An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-241
                       NORTH CAROLINA COURT OF APPEALS

                              Filed: 21 October 2014


REBECCA CHAPMAN DIGH, (now
OSBORNE),
     Plaintiff,

      v.                                       Burke County
                                               No. 98 CVD 89
WILLIAM WALLACE DIGH,
     Defendant.


      Appeal by defendant from orders entered 28 August 2013 and

20 December 2013 by Judge Sherri W. Elliott in Burke County

District Court.       Heard in the Court of Appeals 27 August 2014.


      Richard W. Beyer for appellee.

      KUEHNERT &          JONES,    PLLC,    by   Daniel      A.    Kuehnert,      for
      appellant.


      ELMORE, Judge.


      William    Wallace     Digh     (defendant)    appeals       from   the   trial

court’s    denial    of    his     Rule   60(b)(4)   motion    and    his   Rule   59

motion. Defendant argues on appeal that he was not afforded due

process prior to the entry of the 2009 Domestic Relations Order.

After careful consideration, we affirm.

                                     I.     Background
                                            -2-
      The    facts      of   this    case   are    largely    undisputed       and   are

derived from an earlier opinion filed in this matter, Digh v.

Digh, COA12-506, 2012 WL 6590509 (N.C. Ct. App. Dec. 18, 2012).

Rebecca Chapman Digh (plaintiff) and defendant were married on

24 October 1976 and subsequently separated on 1 November 1995,

after almost twenty years of marriage.                     Two children were born

of   the    parties      during     their   marriage,      both   of   whom    are   now

adults.

      On 26 February 1998, a Consent Judgment (1998 Judgment) was

entered with respect to equitable distribution of the marital

property.        Defendant was a participant in the State of North

Carolina Teachers’ and State Employees’ Retirement System, and a

portion     of    his    retirement     benefits     was    subject      to   equitable

distribution.           In the 1998 Judgment, the trial court made the

following        findings    of     fact    with   regard    to    the    portion    of

defendant’s retirement benefits designated to plaintiff:

             (B) That the Plaintiff and Defendant have
             agreed   that   the   Plaintiff   shall   be
             designated   as  the   alternate  payee   of
             retirement benefits equal to fifty percent
             (50%) of the Defendant/Plan Participant's
             account which can be attributed to that
             amount which accrued from the date of the
             parties’ marriage (October 24, 1976) to the
             date of their separation (November 1, 1995),
             plus all interest accruing on the alternate
             payee’s portion from the date of the
             parties’ separation through the date the
                                -3-
         funds are disbursed to the alternate payee.


         (C) That the Plan Administrator is directed
         to make monthly payments directly to the
         Plaintiff of the amount which equals fifty
         percent (50%) of the Defendant’s account,
         which can be attributed to that amount which
         accrued from the date of the parties’
         marriage (October 24, 1976) to the date of
         their separation (November 1, 1995), plus
         all interest accruing on the alternate
         payee’s portion from the date of the
         parties’ separation through the date the
         funds are disbursed to the alternate payee.

    On   the   foregoing   findings   of   fact,   the   trial   court

similarly concluded as a matter of law, the following:


         (B) That the Plaintiff . . . shall be
         designated   as   the  alternate   payee   of
         retirement benefits equal to fifty percent
         (50%) of the Defendant/Plan Participant’s
         account which can be attributed to that
         amount which accrued from the date of the
         parties' marriage (October 24, 1976) to the
         date of their separation (November 1, 1995),
         plus all interest accruing on the alternate
         payee’s portion from the       date of the
         Parties’ separation through the date the
         funds are disbursed to the alternate payee.


          (C) That the Plan Administrator is directed
         to make monthly payments directly to the
         Plaintiff of the amount which equals fifty
         percent (50%) of the Defendant’s account,
         which can be attributed to that amount which
         accrued from the date of the parties’
         marriage (October 24, 1976) to the date of
         their separation (November 1, 1995), plus
         all interest accruing on the alternate
                                  -4-
            payee’s portion from the date of the
            parties’ separation through the date the
            funds are disbursed to the alternate payee.


Both plaintiff and defendant signed the 1998 Judgment, and the

1998 Judgment was notarized.

    At the end of 2008, defendant retired.          In February 2009,

defendant received a letter from plaintiff’s counsel dated 5

February 2009.   In the letter, counsel stated the following:

            Your ex-spouse, [Plaintiff], has retained
            this office to make sure she receives her
            share of retirement benefits as provided by
            the Judgment entered February 26, 1998[.] .
            . . Since your retirement at the end of
            2008, [Plaintiff] was to begin receiving her
            share of your retirement when you did and I
            would calculate that to be about 28% of your
            retirement benefit.   I do not know if you
            have received your first State retirement
            check but if it was not reduced by the
            amount [Plaintiff] is to receive, you will
            owe her that amount of each and every month
            that you receive the entire retirement
            amount rather than that amount reduced by
            [Plaintiff’s] share.   I have sent you this
            letter so you are aware that you need to pay
            this amount to [Plaintiff] if you are
            receiving the total benefit and that if it
            is not paid to her we will be forced to
            return to court.

    On 16 February 2009, the trial court entered a Domestic

Relations    Order   (2009   Order)   designating   the   following   as

Plaintiff’s marital portion:
                               -5-
         4. The marital interest of the nonmember ex-
         spouse in the, member’s benefits payable by
         the Retirement System shall be calculated as
         follows: fifty per cent [sic] (50%) of the
         amount    determined   by    multiplying   the
         member’s total benefit by a fraction, the
         numerator of which shall be the total months
         of creditable service earned during the
         marriage,    including    creditable   service
         purchased during the marriage, and the
         denominator of which shall be the member’s
         total number of months of creditable service
         at the time of retirement or of a withdrawal
         of accumulated contributions.


         5. The formula set forth in Finding of Fact
         4 shall be applied to all retirement
         benefits payable to the member of this his
         designated survivor(s) under any option
         contained in G.S. 135–5(g), as well as to
         any return of accumulated contributions made
         pursuant to G.S. 135–5(f) or G.S. 135–5(gl).


    Based on the foregoing and other findings of fact the trial

court made the following conclusions of law:


         5. The Retirement System shall distribute to
         the non-member ex-spouse her marital share
         of the member’s benefits payable by the
         Retirement System, calculated pursuant to
         the provisions of Finding of Fact 4 and 5 of
         this order. In the event that a return of
         accumulated contributions becomes payable
         pursuant to G.S. 135–5(f) or G.S. 135–5(gl),
         then the Retirement System shall distribute
         to the nonmember ex-spouse her marital share
         of    such    a   return    of   accumulated
         contributions, calculated pursuant to the
         provisions of Finding of Fact 5 of this
         order.
                                        -6-


            6. The non-member ex-spouse shall receive
            her   share of   the  member’s  retirement
            benefits at such time and in such payment
            form as said benefits are paid to the
            member.

            . . .

            10. A copy of this Order shall be served
            upon the Administrator of the Teachers’ and
            State Employees’ Retirement System of North
            Carolina,    and   the    Administrator    shall
            determine, within a reasonable period of
            time, whether this Order can be administered
            by the Retirement System. This Order shall
            take effect immediately and shall remain in
            effect until further orders of this Court.
            Until   this   Order   is    accepted   by   the
            Retirement    System,   this    Court    retains
            jurisdiction to modify this Order as may be
            required or necessary.

      On 9 July 2009, defendant filed a motion in the cause (2009

Motion) in which he petitioned the court to modify the 2009

Order.    However,       on   18   February    2011,     defendant    voluntarily

dismissed, without prejudice, his 2009 Motion.                 On 17 May 2011,

defendant filed a second motion in the cause (2011 Motion) in

which he petitioned the court for a second time to modify the

2009 Order. Defendant again argued that “[d]efendant was lead to

believe    that   a      limited    amount    of   his   retirement    would   be

transferred to the Plaintiff amounting [to] fifty percent (50%)

of the retirement which was paid in between October 24, 1976,

and   November      1,    1995.”    Based     on   the   foregoing,    defendant
                                     -7-
contended that “the division [of the retirement account] should

have been on the active portion of the retirement accumulated

during the marriage between the dates specified in the [1998

Judgment]     and   nothing     more.”       Defendant   also   argued      that

“[p]laintiff failed to take reasonable steps at or near the time

of the entry of the [court’s] Order [to] have the portion of the

retirement transferred into her individual name for payment[.]”

Defendant prayed that the court modify the 2009 Order, on the

basis of a mutual mistake of fact, to reflect the agreement

reached by the parties and memorialized in the 1998 Judgment.

On 12 December 2011, the trial court entered an order denying

defendant’s 2011 Motion.          Defendant appealed to this Court.           We

affirmed the order of the trial court denying defendant’s 2011

Motion on the basis that defendant only established a unilateral

mistake, not a mutual one.        See id.

       Defendant subsequently filed a Rule 60(b)(4) motion on 12

April   2013,    moving   the   trial    court   to   declare   as   void    the

following:      (1) the 2009 Order and (2) the portion of the 1998

Judgment dealing with the division of property.                 In an order

filed 28 August 2014, the trial court found that the 2009 Order

“did    not   contain     any    provision     different   from      the    1998

[Judgment] other than stating the correct calculation of the
                                           -8-
Plaintiff’s interest in the Defendant’s State retirement[.]”                     It

concluded as a matter of law that defendant’s motion was without

merit, as the 1998 Order called for the entry of a Qualified

Domestic Relations Order, if necessary, or if required by the

Plan Administrator of the State of North Carolina Teachers’ and

State Employees’ Retirement System.

       Defendant filed a Rule 59(a) motion for a new trial and

Rule 59(e) motion to alter or amend the 28 August 2013 judgment.

The trial court denied defendant’s Rule 59 motions, concluding

that    no     grounds     exist     on     which   to    grant   these     motions.

Defendant now appeals to this Court.

                                          II. Analysis

       Defendant seeks relief on the basis that the 2009 Order is

“void ab initio” because the due process notice requirement was

not met.       We disagree.

       Here,     the     trial     court     neither     lacked   subject    matter

jurisdiction nor was there a violation of defendant’s right to

due process.       “The fundamental requirement of due process is the

opportunity to be heard at a meaningful time and in a meaningful

manner.”       Mathews v. Eldridge, 424 U.S. 319, 333, 47 L. Ed. 2d

18, 32 (1976) (citation and quotation omitted).                   “Generally, due

process requires notice and a hearing before the government may
                                              -9-
deprive an individual of liberty or property.”                            State v. Poole,

___ N.C. App. ___, ___, 745 S.E.2d 26, 34 (2013) writ denied,

review denied, appeal dismissed, ___ N.C. ___, 749 S.E.2d 885

(2013).

      On these particular facts, notice to defendant prior to the

entry of the 2009 Order was not a prerequisite for the Order to

be binding on defendant. Defendant was afforded due process at

the   time    he    consented      to    the        terms    of    the    1998   Judgment.

Although defendant contends in his Rule 60(b)(4) motion that he

“did not have notice or an opportunity to be heard by the court

on    the    substance      of    the     1998       [Judgment][,]”         we   are     not

persuaded.        Defendant signed the 1998 Judgment before a notary,

and the 1998 Judgment specifically states “WE CONSENT” above the

signature line.          The terms of the 1998 Judgment clearly provide

for   the    entry    of     a    Qualified         Domestic       Relations     Order    if

required     by    the     Plan   Administrator             of    the    State   of    North

Carolina Teachers’ and State Employees’ Retirement System, and

it specifically directs the Plan Administrator to make monthly

payments “directly to the Plaintiff of the amount which equals

fifty percent (50%) of the Defendant’s account” from the date of

the   parties’     marriage       to    the    date    of    their       separation.      By

stipulating to these terms, defendant cannot now argue that the
                                           -10-
trial court erred in entering the 2009 Order, which is premised

entirely      on   the       agreed-upon       terms    set     forth        in    the        1998

Judgment.      See e.g., Holden v. John Alan Holden, 214 N.C. App.

100, 112, 715 S.E.2d 201, 209 (2011) (concluding that when a

consent order clearly stated that the plaintiff was to pay the

defendant a sum certain, and the plaintiff stipulated that she

failed to do so, the plaintiff cannot argue that the trial court

erred in ordering the plaintiff to pay).

       In   sum,   a     review     of   the    record    reveals        that       defendant

agreed to the terms set forth in the 1998 Judgment, and the

calculation of plaintiff’s interest in defendant’s retirement

contributions and benefits earned during the marriage and prior

to the date of separation set forth in the 2009 Order is correct

and    reflects    the       agreed-upon       terms.     There         is    insufficient

evidence in the record for us to determine whether a copy of the

1998    Judgment       was    served     upon    the    State      of   North       Carolina

Teachers’ and State Employees’ Retirement System.                                 Regardless,

the 2009 Order provides that a copy of the 2009 Order shall be

served      upon   the       Plan   Administrator.            We   find       this       to    be

sufficient.            We     overrule    defendant’s         second         argument—that

plaintiff’s failure to serve the North Carolina Teachers’ and

State Employees’ Retirement System a copy of the 1998 Judgment
                                        -11-
rendered the judgment void.             We decline to address defendant’s

remaining    arguments    as    he     merely   “incorporates        by     reference

prior arguments” and offers no substantive arguments in support

of   his   final    issues.      See    N.C.    R.     App.    P.,   Rule    28(b)(6)

(Arguments    on    appeal     must    “contain      the      contentions     of   the

appellant    with    respect    to     each    issue    presented.     Issues      not

presented in a party’s brief, or in support of which no reason

or argument is stated, will be taken as abandoned.”).

      Affirmed.

      Judges CALABRIA and STEPHENS concur.

      Report per Rule 30(e).
