Terry v. Terry is an unpublished 2019 appeal from the Court of Appeals. The parties’ 1996 divorce decree reserved issues of alimony and equitable distribution. In 2016 ex-wife filed an action seeking a portion of ex-husband’s military retirement. Ex-husband filed a motion to dismiss on the basis of laches.
At the family court hearing on ex-husband’s motion to dismiss, the court took no testimony (neither party even submitted an affidavit). Based solely on argument of counsel, the family court found laches and dismissed the case. Ex-wife then hired me to file a motion to reconsider, which the family court denied.
On appeal ex-wife argued that the family court could not find laches without an evidentiary hearing. The Court of Appeals initially affirmed the family court, claiming ex-wife had failed to provide the Court with a sufficient record as the record on appeal did not include the briefs the family court gave the parties’ leave to submit. We filed a petition for rehearing, arguing that such briefs did not exist. After ex-husband’s attorney confirmed that no briefs had been submitted, the Court of Appeals reversed and remanded to the family court for an evidentiary hearing on laches, noting “that statements of fact appearing only in argument of counsel will not be considered.”
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