Baer v. Baer

904 S.E.2d 815

Michael J. BAER, Plaintiff,

v.Melissa B. BAER, Defendant.

No. COA23-868

Court of Appeals of North Carolina.

Filed July 2, 2024

Appeal by plaintiff-appellant from judgment entered 8 June 2023 by Judge Mark Stevens in Wake County District Court. Heard in the Court of Appeals 1 May 2024. Wake County, No. 19CVD8313

Connell & Gelb PLLC, by Michelle D. Connell, for plaintiff-appellant.

Tharrington Smith, LLP, Raleigh, by Alice C. Stubbs, Jeffrey R. Russell, and Casey C. Fidler, for the defendant-appellee.

TYSON, Judge.

Michael J. Baer ("Husband") appeals from the trial court’s order finding Husband owed Melissa B. Baer ("Wife") a distribution of $587,069.23 pursuant to a separation agreement. Husband was also ordered to transfer title to the car Wife drove. All attorney’s fees claims were reserved for a later date. We reverse and remand.

I. Background

Husband and Wife married on 27 December 2014 for four years and officially separated on 19 February 2019 after Wife had filed for and was granted an ex parte domestic violence order of protection ("DVPO") against Husband in Wake County District Court. Husband alleges Wife has claimed similar types of purported abuse during a previous relationship. Husband was 43 years old when the parties married. No children were born of the marriage.

A. Husband’s allegations

Husband alleges he was "subjected to psychological, physical, financial, and emotional abuse at the hand of [Wife]" throughout the marriage "by intimidation and threats, withholding affection, giving the ‘silent treatment,’ insulting him in front of coworkers and friends, repeatedly belittling him, manipulating him, blaming him for her own self-harm, and accusing him of having affairs." Husband alleges Wife regularly abused drugs, overly consumed alcohol, and called him explicit derogatory names.

Wife had initially met with attorney Kristen Ruth ("Ruth") on 26 September 2018. On 20 December 2018, Wife left a notice and demand letter for Husband on the kitchen counter written by Ruth, dated 13 November 2018, which stated "that she [Ruth] had been retained by [Wife] ‘to represent her in anticipation of [the parties’] separation and divorce.’ " The letter stated Ruth had advised Wife to remain living within and occupying the marital home until a written settlement agreement was reached.

After receiving this letter during Christmas week, Husband alleges he asked Wife to spend the holidays with her family. Wife refused and requested they spend the holidays together. Husband’s affidavit avers Wife left notes for him on 21 December 2018 stating, "I LOVE YOU!!" and "THIS IS NOT WHAT I WANT!" Neither party acted on the 13 November 2018 letter from Ruth.

On 15 February 2019 between the hours of 7:07 p.m. and 7:15 p.m., Wife gave Husband a second demand letter from Ruth dated ten days earlier, on 5 February 2019, which stated Ruth "shall assume that you are not interested in sharing financial information in order to determine [Wife]’s financial share of the marital estate." The letter concluded by saying "if I do not hear from you by Friday, February 15, 2019[,] by 5:00 p.m. we will proceed accordingly."

Husband alleges Wife was drinking when she gave him the second demand letter. With the receipt of the letter after its response due date and time had expired, Husband was unable to respond timely or to retain an attorney. Husband called his parents two times that night "because [Wife] was ‘drinking alcohol and verbally abusing’ him," The parties discussed on 17 February 2019 whether they could proceed to a resolution without attorneys. Husband alleges Wife claimed, "she deserved half of what we had and [threatened] that she would ruin [his] life and career if [he] didn’t comply."

On 19 February 2019, Wife, again with Ruth’s assistance, filed a sworn and verified ex parte complaint and motion for a DVPO alleging Husband, among other things, had kicked and shoved her causing numerous bruises, had kicked her dog because he knows it hurts her, had put cameras in every room of their home without her knowledge, and had restricted her access to their finances.

Later that day and without prior notice, Husband was first served with an ex parte domestic violence protective order ("ex parte DVPO order") and escorted out of the marital home by law enforcement officers. Husband claims Wife’s sworn allegations were false and perjurious. He asserts she had filed the DVPO because he did not agree to give her half of his assets, and the DVPO was prepared and filed "with the intent to gain an unfair advantage in the separation process to gain an inequitable financial settlement."

Husband also claims, "[Wife] was aware that a DVPO would have dire consequences on [Husband]’s reputation and career." Husband filed an answer and a counter claim for a DVPO on 22 February 2019.

The ten-day hearing on the ex parte DVPO order was continued and scheduled for 13 March 2019. Prior to the hearing, parties participated in mediation with certified Mediator Katherine Frye on 6 March 2019.

Leading up to mediation, and out of fear of violating the ex parte DVPO order, Husband did not return to his office, because Wife’s father, Jim Bennett ("Bennett"), worked in the same office. Husband alleges Bennett was given the option to relocate immediately to another office in the community, but chose not to do so for over a month, preventing Husband from entering his own office. Husband asserts an internal investigation was initiated by his employer due to Wife’s false allegations of domestic violence.

Husband alleges his employer told him to "handle it" and the company could not have someone in a management role with a DVPO against them. Further, Husband asserts the DVPO would prevent him "from ever achieving General Partnership with the Firm which [he] had been working for 25 years to achieve." Husband alleges he was at risk of losing his job as a financial advisor depending on the outcome of the DVPO hearing. Husband alleges Wife was aware of the importance of reputation in his career and had discussed the impact this ex parte claim would have on his income.

Husband asserts Ruth and Husband’s attorney, Len Mueller, had agreed to a two- part mediation, in which the parties would first resolve the issues and allegations surrounding the DVPO, and thereafter negotiate a complete resolution to the separation. Husband alleges once in mediation Wife abandoned and reneged on their two-part agreement and was unwilling to resolve the DVPO unless a global resolution and settlement was reached.

Husband avers he had no choice, that he either had to agree to the one-sided terms or take chances at the DVPO hearing. He believed he would be fired from his job and suffer irreparable damages to his reputation and career if the ex parte DVPO hearing was not favorable to him.

B. Wife’s Allegations

Wife asserts Husband’s counsel drafted the Separation and Property Settlement Agreement ("Agreement") at the end of mediation in front of the mediator. Both parties initialed every page of the Agreement, and both parties’ signatures were notarized by the Mediator.

The terms of the Agreement include: (1) Husband must transfer a home to Wife; (2) Husband must satisfy the mortgage on Wife’s parents’ home; (3) Husband must pay off Wife’s vehicle; (4) Husband must pay Wife $100,000 immediately at mediation; and, (5) Husband must make two payments of $237,500 and transfer business interests to Wife. At mediation, Husband wrote Wife a check for $100,000 and deeded her the home per the Agreement.

The Agreement includes specific language relating to the voluntary execution of the Agreement. Paragraph 20 states: "Each party has read and fully understands each and every provision of the [A]greement, and both parties acknowledge that the Agreement is fair and is not the result of fraud, duress[,] or undue influence exercised by either party upon the other or by any other person or persons upon either."

On 7 March 2019, both parties filed voluntary dismissals of their claims for domestic violence. For months thereafter, both parties complied with the terms of the Agreement. After Husband filed his initial complaint and Wife filed her counterclaim, Husband stopped complying with the terms of the Agreement. By this time, Husband had performed many obligations under the Agreement, including transferring real property to Wife; paying off the loan to Wife’s vehicle; dismissing his counter claim for DVPO against Wife; continuing to provide Wife with medical, dental, and vison insurance; paying Wife $100,000 of the $575,000 distributive award payment; and filing a 2018 joint income tax return with Wife.

Husband alleges he only signed and complied with Agreement because Wife had threatened him, and he feared Wife would make more claims similar to those in the ex parte DVPO order.

Husband’s Affidavit asserts:

Just as was the case in the weeks leading up to mediation, during the weeks and months following mediation, I suffered high levels of stress, anxiety and pressure. The stress did not end with the signing of an [A]greement and dismissal of the DVPO. The DVPO started a domino effect that created stress, tension, and anxiety in all aspects of my life. My reputation with my employer was tarnished and in jeopardy. My relationships, career opportunities, family, and stability were all in jeopardy. After being subject to years of abuse in my marriage and now being subject to this abusive tactic, my emotional trauma was intensified. I struggled with sleeping, eating, and general everyday functioning. I felt as though my life was under a micro-scope[,] and I had to ensure that [Wife] remained satisfied so that she would not make false claims to my company.

C. Dr. Ludlam’s Affidavit

The affidavit of Dr. Julianne Ludlam ("Dr. Ludlam") was filed and presented during the summary judgment hearing. Dr. Ludlam holds a bachelor’s degree in psychology from Grinnell College, a master’s degree in human...