In Brincefield v. Brincefield, the North Carolina Court of Appeals held that a trial court abused its discretion by refusing to set aside an equitable-distribution order entered without evidence that the husband received notice of the hearing.

The husband did not attend the November 2024 hearing at which the trial court awarded the marital residence to the wife and ordered her to pay him $15,000. He later sought relief under Rule 60(b)(6), asserting that he had not received notice.

Rule 60(b)(6) permits relief for “any other reason justifying relief from the operation of the judgment.” A movant must show extraordinary circumstances and that justice demands relief. Here, the appellate court concluded that the requirements of procedural due process—notice and an opportunity to be heard—made relief necessary.

The trial court had denied the motion because it believed that the court would have mailed a continuance order and no mail had been returned as undeliverable. But that belief was unsupported by the record. There was no continuance order, hearing notice, certificate of service, or proof identifying who mailed notice. Rules 5(d) and 6(d) require hearing notices to be served and filed, yet the court file contained none of the documentation that should have existed.

The Court of Appeals rejected the effect of shifting the burden to the husband to prove a negative—that notice had not been sent. Before denying relief, the trial court should have determined what steps were taken to provide notice or otherwise verified service.

Constructive notice did not cure the problem. Unlike cases in which an absent party knew a matter had been continued and had a duty to inquire, the husband denied knowing about either relevant hearing, and nothing in the record contradicted him. Other procedural safeguards were also missing, including equitable-distribution affidavits and a pretrial order.

Because the ruling rested solely on assumption rather than evidence, the appellate court deemed it manifestly unsupported by reason. It reversed and remanded, protecting the husband’s constitutional right to be heard before being deprived of an interest in property.

Guy Vitetta, Charleston