McIver v. McIver

334 S.E.2d 454, 77 N.C. App. 232, 1985 N.C. App. LEXIS 4040

Opinion

HEDRICK, Chief Judge.

Actions for equitable distribution are subject to the requirements of G.S. 50-21(a) which provides in relevant part that:

Upon application of a party to an action for divorce, an equitable distribution of property shall follow a decree of absolute divorce. . . . The equitable distribution may not precede a decree of absolute divorce. . . .

(Emphasis added.)

In McKenzie v. McKenzie, 75 N.C. App. 188, 330 S.E. 2d 270 (1985), this Court held that the trial judge had no authority to enter a judgment of equitable distribution when the record contained no indication that a judgment of absolute divorce had been entered. In the present case the court made no finding that a judgment of absolute divorce had been entered; indeed, the record before us contains no competent evidence that there was an absolute divorce. We hold that an order of equitable distribution must be supported by a finding of fact, based on competent evidence, that a judgment of absolute divorce has been entered by a court of competent jurisdiction. The judgment in the present case, purportedly an equitable distribution of the marital property, is not supported by this essential finding of fact. Because the critical finding that an absolute divorce had been granted is absent, this judgment must be vacated.

Vacated.

Judges Arnold and COZORT concur.