 N.C. 378, 380, 146 S.E.2d 507, 508

(1966)    (finding       ratification              where     the    plaintiff     made      no

complaint until after she had received the benefits under the

contract for two full years); Hill v. Hill, 94 N.C. App. 474,
                                               -8-
479, 380 S.E.2d 540, 544 (1989) (finding ratification where wife

continued to accept benefits long after she became aware of the

alleged wrongdoing).

      Here, we do not need to address whether there were genuine

issues of material fact concerning Defendant’s alleged grounds

for   rescission         at    the     time    the        Agreement     was    made       because

uncontroverted           evidence      in     the     record      shows     that      Defendant

subsequently         ratified        the    agreement.            Defendant        signed       the

Agreement      on    3    August       2009     and       did    not    present       a     formal

objection to the Agreement until he filed his amended answer and

counterclaim on 10 August 2010.                      During the intervening period

of    time,     Defendant          received         and    possessed      the        1999      Jeep

Wrangler,      the     gun     collection,          and    his   division       of    the      shop

tools.     Defendant did not attempt to return these assets to the

marital estate.               Moreover, Defendant received, deposited, and

spent    the    $15,000         from    his     father-in-law.              Defendant          also

deposited $24,000 in 401(k) assets into his bank account and

spent at least a portion of that money.

      Furthermore,            in   both       his     answer      and     amended         answer,

Defendant      admitted        that    he     was    not     presently        incompetent        or

under legal disability.                    Without resolving whether the record

evidence       shows      a     genuine       issue        of    material       fact      as    to
                                      -9-
Defendant’s alleged grounds for rescission when the Agreement

was made, we hold that Defendant has failed to produce evidence

of    incompetence,     fraud,   coercion,   duress,   or    undue    influence

when Defendant acquiesced in the Agreement.                  Accordingly, we

hold that Defendant has ratified the Agreement and is estopped

from denying its authority.         See Pulley v. Pulley, 255 N.C. 423,

121 S.E.2d 876 (1961).           Thus, the trial court did not err in

granting Plaintiff’s motion for summary judgment with respect to

the   validity     of   the   Agreement.     The   trial    court’s   order   is

affirmed.

       AFFIRMED.

       Judges STEELMAN and GEER concur.

       Report per Rule 30(e).
