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NO. COA12-284 NORTH CAROLINA COURT OF APPEALS Filed: BRIAN Z. FRANCE, Plaintiff, v. MEGAN P. FRANCE, Defendant. Mecklenburg County No. 08 CVD 20661 31 December 2012

Appeal by Plaintiff from order entered 18 December 2009 by Judge Jena P. Culler in Mecklenburg County Superior Court.

Heard in the Court of Appeals 25 September 2012. Horack Talley Pharr & Lowndes, P.A., by Kary C. Watson and Gena Graham Morris, and Alston & Bird, LLP, by John E. Stephenson, Jr. Davis Harwell & Biggs, P.A., by Loretta C. Biggs and Joslin Davis, and Robinson, Bradshaw & Hinson, P.A., by Martin L. Brackett, Jr. Higgins & Owens, PLLC, by Raymond E. Owens, Jr., for the Charlotte Observer and WCNC, amicus curiae. THIGPEN, Judge. Brian France ("Plaintiff") appeals from an order unsealing documents associated with the actions in this case. We find no

abuse of discretion in the order of the trial court, which finds and concludes there has been a substantial change in

-2circumstances. court. I. The evidence of record Facts tends to show the following: Therefore, we affirm the order of the trial

Plaintiff and Megan France ("Defendant") have been married to each other twice. Each marriage lasted approximately two years.

Prior to their second marriage, on 27 December 2007, Plaintiff and Defendant entered into a prenuptial agreement ("the which

Agreement"), replacing an earlier prenuptial agreement,

provided financial benefits to Defendant in consideration for which Defendant agreed to abide by the terms of the Agreement. The Agreement contained the following confidentiality provision: Plaintiff and Defendant agreed that "neither party [would] disclose any financial information relating to the other party or any provision of th[e] Agreement to anyone except" certain professionals, such as their attorneys and financial advisors, unless compelled by law. Plaintiff and Defendant further agreed to keep private certain personal information regarding each other "unless either party is legally compelled to disclose any such information[.]" The Agreement stated that breach of the confidentiality provision would constitute a material breach. In the final paragraph of the confidentiality clause, Plaintiff and Defendant agreed that if either of them institutes or responds to litigation that relates to and requires disclosure

-3of any of the terms of th[e] Agreement, [Plaintiff and Defendant] agree to use their best efforts so that any reference to the terms of th[e] Agreement and the Agreement itself will be filed under seal, with prior notice to the other party. France v. France, 209 N.C. App. 406, 407-08, 705 S.E.2d 399, 402 (2011) (alterations in original). On 11 September 2008, Plaintiff filed a complaint (File No. 08 CVD 20661), alleging Defendant had breached the Agreement and seeking an order amended directing complaint, the clerk of court had to not seal yet

Plaintiff's

which

Plaintiff

filed, and any future documents filed in the action.

The trial

court, Judge N. Todd Owens ("Judge Owens") presiding, granted Plaintiff's motion to seal the documents associated with the case in File No. 08 CVD 20661 and issued an order on 18 December 2008, which provided the following rationale for the trial

court's ruling: 2. There is a compelling countervailing public interest in protecting the privacy of the parties as relates to the provisions of the Agreement concerning their young children and their financial affairs, and in avoiding damage or harm to the parties, their business interests, and their children which could result from public access to such provisions of the Agreement. 3. There is a compelling countervailing

-4public interest in protecting the sanctity of contracts such as the Agreement, where people bargain for and agree upon a mechanism to resolve future disputes in a confidential manner and other contract terms which are not contrary to law, and where each party relies on the other party to perform his or her obligations under the contract. 4. The aforesaid countervailing public interests in paragraphs 2 and 3 above outweigh the public's interest in access to the documents filed in this court proceeding and in future proceedings between the parties concerning the Agreement. 5. The Court has considered whether there are alternatives to sealing the court files in order to protect the public interests referred to in paragraphs 2 and 3 above, and finds there are no such alternatives. Based on the foregoing, the trial court concluded: The Clerk of Superior Court shall seal the pleadings and other documents [and] [t]he Clerk . . . is directed to file under seal any pleadings and documents filed in any subsequent actions between the parties related to the Agreement [and all such pleadings, documents, and orders] may be unsealed only by further order of the [c]ourt, after reasonable notice to the parties. In the order, Judge Owens also provided the following

specifications: Once sealed, such pleadings and documents shall be accessible only to the District Court, any appellate court, the parties, attorneys for the parties and paralegals and

-5other staff members of such attorney, and may be unsealed only by further order of the Court, after reasonable notice to the 1 parties. On 31 December 2008, Plaintiff filed, under seal, the

amended complaint with a different file number, File No. 08 CVS 28389. Agreement The and amended complaint how set forth the terms those of the

specified

Defendant

breached

terms.

Therefore, the amended complaint necessarily disclosed the terms of the Agreement and hypothetically may have constituted a

breach of the confidentiality provision in the Agreement, but for the fact that the amended complaint was filed under seal. The parties filed a series of discovery and substantive motions in the action under File No. 08 CVS 28389. On 29

September 2009, in anticipation of hearings on the foregoing motions, court Plaintiff filed a to motion the requesting public. that the trial joined

close

proceedings

Defendant

Plaintiff in the motion to close proceedings. Judge Jena P. Culler ("Judge Culler")

The trial court, heard the

presiding,

foregoing motion to close proceedings, along with several other motions, on 15 October 2009, after which Judge Culler denied the

1

Judge Owens' 18 December 2008 order was not included in the record on appeal; however, we have extracted the above excerpts from Judge Owens' order as they were recited in Judge Culler's subsequent orders.

-6motion to close proceedings. Judge Culler entered a written

order on 13 November 2009 concluding that "[p]roceedings in this case shall be conducted in open court" and providing the

following rationale for the decision: Although both parties affirmatively sought the relief of closing the court proceedings in this litigation, there are no compelling countervailing public interests as related to these parties which outweigh the public's right and access to open court proceedings. Plaintiff appealed Judge Culler's 13 November 2009 order.

Plaintiff also moved in open court for a stay, which was denied. Plaintiff filed notice of appeal from this order. On Company 17 and November WCNC-TV, 2009, Inc. The Charlotte Observer filed Publishing a motion

("Media

Movants")

requesting that Judge Culler (1) "[o]rder [that] the courtroom remain open to the public and press in both 08 CVD 20661 and 08 CVD 28389" and (2) order that "the records and court files in both [actions] be unsealed[.]" Judge Culler heard Media

Movant's motion on 11 December 2009.

In an order filed 18

December 2009, Judge Culler acknowledged both Judge Owens' order

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