Entry of Default, Specific Performance, COA18-478, Jones v. Jones, Feb. 5, 2019, Lee County
This matter was originally appealed in action COA14-507. After certifying this Court’s decision to the district court, Plaintiff filed a motion for entry of default, and a default judgment was entered on the same day. Defendant filed a motion to set aside entry of default more than one month later. The trial court ultimately denied Defendant’s motion to set aside entry of default. Defendant appeals from the trial court’s order denying his motion to set aside entry of default and ordering specific performance. Because the trial court’s findings were supported by the record, and the trial court did not abuse its discretion, the Court of Appeals affirmed the entry of default and order for specific performance.
The facts of each individual case are crucial to a consideration of a motion to set aside entry of default. The Court determined that Defendant did not vigorously pursue the litigation after the time of the Court of Appeals’ initial decision in this case.
With regard to the specific performance argument, the parties’ agreed via Separation Agreement that Defendant’s alimony obligation would reduce by $1,444.00 per month (amount of the mortgage payment which existed at the date of separation) upon payment in full of the mortgage account encumbering Plaintiff’s home. Prior to payment in full, Plaintiff refinanced the mortgage, paying the initial mortgage account in full and reducing her monthly payment. At this time, Defendant reduced his monthly alimony payment by $1,444.00 per month. Plaintiff filed an action for specific performance seeking to have Defendant continue paying the increased alimony payments despite her refinance. The trial court granted specific performance, ordered Defendant to pay arrears and ordered Defendant to continue paying the unreduced alimony payments until such time as the original mortgage would have been paid in full under the original promissory note and deed of trust. The majority opinion holds that the trial court did not abuse its discretion in ordering specific performance to achieve the intent of the parties.
Judge John Tyson concurred in part, concurred in the result in part and dissented in part.
https://ncbarblog.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.png00FamilyLawhttps://ncbarblog.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.pngFamilyLaw2019-04-03 15:09:202019-04-03 15:09:20NC COA: Entry of Default & Specific Performance, Jones v. Jones