Appeals court reverses Alamance County judge’s denial of motion to set aside equitable distribution order in divorce settlement
The North Carolina Court of Appeals has reversed an April 2025 ruling by Alamance County chief district court judge Kathryn (“Katie”) Overby that denied a defendant’s motion to set aside a judgment for equitable distribution in a divorce settlement.
APPEALS COURT DECISION:
“we hold [THE tRIAL COURT (district court JUDGE OVERBY)] abused its discretion by denying Defendant’s motion to set aside judgment. . .
“The record establishes that justice demands relief be granted because the [district court judge OVERBY’s] order denying relief from judgment is one that is unsupported by reason or one so arbitrary that it could not have been the result of a reasoned decision.
“Further, [JUDGE OVERBY] appears to have shifted the burden
to the Defendant to disprove he was noticed even though the record contains no evidence notice was given.”
A three-judge panel for the Appeals Court issued an opinion Wednesday reversing Overby’s ruling and remanded the case to Alamance County, concluding that the ruling was “manifestly unsupported by reason.”
On appeal, the defendant, George T. Brincefield, argued that the judgment ordering equitable distribution was entered without his ever receiving notice or having a meaningful opportunity to participate in a November 2024 hearing on his ex-wife’s request for equitable distribution of the marital assets.
George and Debra Brincefield married in 1999 and separated in 2018. George Brincefield was served with a divorce complaint in May 2024, according to the case background.
In her opinion for the Appeals Court, judge April Wood concluded that Overby had abused her discretion by denying George Brincefield’s motion to set aside the judgment for equitable distribution of the marital assets.
In October 2024, Overby granted Debra Brincefield’s request for absolute divorce and resumption of her maiden name. The other matter, the claim for equitable distribution, was held open, according to the case background.
“The divorce judgment makes no mention of a future hearing date on the issue of equitable distribution, and the record is devoid of any evidence that [the] defendant was ever served with any continuance order or notice of hearing for an equitable distribution,” Wood noted in her opinion for the Court of Appeals.
On appeal, George Brincefield argued that he had received no notice of a November 2024 hearing at which Overby granted Debra Brincefield’s claim for equitable distribution.
At the conclusion of a hearing on November 27, 2024, Overby entered an order granting Debra Brincefield’s request for equitable distribution, according to the case background, which notes that the court file contains no evidence indicating that the defendant had been served with notice of that hearing.
Overby ultimately concluded in November 2024 that “an equal division of the marital and divisible property and debts was not equitable” and awarded Debra Brincefield, who served as her own attorney, possession of the marital residence, while also directing Debra Brincefield to pay a “distributive award” of $15,000 to her ex-husband.
In January 2025, Debra Brincefield filed a motion for contempt and order to show cause, alleging that her ex-husband had willfully failed to comply with Overby’s equitable distribution order by refusing to allow her and a potential buyer inside the marital residence, “thus impeding the purchase process,” according to the case background.
In March 2025, George Brincefield filed a motion for relief from the judgment for equitable distribution, claiming that he hadn’t attended any of the earlier hearings because he was unaware that they’d been scheduled. Overby pointed out that the notice of the November 2024 hearing, which was mailed through the U.S. Postal Service, would’ve been marked undeliverable and returned if the defendant hadn’t received it.
A portion of the transcript from the March 2025 hearing quotes Overby saying, “I haven’t seen anything that’s come back to my office or to the clerk’s office saying it was undelivered.”
The judge asked the defendant if he had proof that he hadn’t received notice of the November 2024 hearing in which Overby granted Debra Brincefield’s request for equitable distribution. An attorney who represented George Brincefield for the March 2025 hearing responded, “No your honor; we don’t have any documentation saying it was undelivered,” the case background states.
Overby subsequently entered an order denying George Brincefield’s motion for relief from the judgment for equitable distribution in April 2025.
On appeal, George Brincefield contended that Overby had erred by denying his motion for relief from the judgment because “a substantial right was affected” and that she had “denied relief solely on the absence of returned mail.”
The Appeals Court agreed, concluding that Overby had improperly denied George Brincefield’s motion to set aside the equitable distribution judgment.
The Appeals Court concluded Overby had abused her discretion “because there were no findings made addressing [the] defendant’s verified evidence of non-receipt and [Overby’s] decision was based on…apparent knowledge that notice of the hearing was not returned,” Wood wrote for the appellate court.
“The record establishes that justice demands relief be granted because the [district court judge’s] order denying relief from judgment is one that is unsupported by reason or one so arbitrary that it could not have been the result of a reasoned decision,” Wood wrote, citing an opinion issued by the Appeals Court in 2007. A 1998 decision by the N.C. Supreme Court established, “The fundamental premise of procedural due process protection is notice and the opportunity to be heard,” Wood wrote.
Wood also pointed out that Overby had not required the plaintiff, Debra Brincefield, to show that a notice for the November 2024 hearing had been sent “and, instead, presumed notice had been sent” either by the district court judges’ office or the clerk of court, “with no supporting documentation of such in the record.”
“Further, [the chief district court judge]appears to have shifted the burden to the defendant to disprove he was noticed, even though the record contains no evidence notice was given,” Wood wrote.
The Appeals Court reversed Overby’s order denying George Brincefield’s motion for relief from the judgment for equitable distribution and remanded the case to Alamance County.
MORE FROM APPEALS COURT DECISION:
“While the trial court [Judge Overby] presumed notice of the equitable distribution hearing had been sent, the record does not reveal: (1) that a copy of the alleged continuance order had been sent to Defendant; (2) who would have sent the alleged continuance order; or (3) that a continuance order had actually been filed. Moreover, no equitable distribution inventory affidavits were filed by either party as required by the local rules, and the trial court did not enter any equitable distribution pretrial orders. Without evidence that any of the requirements of Rule 5 or Rule 6 were met or evidence that Defendant had actual notice of the equitable distribution hearing, we cannot say Defendant’s ‘right to due process and notice of the proceedings was not violated.'”
“. . .We conclude the trial court abused its discretion by denying Defendant’s motion to set aside the equitable distribution order because its ruling was manifestly unsupported by reason.”
“The trial court relied solely on its own belief that notice of the equitable distribution hearing had been sent to Defendant without making any inquiry into or requesting to view any evidence that could support a finding that Defendant had actually been sent notice of the hearing. . .”
Judges Jeffery Carpenter and Michael Stading concurred with Wood’s opinion for the Court of Appeals.
George Brincefield was represented for his appeal by Hillsborough attorney Daron D. Satterfield.
The plaintiff, Debra Reaves Brincefield, represented herself for the appeal.
To read the full Court of Appeals decision, go here: https://appellate.nccourts.org/opinions/?c=2&pdf=45712
