North Carolina Separation Divorce Lived Separate Equitable Distribution Lawyers Attorneys

THOMAS B. BRUCE v. HARRIET B. BRUCE

COURT OF APPEALS OF NORTH CAROLINA

January 15, 1986, Heard in the Court of Appeals

March 4, 1986, Filed

Plaintiff and defendant were married on 17 December 1939 and separated 6 April 1973. A period of eleven years and approximately nine months elapsed between the date of separation and the filing of the complaint for absolute divorce.

During that time, plaintiff and defendant continuously lived separate and apart. On 25 January 1985 plaintiff husband filed a complaint for absolute divorce based on one year's separation, G.S. 50-6, and for equitable distribution of the marital properties. Defendant wife filed an answer and asserted as an affirmative defense the statute of limitations as a bar to plaintiff's action for absolute divorce. The trial judge granted plaintiff an absolute divorce and retained jurisdiction for purposes of equitable distribution under G.S. 50-20. Defendant appealed.

Issue:

Whether the ten year statute of limitations, G.S. 1-56, applies in an action for absolute divorce under G.S. 50-6?

The Court finds that under Chapter 50 of our General Statutes' governing divorce and alimony does not provide for a statute of limitations in an action for absolute divorce based on one year's separation. Nor is there a provision in the statutes of limitation, G.S. 1-14 through 1-56, expressly applicable to divorce actions. G.S. 50-6 requires that the husband and wife have lived separate and apart for one year, and that the plaintiff or defendant has resided in the State for a period of six months. However, these are jurisdictional requirements. The requirement, that parties live separate and apart for one year, apply to the year prior to institution of the suit. Likewise, the six months residency requirement means the six months next preceding commencement of the action.

Separation, as a ground for divorce, is a type of continuing offense. It begins on the date the parties physically separate with the requisite intention that the separation remains permanent and the cause of action under G.S. 50-6 accrues at the end of one year. However, the cause of action continues to accrue even after the one year period so long as the parties remain "separate and apart" within the meaning of the statute. G.S. 50-6 looks only at the year immediately preceding the filing of the complaint. We quote with approval Professor Lee's analysis of the application of G.S. 1-56 to an action for divorce. The court concluded that balancing the statute of limitations' purposes against the public policies of endeavoring to maintain the marital state and the policy against denying divorce to parties who demonstrated a ground for divorce showed that the general, residuary statute of limitations under N.C. Gen. Stat. 1-56 did not apply to actions for absolute divorce under N.C. Gen. Stat. 50-6. The court also held that N.C. Gen. Stat. 50-6 manifested the state's policy that the marriage was not viable or worth saving if the parties had lived separate and apart for one year. The court further found that, given the formal and clear expression of the legislature's will, the trial court was not at liberty to interpolate or to superimpose conditions and limitations that 50-6 itself did not contain.

Discussion:

For the reasons stated we affirm the trial court's granting an absolute divorce and retaining jurisdiction over the marital property for purposes of equitable distribution.

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 Separation Divorce Lived Separate Equitable Distribution Lawyers Attorneys

By: Atchuthan Sriskandarajah

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