McIver v. McIver

374 S.E.2d 144, 92 N.C. App. 116, 1988 N.C. App. LEXIS 1031
CourtCourt of Appeals of North Carolina
DecidedDecember 6, 1988
Docket8822DC343
StatusPublished
Cited by19 cases

This text of 374 S.E.2d 144 (McIver v. McIver) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McIver v. McIver, 374 S.E.2d 144, 92 N.C. App. 116, 1988 N.C. App. LEXIS 1031 (N.C. Ct. App. 1988).

Opinion

BECTON, Judge.

This equitable distribution action is before our court a second time. Defendant, Gary Calvin Mclver, appeals an equitable distribution order awarding $17,091.50, representing a one-half interest in certain items deemed marital property, to the plaintiff, Frances Lee Nance Mclver. We reverse and remand the case.

I

A. Facts

The parties were married 19 April 1980. They began seeing each other in 1975, when each was still married to another person. In 1978, two years before they were married, Gary Mclver financed the purchase of a lakefront lot and mobile home, making a down payment with funds from the sale of a home owned by him and his first wife. The parties lived together at the lakefront home off and on until they were married.

*118 The record reveals no direct financial contribution by Frances Mclver toward purchase of the home during the period preceding their marriage. However, she performed housekeeping chores, helped with the upkeep of the property, and assisted in building a seawall along the shore. The parties continued to live at the lakefront home and made improvements to it after they were married and until their separation in December 1981.

B. Procedural History

Frances Mclver (“the wife”) brought the present action in May 1982 seeking alimony without divorce and an equitable distribution. Gary Mclver (“the husband”) subsequently filed a separate action for absolute divorce based on one year’s separation. The divorce was granted on 8 February 1983. The wife thereafter pursued her equitable distribution claim and, in September 1984, was awarded title to certain personal property and a one-half interest in the lakefront home.

The husband appealed the 1984 equitable distribution order to this court. We vacated that order on the ground that the trial judge failed to find as a fact that an absolute divorce judgment had been entered before the equitable distribution matter was decided.

The wife’s equitable distribution claim was heard again in district court. On 3 March 1988, the trial judge ordered the husband to pay the wife $17,091.50, representing “her one-half interest in the net value of the marital properties. . . .” From this order, the husband appeals.

C. Assignments of Error

The husband alleges that the trial judge erred by: (1) deciding the equitable distribution action in the first instance since, he argues, the court lacked jurisdiction to hear it; (2) considering the parties’ premarital relationship and premarital contribution to certain property when making the distribution; (3) improperly classifying certain property as marital; and (4) making erroneous or insufficient findings of fact and conclusions of law. We address these contentions in order.

*119 II

The husband first contends that certain provisions of the North Carolina Equitable Distribution Act invalidate the equitable distribution order entered in the present case. He maintains that the district court never had jurisdiction over the wife’s equitable distribution claim because a divorce action was not pending at the time she asserted the claim. He further argues that the wife was barred from obtaining a distribution of property because she did not raise anew her right to equitable distribution in the separate divorce action prior to entry of the divorce decree. We disagree.

A. “Vesting” of Right to Equitable Distribution

The husband relies heavily on the language in Section 50-20 (k) in making his argument. At all times relevant to this appeal, that section provided:

The rights of the parties to an equitable distribution of marital property are a species of common ownership, the rights of the respective parties vesting at the time of filing the divorce action.

N.C. Gen. Stat. Sec. 50-20(k) (Supp. 1981) (emphasis added).

He interprets this section to mean that the wife’s right to equitable distribution could not be asserted until a divorce action was filed. He argues that because she asserted her claim prior to the husband’s action for divorce, she stated no cause of action, and thus, the court lacked jurisdiction to enter an order of equitable distribution.

We interpret Section 50-20(k) differently. This section does not provide that the right to assert an equitable distribution claim is triggered by the filing of a divorce action. Nor does it provide that an equitable distribution claim is void if asserted prior to filing an action for divorce. Instead, we read this section to mean that the right to equitable distribution is an inchoate right exercisable only in a divorce action. Thus, for example, absent a consent judgment, the right to equitable property distribution cannot be effectuated during the one-year separation period that necessarily precedes a filing for absolute divorce; this does not mean that a claim for equitable distribution cannot be made *120 during that period. Our interpretation meshes with N.C. Gen. Stat. Secs. 50-21(a) and 50-ll(e), and with recent amendments to the statute, discussed below.

B. Sequence of Divorce and Equitable Distribution Judgments

The husband finds further support for his argument in his reading of Section 50-21(a). At all times relevant to this appeal, that section provided in part:

[1] Upon application of a party to an action for divorce, an equitable distribution of property shall follow a decree of absolute divorce. [2] A party may file a cross action for equitable distribution in a suit for an absolute divorce, or may file a separate action instituted for the purpose of securing an order of equitable distribution. ... [3] The equitable distribution may not precede a decree of absolute divorce. . . .

N.C. Gen. Stat. Sec. 50-21(a) (Supp. 1981) (emphasis added) (bracketed numerals added). The husband relies only on the first quoted sentence to conclude that one must be a party to an existing divorce action before an equitable distribution claim may be asserted. We reject his argument.

Nothing in this section mandates the precise time that application for equitable distribution must be made; it merely provides that the actual distribution of property must follow a divorce decree. We believe that the first sentence speaks only to the proper sequence of judgments when a party to a divorce action also asserts a claim for equitable distribution in the same action. Furthermore, the second quoted sentence makes it clear that alternative means of requesting equitable distribution exist, specifically permitting a party to assert the right in a separate action, as occurred in the case before us.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Kimball v. Kimball
Court of Appeals of North Carolina, 2026
Bailey v. Bailey
Court of Appeals of North Carolina, 2026
Costantino v. Costantino
Court of Appeals of North Carolina, 2025
Smith v. Smith
Court of Appeals of North Carolina, 2024
Richter v. Richter
Court of Appeals of North Carolina, 2020
Crago v. Crago
Court of Appeals of North Carolina, 2019
Clark v. Dyer
762 S.E.2d 838 (Court of Appeals of North Carolina, 2014)
Brackney v. Brackney
682 S.E.2d 401 (Court of Appeals of North Carolina, 2009)
Byrd v. Byrd
652 S.E.2d 751 (Court of Appeals of North Carolina, 2007)
Chambrello v. Chambrello, No. Fa 99-0080464s (Jun. 10, 2002)
2002 Conn. Super. Ct. 7291 (Connecticut Superior Court, 2002)
Glaspy v. Glaspy
545 S.E.2d 782 (Court of Appeals of North Carolina, 2001)
Caudill v. Caudill
509 S.E.2d 246 (Court of Appeals of North Carolina, 1998)
Conway v. Conway
508 S.E.2d 812 (Court of Appeals of North Carolina, 1998)
Wornom v. Wornom
485 S.E.2d 856 (Court of Appeals of North Carolina, 1997)
Burnett v. Burnett
471 S.E.2d 649 (Court of Appeals of North Carolina, 1996)
Stanley v. Stanley
454 S.E.2d 701 (Court of Appeals of North Carolina, 1995)
Surrette v. Surrette
442 S.E.2d 123 (Court of Appeals of North Carolina, 1994)
Ciobanu v. Ciobanu
409 S.E.2d 749 (Court of Appeals of North Carolina, 1991)

Cite This Page — Counsel Stack

Bluebook (online)
374 S.E.2d 144, 92 N.C. App. 116, 1988 N.C. App. LEXIS 1031, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mciver-v-mciver-ncctapp-1988.