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Surles v. Surles11/19/2002
he onset, that Mr. Surles presents arguments arising from the 7 December 2000 equitable distribution judgment that: (1) "the trial court's judgment property distribution failed to give Mr. Surles adequate notice of its intended effect"; (2) "the impact of the trial court's judgment property distribution is too arbitrary to have been the result of a reasoned decision"; (3) "the trial court initially did intend that Ms. Surles get the cash surrender value" of the life insurance policy; and (4) "the trial court's decision is unfair." These arguments are not properly before this Court. Mr. Surles lost his right to appeal the 7 December 2000 judgment by failing to timely appeal from it. Rather, Mr. Surles is currently before this Court appealing the trial court's denial of his Rule 60(b) motion. On an appeal from a Rule 60(b) motion, Mr. Surles is limited to arguing that the trial court abused its discretion in denying that motion. Mr. Surles may argue that the judgment underlying the Rule 60(b) motion is erroneous only insofar as the error demonstrates the trial court's abuse of discretion in denying the Rule 60(b) motion. Because Mr. Surles fails to cast his arguments correctly, we will consider and address his arguments only insofar as the arguments place the trial court's discretion in issue in denying the Rule 60(b) motion.
First, Mr. Surles contends that the trial court's denial of his 60(b) motion was not the product of a reasoned decision. In denying Mr. Surles' motion, the court made the following pertinent Findings of Fact:
5. At the hearing on September 27, 2000, the Court found that the life insurance policy with Protective Life Insurance was marital property.
6. The Court, in its ruling on the issue of Equitable Distribution, was required to place a value on the policy. The life insurance policy was a whole life policy and the Court used the cash value on the date of separation. The Court further realized that the premiums were not fully paying the cost of the policy the cash value would be reducing each month. Such reduction over time could have a significant impact on the face value or cash value of the policy.
7. In reaching the ultimate division of the parties' marital estate, the Court took into consideration [Mr. Surles'] separate property value.
There were significant contested issues as to whether the property was marital or separate, the court found a bulk of the estate to be separate property.
8. Based on that significant factor and other factors the Court determined how to equitably divide the rest of the property. 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.
These findings of fact are supported by competent evidence. The record indicates that the trial court determined that Mr. Surles had separate property worth over $250,000 and that Ms. Surles had separate property worth under $30,000. Moreover, affirmation of the trial court's order will not "probably amount to a substantial miscarriage of justice." Therefore, we find no merit to Mr. Surles' argument that the trial court's denial of his Rule 60(b) motion was arbitrary, not reasoned, or patently unfair.
Second, Mr. Surles argues that the trial court intended to award Ms. Surles $32,617.92, the surrender value of the life insurance policy, and not $192,617.92, the fair market value of the policy. Mr. Surles contends that the trial court abused its discretion by failing to correct this clerical error. However, the trial court (the same court that entered the challenged judgment) respond
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