North Carolina Absolute Divorce Equitable Distribution Lawyers Attorneys
SYLVIA BENFIELD STEGALL v. ERNEST WILLIAM STEGALL
SUPREME COURT OF NORTH CAROLINA
December 6, 1993, Heard in the Supreme Court
June 17, 1994, Filed
On 13 March 1989 judgment of absolute divorce was granted in defendant's action. Thereafter, plaintiff on 8 October 1990 voluntarily dismissed her action pursuant to N.C.G.S. 1A-1, Rule 41(a)(1) but filed a new action asserting her claims for
alimony and equitable distribution on 18 February 1991 within the one-year period permitted under Rule 41(a)(1). Defendant moved under N.C.G.S. 1A-1, Rule 12(b)(6) to dismiss the action, and the trial court granted the motion. Plaintiff appealed and the Court of Appeals affirmed the dismissal. The Plaintiff appealed.
Issue:
Whether plaintiff's claims for alimony and equitable distribution, asserted in her new action filed pursuant to Rule 41(a)(1), were barred by the judgment of absolute divorce?
The Court finds that if an action commenced within the time prescribed therefor, or any claim therein, is dismissed without prejudice under this subsection, a new action based on the same claim may be commenced within one year after such dismissal unless a stipulation filed under (ii) of this subsection shall specify a shorter time. N.C.G.S. 1A-1, Rule 41(a)(1) (1990). Applying these principles, the Court of Appeals reasoned that the rights to equitable distribution and alimony are lost after
divorce, and this court reaffirms this general rule. Nevertheless, the court also explicitly recognized that Chapter 50 clearly contemplates the survival of those rights under certaincircumstances. N.C.G.S. 50-11(a) operates as an absolute bar to any claim for alimony which is not pending when judgment of divorce is entered, and Rule 41(a) has no effect on that bar. If alimony and equitable distribution claims are properly asserted by the filing of an action or a counterclaim and are not voluntarily dismissed pursuant to Rule 41(a)(1) until after a judgment of absolute divorce is entered, a new action based on those claims may be filed within the one-year period provided by Rule 41(a)(1). Therefore, where plaintiff wife's claims for
alimony and equitable distribution were pending at the time an absolute divorce was granted in defendant husband's action, and plaintiff thereafter voluntarily dismissed those claims pursuant to Rule 41(a)(1), plaintiff could properly re-file those claims within one year of the voluntary dismissal.
Conclusion:
This Court agrees with plaintiff's contention that the claims were not barred and reverse the decision of the Court of Appeals.
Disclaimer:
These summaries are provided by the SRIS Law Group. They represent the firm's unofficial views of the Justices' opinions. The original opinions should be consulted for their authoritative content
North Carolina Absolute Divorce Equitable Distribution Lawyers Attorneys
By: Atchuthan Sriskandarajah
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