Trogdon v. Trogdon

Court of Appeals of North Carolina

Trogdon v. Trogdon

388 S.E.2d 212, 97 N.C. App. 330, 1990 N.C. App. LEXIS 59

CourtCourt of Appeals of North Carolina

DecidedFebruary 6, 1990

Docket8921DC95

StatusPublished

Cited by1 cases

This text of 388 S.E.2d 212 (Trogdon v. Trogdon) 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

Trogdon v. Trogdon, 388 S.E.2d 212, 97 N.C. App. 330, 1990 N.C. App. LEXIS 59 (N.C. Ct. App. 1990).

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Opinion

PHILLIPS, Judge.

Plaintiff sued for an absolute divorce; defendant counterclaimed for an order of equitable distribution but died before either claim could be adjudicated. The appeal is from the denial of the petition of the administrator of defendant’s estate to be allowed to substitute for the defendant in the action.

The appeal has no merit. Permitting the administrator of defendant’s estate to enter the case would avail nothing. The order of equitable distribution that defendant counterclaimed for cannot be obtained because he and plaintiff were not divorced as G.S. 50-21(a) requires, McKenzie v. McKenzie, 75 N.C. App. 188, 330 S.E.2d 270 (1985); and they can never be divorced since the marriage was dissolved by death. Caldwell v. Caldwell, 93 N.C. App. *331 740, 379 S.E.2d 271, disc. rev. denied, 325 N.C. 270, 384 S.E.2d 513 (1989).

Affirmed.

Judges Wells and Parker concur.

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PHILLIPS, Judge.

Plaintiff sued for an absolute divorce; defendant counterclaimed for an order of equitable distribution but died before either claim could be adjudicated. The appeal is from the denial of the petition of the administrator of defendant’s estate to be allowed to substitute for the defendant in the action.

The appeal has no merit. Permitting the administrator of defendant’s estate to enter the case would avail nothing. The order of equitable distribution that defendant counterclaimed for cannot be obtained because he and plaintiff were not divorced as G.S. 50-21(a) requires, McKenzie v. McKenzie, 75 N.C. App. 188, 330 S.E.2d 270 (1985); and they can never be divorced since the marriage was dissolved by death. Caldwell v. Caldwell, 93 N.C. App. *331 740, 379 S.E.2d 271, disc. rev. denied, 325 N.C. 270, 384 S.E.2d 513 (1989).

Affirmed.

Judges Wells and Parker concur.

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Bluebook (online)

388 S.E.2d 212, 97 N.C. App. 330, 1990 N.C. App. LEXIS 59, Counsel Stack Legal Research, https://law.counselstack.com/opinion/trogdon-v-trogdon-ncctapp-1990.

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