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Surles v. Surles11/19/2002
PUBLISHED
This appeal arises from the distribution of marital property following the divorce of Junious and Bernice Surles. On appeal, Mr. Surles presents one issue: In denying his Rule 60(b) motion, did the trial court err by finding that the distributive judgment awarded Ms. Surles the "surrender value" of Mr. Surles' life insurance policy ($32,617.92,), rather than the estimated fair market value of the policy ($192,617.92)? We answer, no, and therefore uphold the trial court's denial of the Rule 60(b) motion.
In September 1998, Ms. Surles bought an equitable distribution action that resulted in a 7 December 2000 property distribution judgment in which the trial court made the following relevant findings of fact:
XVI. he defendant purchased a life insurance policy through Protective Life Insurance. . . .
he Court finds that the life insurance had a cash value as of the date of separation of $32,617.92, and the Court finds that this is marital property.
XXI. he Court finds there should be an unequal division [of marital property]. Based on these findings of fact, the trial court awarded Ms. Surles "absolute ownership and exclusive possession of" Mr. Surles' life insurance policy.
In an attempt to satisfy that part of the judgment, Mr. Surles presented to Ms. Surles a check for $32,617.92. However, Ms. Surles refused the check, demanding instead, the transfer of the life insurance policy. Mr. Surles canceled the check, and presented to her another check in the same amount. In response, Ms. Surles filed a Contempt Motion against Mr. Surles for his failure to transfer the policy. Shortly thereafter, Mr. Surles filed a Motion for Relief pursuant to N.C. Gen. Stat. ยง 1A-1, Rule 60(b).
In his Rule 60(b) Motion, Mr. Surles argued that the 7 December 2000 judgment distributing the marital property should be reformed because of a clerical mistake. Specifically, Mr. Surles noted that the trial court consistently referred to the life insurance policy as having a surrender value of $32,617.92. However, Mr. Surles argued that because of his age, seventy-seven years old, the policy had a fair market value of $192,617.92. Mr. Surles' attorney argued that:
This would increase the total value of the marital property by $160,000, with [Ms. Surles] taking 100% of the increase. Simple arithmetic reveals that [Ms. Surles'] share of the marital property would then increase [from 58%] to a whopping 74%, with [Mr. Surles'] share plummeting [from 42%] to 26%. Given the factors the Court [considered] . . . it is difficult to imagine that the Court intended an outcome so unfavorable to [Mr. Surles].
In the alternative, Mr. Surles argued the judgment should be set aside because of surprise, excusable neglect, and fairness. Mr. Surles argued that "no reasonable person could review the Court's Findings of Fact . . . and conclude that a $250,000 award from [Mr. Surles to Ms. Surles] is fair by any stretch of the imagination and the facts . . . as contained in the record."
On 17 October 2001, District Court Judge A. Elizabeth Keever, the same judge who issued the challenged judgment, denied Mr. Surles' Rule 60(b) Motion and found that:
8. If the Court had only wanted to give the cash value of life insurance policy to [Ms. Surles] the order would have spelled that out clearly and would have raised the amount of the distribution award.
9. In addition, the Court did not award [Ms. Surles] alimony based in large part on giving her the ownership of the Protective Life Insurance Policy.
From that denial, Mr. Surles appeals to this Court.
We note, at t
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