Kolendo v. Kolendo, 36 N.C. App. 385 (1978)

May 16, 1978 · North Carolina Court of Appeals · No. 7728SC507

36 N.C. App. 385

JOSEPH KOLENDO v. MICHAEL KOLENDO and MADELINE KOLENDO

No. 7728SC507

(Filed 16 May 1978)

Rules of Civil Procedure § 52— no request for findings of fact — presumption on appeal

If no request is made by the parties to a hearing on a motion, the trial judge is not required to find the facts upon which he bases his ruling, and in such case it will be presumed that the judge, upon proper evidence, found facts sufficient to support his judgment. G.S. 1A-1, Rule 52(a).

APPEAL by movants Michael and Madeline Kolendo from Ervin, Judge. Order entered 10 December 1976 in Superior Court, BUNCOMBE County. Heard in the Court of Appeals 30 March 1978.

This is an appeal from an order denying defendants’ motion made pursuant to G.S. 1A-1, Rule 60(b)(3) to be relieved from a judgment entered on 8 September 1975 in Superior Court in Buncombe County, North Carolina. Defendants alleged as grounds for their motion that Joseph Kolendo, plaintiff in the original action, had testified falsely at trial and that his testimony “constitute^] fraud upon this court.” At the hearing on the motion, the defendants introduced into evidence transcripts of the trial of the original action in Buncombe County and a previous trial between the same parties held on 31 August 1976 in the Circuit Court of Palm Beach, Florida, which allegedly reflect significant discrepancies in the plaintiff’s testimony as to the terms of an agreement between the parties.

After the hearing, the trial court in the exercise of its discretion denied the defendants’ motion. Defendants appealed.

Adams, Hendon & Carson, by George Ward Hendon, for the plaintiff appellee.

Whalen and Hay, by Edward C. Hay, Jr., for defendant appellants.

HEDRICK, Judge.

A motion made pursuant to Rule 60(b) of the North Carolina Rules of Civil Procedure, G.S. 1A-1, is addressed to the discretion of the trial court. Sink v. Easter, 288 N.C. 183, 217 S.E. 2d 532 (1975). The decision of the trial court is not reviewable on appeal absent a showing of abuse of discretion. Sink v. Easter, supra.

In the present case neither party requested the judge to make findings of fact, and consequently, none were made. According to G.S. 1A-1, Rule 52(a), if no request is made by the parties to a hearing on a motion, then the trial judge is not required to find the facts upon which he bases his ruling. And “[i]n such case, it will be presumed that the judge, upon proper evidence, found facts sufficient to support his judgment.” Haiduven v. Cooper, 23 N.C. App. 67, 69, 208 S.E. 2d 223, 225 (1974). Thus, when no findings are made there is nothing for the appellate court to review. Holcomb v. Holcomb, 192 N.C. 504, 135 S.E. 287 (1926).

Affirmed.

Chief Judge BROCK and Judge MITCHELL concur.