An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-821
                         NORTH CAROLINA COURT OF APPEALS

                              Filed: 18 February 2014


JEFFREY E. HIGGINS,
     Plaintiff-Appellant,

      v.                                        Forsyth County
                                                No. 02 CVD 6068
THERESSA C. JORDAN,
(formerly HIGGINS),
     Defendant-Appellee.


      Appeal by Plaintiff from order entered 13 January 2012 and

judgment entered 20 December 2012 by Judge Chester C. Davis in

District Court, Forsyth County.                Heard in the Court of Appeals

10 December 2013.


      J. Clark Fischer for Plaintiff-Appellant.

      C.R. “Skip” Long, Jr. for Defendant-Appellee.


      McGEE, Judge.


      Jeffrey      E.    Higgins    (“Plaintiff”)      filed         an   action    for

divorce     and     equitable       distribution      on        29    August       2002.

Plaintiff’s       wife   at   the   time,   Theressa       C.    Jordan     (formerly

Higgins)    (“Defendant”),         responded    pro   se   by    letter     dated    21

October 2002, contesting certain parts of Plaintiff’s equitable
                                               -2-
distribution claim.            The judgment on absolute divorce in this

matter   was    entered       on    18        November    2002,     but    the    issue     of

equitable distribution was continued, to be resolved at a later

date.    A pre-trial order was entered on 21 October 2003, signed

only by Plaintiff and his attorney.                       According to the judgment

in this matter, “[a]t some time after October 20, 2003, the

court    conducted       an    equitable             distribution     trial      with      the

Plaintiff   and    his    attorney.              Neither      the   Defendant        nor   any

attorney representing her were present for the trial.”                               However,

Plaintiff’s attorney never prepared the equitable distribution

judgment    following         the   trial,        so     no    equitable       distribution

judgment was ever filed based upon that first trial.

      Defendant, now represented by counsel, filed a “Motion Not

to Enter Proposed Judgment; Motion to Set Aside/Amend Pre-trial

Order; Motion to Set Trial Date” on 9 February 2009.                              Following

a 20 July 2010 hearing, the trial court took the unusual step of

ordering Plaintiff and Defendant to select an appellate attorney

to    prepare     an     “advisory            opinion”        concerning       how    issues

surrounding the potential setting aside of the pre-trial order

and   decision    on     whether         to    enter     an    equitable       distribution

judgment based upon the prior trial, might be treated on appeal.

This was accomplished by order entered 21 March 2011.                             Plaintiff

and   Defendant    selected         an    appellate       attorney        to   prepare     the
                                          -3-
“advisory     opinion.”          The     appellate      attorney      submitted      an

“advisory opinion” on 16 May 2011.                     In   an    order   entered    13

January    2012,    the   trial        court    granted     Defendant’s      motions,

declining to enter Plaintiff’s equitable distribution judgment,

setting aside the 21 October 2003 pre-trial order, and ordering

Plaintiff and Defendant to arrange and schedule mediation and,

if Plaintiff and Defendant were unable to reach an agreement in

mediation, a new pre-trial order would be entered.                        This matter

again went to trial on 22 May 2012.                The trial court entered an

equitable distribution judgment on 20 December 2012 which, after

factoring    the    assets   and       liabilities     of   the    marital      estate,

awarded Plaintiff $105,077.23 of “the net marital estate” and

Defendant $102,060.45 of “the net marital estate[.]”                        Plaintiff

appeals.

                                          I.

    In Plaintiff’s first argument, he contends the trial court

erred by abdicating its judicial responsibilities in granting

Defendant’s motion to set aside the 21 October 2003 pre-trial

order.     We disagree.

    By     motion    filed   9    February      2009    (amended     4    May   2010),

Defendant moved, pursuant to N.C. Gen. Stat. § 1A-1, Rules 59

and 60, for the trial court to, inter alia, set aside the pre-

trial order filed 21 October 2003.                     In its 13 January 2012
                                  -4-
order, the trial court, “in its discretion, [set] aside the

October 21, 2003 Pre-Trial Order[.]”        “As with Rule 59 motions,

the standard of review of a trial court's denial of a Rule 60(b)

motion is abuse of discretion.”         Davis v. Davis, 360 N.C. 518,

523, 631 S.E.2d 114, 118 (2006) (citation omitted).

    We first note there is nothing in the record that indicates

Plaintiff objected to the trial court’s ordering and considering

the “advisory opinion” at any time.             The 21 March 2011 order

selecting    the   appellate   attorney    to    provide   the   “advisory

opinion” states in relevant part:

            IT FURTHER APPEARING to the Court that after
            hearing arguments and contentions from both
            attorneys, that an advisory opinion from an
            experienced appellate attorney would be
            useful to the [c]ourt and to the parties.
            After some discussions in open court, the
            parties agreed to equally share the cost of
            this advisory opinion (conditioned on the
            total   cost    not   exceeding   $1,000.00).
            Counsel agreed to request that [an appellate
            attorney]    review   the    file   and   the
            contentions of the parties in order to
            provide an advisory opinion.

It appearing that Plaintiff failed to preserve this issue for

appellate   review   through   objection   in    the   trial   court,   this

argument is deemed abandoned.      Dogwood Dev. & Mgmt. Co., LLC v.

White Oak Transp. Co., 362 N.C. 191, 195, 657 S.E.2d 361, 363

(2008) (citation omitted) (“Rule 10 . . . provides that ‘[i]n

order to preserve a question for appellate review, a party must
                                         -5-
have presented to the trial court a timely request, objection or

motion, stating the specific grounds for the ruling the party

desired the court to make.’”).

      Assuming, arguendo, that Plaintiff properly preserved this

issue for appellate review, his argument still fails.                    In its 13

January 2012 order, the trial court stated:

            IT FURTHER APPEARING to the Court that after
            hearing   and   considering   arguments    and
            contentions from both attorneys, carefully
            considering the verified pleadings in the
            file, considering the Advisory Opinion filed
            in this case, that the interests of justice,
            and a strong public policy favoring that
            parties have their "day in court," the
            length of time and delays which have
            occurred in this case, the [c]ourt, in its[]
            discretion    is    declining     to     enter
            Plaintiff[‘]s        proposed        equitable
            distribution judgment based upon a trial
            which occurred in December of 2003.         In
            addition, the Court is setting aside the
            pre-trial order entered into October 21,
            2003 based upon the fact that, inter alia,
            said order was never consented to by . . .
            Defendant.

We   do   not   find   that   the    trial     court   abdicated   its    judicial

responsibility by considering the “advisory opinion” authored by

the attorney selected by both parties.                   The 13 January 2012

order makes clear that the trial court considered all arguments

of   counsel,    the   opinion      of   the   appellate   attorney,      and   the

pleadings before exercising its discretion to set aside the 21
                                            -6-
October 2003 order.           Plaintiff has failed to demonstrate any

abuse of discretion.         This argument is without merit.

                                            II.

       In his second argument, Plaintiff contends the trial court

abused     its     discretion        in     granting              Defendant     an   unequal

distribution in her favor.            We disagree.

       Plaintiff argues that the trial court improperly granted

Defendant an unequal distribution of the marital assets based

upon a finding that Plaintiff mismanaged family finances.                                 We

need     not   determine     whether        the           trial    court’s    finding   was

supported by the evidence, as Plaintiff fails to properly argue,

much less demonstrate, that Defendant received a greater share

of the marital assets than did Plaintiff.

        In the 20 December 2012 equitable distribution judgment,

the trial court ordered that Plaintiff receive $105,077.23 of

“the   net     marital   estate[.]”              The       trial     court    ordered   that

Defendant      receive   $102,060.45            of    “the    net     marital    estate[.]”

Plaintiff does not contest these numbers.                           To the extent that a

difference of $3,016.78 constituted an unequal distribution of

the    marital     assets,      it        was        an     unequal     distribution      in

Plaintiff’s favor.       This argument is without merit.

       Affirmed.

       Judges HUNTER, Robert C. and ELMORE concur.
                         -7-
Report per Rule 30(e).
