• Does Summary Judgment Divorce Require a Hearing?

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    Absolute divorce trials seldom, if ever, involve any sort of courtroom drama. Most of the time, these ‘trials’ involve one party coming to court to testify for less than 5 minutes or the attorney of one party coming to court to hand up a summary judgment for the judge to sign. Most requests for divorce are not contested – in large part because there generally are no defenses to divorce other than the failure to live separate and apart for one year.

    So it is no wonder that some districts have decided to take the process of entering summary judgment divorce out of the courtroom. To save valuable court time, some districts have decided to adopt the practice of having judges enter summary judgment divorces after reviewing the pleadings in chambers. Notices are sent to the non-moving party stating that the summary judgment will be entered by the court on a specific date or at some point during a specific week. No actual hearing is held in the courtroom on the motion for summary judgment.

    Is this okay?

    Divorces Generally Require a Trial

    Divorces never have been easy to obtain. For public policy reasons, state legislatures historically have imposed obstacles to ending a marriage. There was a time when individuals could divorce only through an act of legislation. Then marriages could be dissolved only upon proof that one spouse had committed some act of misconduct and the other was completely innocent. It was not until the 1970’s that North Carolina allowed no-fault divorce, but even then a 2-year separation period was required.

    GS 50-6 now allows divorce whenever spouses have lived separate and apart for one year. However, GS 50-10(a) still provides that “the material facts in every complaint asking for a divorce or an annulment are deemed denied by the defendant, whether the same shall be actually denied by pleading or not.” So we have no absolute divorce by default. That statute further provides that, except in those situations when a clerk of superior court is authorized to enter a divorce judgment pursuant to GS 50-10(e), “no judgment shall be given in favor of the plaintiff … until such facts are found by a judge or jury.”

    It is these provisions in GS 50-10 that require the five minute divorce trials I mentioned above and they are the reason we cannot enter divorce judgments by consent. The party seeking a divorce must testify to the material facts required for entry of divorce and, if the court finds the testimony credible, the divorce judgment is entered. The fact that defendant raises no objection or fails to appear at the trial makes no difference; the trial court must find facts to support the judgment and there must be evidence offered to support the findings of fact.

    Summary Judgment Divorce – Is it really summary judgment?

    In S.L. 1985-140, section (d) was added to GS 50-10 to provide that:

    “the provisions of GS 1A-1, Rule 56, shall be applicable to actions for absolute divorce pursuant to GS 50-6, for the purpose of determining whether any genuine issue of material fact remains for trial by jury, but in the event the court determines that no genuine issue of material fact remains for trial by jury, the court must find the facts as provided herein.”

    In S.L. 1991-568, the section was expanded to include the following:

    “The court may enter a judgment of absolute divorce pursuant to the procedures set forth in GS 1A-1, Rule 56, finding all requisite facts from nontestimonial evidence presented by affidavit, verified motion or other verified pleading.”

    Surprisingly, there is no appellate case law interpreting these provisions yet.

    These amendments authorized the use of Rule 56 summary judgment procedure, but it seems clear that the summary judgment allowed in a divorce case is not the same as a summary judgment granted in any other civil case. In a ‘normal’ summary judgment, the court enters judgment after concluding there are no issues of fact to be resolved and plaintiff is entitled to judgment as a matter of law. The judgment is entered without the court making findings of fact. See Caldwell v. Deese, 288 NC 375 (1975)(court is not authorized to make findings of fact or conclusions of law in a summary judgment). For summary judgment divorce, the court concludes only there are no facts to be found by a jury. The court still must find facts and conclude that entry of judgment is appropriate.

    The statute does allow the court to find the necessary facts without the presentation of actual testimony; facts can be found from the presentation of “nontestimonial evidence.” This means that the party seeking the divorce does not need to come to court to testify, but does this mean there is no trial? If the court must find facts based on nontestimonial evidence and make conclusions of law necessary to support the entry of divorce, isn’t this a trial? At the very least, it is a hearing.

    Rule 56 Summary Judgment

    Even if summary judgment divorce is the same as any other Rule 56 procedure, it is not at all clear that a summary judgment of any kind can be entered by a court in chambers, without an actual hearing scheduled to give all parties an opportunity to be heard in open court before the motion is granted or denied. While the propriety of summary judgment generally is determined based upon the court’s review of paper – the affidavits, pleadings, depositions, answers to interrogatories, and admissions of the parties, Rule 56 clearly indicates that a hearing is expected. See Rule 56(c)(“the motion [for summary judgment] shall be served at least 10 days before the time fixed for hearing.”). In Hensey v. Hennessy, 201 NC App 56 (2009), the court held that when a statute obviously anticipates a hearing, it is not appropriate for a judge or magistrate to enter an order or judgment after simply reviewing the pleadings.

    Hearings on the merits of a claim must be held in open court. GS 7A-191(trials on the merits must be held in open court); See Stancill v. Stancill, 773 SE2d 890(NC App 2015)(‘hearings’ on the merits of a claim are civil trials). Summary judgment clearly is a hearing on the merits of a claim.


    I understand why some districts are interested in conserving court time by not scheduling hearings in these cases, but I don’t believe the present law allows such a practice.

    What do others think?




    Cheryl Howell is a Professor of Public Law and Government at the School of Government specializing in family law.

    5 thoughts on “Does Summary Judgment Divorce Require a Hearing?”

    • Janet Wallace says:

      Save valuable court time, and handle ALL except contested cases by the clerk of superior court as is authorized pursuant to GS 50-10(e).

    • Scott N Dunn says:

      If a potential client comes in with an out of county divorce judgment, do we have a responsibility to explore the divorce file to make sure it was done correctly?
      If it was not done correctly, does that make the judgment void?

      • howell says:

        I think you should check to make sure any divorce was done correctly. I do not know if the court of appeals would say summary judgments entered without a hearing result in a void judgment. I certainly hope not. It seems to me that notice and opportunity to be heard is a right that can be waived by a defendant – meaning it is not a matter of subject matter jurisdiction. As long as the defendant has notice of the summary judgment procedure, the defendant can object to the lack of a hearing and can appeal if the hearing is not granted. That doesn’t mean it is alright to enter summary judgment without a hearing – I think that is a legal error. I just don’t believe it is a matter of subject matter jurisdiction or otherwise an error that leads to a void judgment.

    • Laticia Erwin Whitaker says:

      If I brought the suspicion that Spouse signed, dated and had the Divorce complaint notarized prior to the first legal day to do so to the attention of the Judge at the summary judgment hearing and respectfully requested that the Judge formally ask him to verify when he signed and the judge chose not to do so, is that correct. Should I be concerned at all????

      His attorney got up and of course denied it, but the Plaintiff was not asked. I was not attempting to prevent the divorce as I definitely wanted it, I just wanted it to be granted legally for numerous reasons, one being religious, I don’t want there to be any doubt as to whether I am married or not.

      In the divorce judgment, the Judge wrote in ” over defendants objection” the hearing was on July 25 and the judgment was handed up for signature, the Judge did not sign it then, he stated he wanted to write some things in. He signed it two days later on July 27th, and it seems odd that he took 2 days to write in 3 words.

    • Jim Davidson says:

      I do not understand why attorneys do not simply use the AOC form and allow clerks to do them by default.

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