North Carolina Absolute Divorce Lived Separate One Year Summons Served Personally Summary Judgment Lawyers Attorneys

WILLIAM LEE DUNEVANT, Plaintiff v. ELIZABETH ANN LEWIS DUNEVANT, Defendant

COURT OF APPEALS OF NORTH CAROLINA

September 14, 2000, Heard In the Court of Appeals

February 6, 2001, Filed

Plaintiff and defendant were married on or about 14 February 1979 in Danville, Virginia. No children were born of the marriage. On 29 July 1997, plaintiff filed a complaint for absolute divorce alleging that the parties had lived separate and apart since 3 May 1996. The complaint also asserted a claim for equitable distribution. Plaintiff had defendant personally served with the summons and a copy of the complaint on 1 August 1997. Defendant, however, filed no answer to the pleadings. On 4 September 1997, plaintiff moved for summary judgment as to the issue of absolute divorce. On 5 September 1997, plaintiff filed a "Notice of Motion. A copy of the notice was mailed to defendant. Defendant, nonetheless, did not receive the notice and failed to appear at the hearing. Pursuant to plaintiff's motion, the trial court entered a judgment of absolute divorce on 17 September 1997. Defendant received notification of the divorce decree and moved to set aside the judgment as void. On 14 May 1998, prior to a ruling on the motion, plaintiff died. On 3 February 1999, plaintiff's attorney moved to dismiss defendant's motion for lack of jurisdiction over the person of plaintiff. Defendant, in response, moved to substitute the administrator of plaintiff's estate as plaintiff in the proceeding and moved, once again, to set aside the divorce decree. The court allowed defendant's motion for substitution and concluded that the Divorce Judgment was irregular on its face due to deficiencies in the factual findings on the issues of one-year's separation and North Carolina residency. Consequently, the court set aside the divorce decree, declaring it to be null and void. From the order of the trial court, plaintiff, through his representative, filed timely notice of appeal.

Issue:

Whether the trial court erred in abrogating the divorce decree?

Discussion:

The Court finds that "a party may obtain relief from a final judgment pursuant to Rule 60(b)(4) of the Rules of Civil Procedure, if she can show that the judgment is void ab initio." Our courts have said that a divorce decree, in all respects regular on the face of the judgment roll, is at most voidable, not void. In light of the foregoing reasoning, this Court held that contrary to the court's conclusion, the divorce decree at issue in this case was in all respects regular on its face. Therefore, the court had no basis upon which to declare the divorce decree void. This is especially true, given that the court specifically found that Defendant was properly served in person with a Summons and the Divorce Complaint.

The Court further states that "the death of one of the parties to a divorce decree results in abatement of the cause of action." Abatement does not occur when the decree affects property rights, and matters touching the parties' property rights under the divorce decree are amenable to alteration or modification upon timely motion, or upon appeal. Here, the divorce decree . . . affected property rights of the parties, and upon timely motion the trial court had jurisdiction to amend, alter, or modify the decree. The trial court did not, however, have the jurisdiction to change the adjudged marital status of the parties. Further, the judgment of absolute divorce entered 17 September 1997 dealt exclusively with the parties' marital status. It in no way passed upon the issue of equitable distribution of the marital property. Defendant moved to set aside the judgment on 21 October 1997, but as fate would have it, plaintiff passed away on 14 May 1998, prior to a ruling on the motion. In view of our foregoing determination that the divorce decree was valid on its face, we hold that the proceeding to set aside the decree was abated upon plaintiff's death.

Conclusion:

Therefore, the trial court was without jurisdiction to vacate the divorce judgment and resurrect the parties' marriage. In sum, the order setting aside the 17 September 1997 divorce judgment is hereby vacated, and this matter is remanded to the District Court, Caswell County, for further appropriate proceedings consistent with this opinion.

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 Lived Separate One Year Summons Served Personally Summary Judgment Lawyers Attorneys

By: Atchuthan Sriskandarajah

POST COMMENT

North Carolina Divorce Equitable Distribution Divested Lawyers Attorneys North Carolina One Year Separation Divorce Incurable Mental Illness Lawyers Attorneys North Carolina Intent Absolute Divorce Separation Equitable Distribution Lawyers Attorneys North Carolina Absolute Divorce Property Equitable Distribution Separation Lawyers Attorneys North Carolina Criminal Habitual Driving Felon Reasonable Inference Alcohol Evidence Sufficiency Concealed Weapon Lawyers Attorneys North Carolina Criminal Impaired Driving Checkpoint Articulable Suspicion Constitutionally Permissible Lawyers Attorneys North Carolina Suppress Conclusions Checkpoint Remand Reverse Vacate Lawyers Attorneys Inventory Investing - How to Acquire In excess of The Counter Stocks and shares The Finest Spot to Commence Investing in Shares - Canada's Big 9 Financial institutions The Importance of Selecting the appropriate Divorce process Lawyer Your Guide To Retirement plan Preparing Car Wreck Lawyers – Do You Need One? Retirement Planning - Do Pensions Still Exist?