Diggs v. Diggs
| Decision Date | 16 August 1994 |
| Docket Number | No. 935SC124,935SC124 |
| Citation | 446 S.E.2d 873,116 N.C.App. 95 |
| Parties | Brenda DIGGS v. Arthur DIGGS. |
| Court | North Carolina Court of Appeals |
Pennington & Wicks by Ralph S. Pennington and Ellen Arnold Kiernan, Wilmington, for respondent-appellant.
Smith & Smith by W.G. Smith and Walter M. Smith, Wilmington, for petitioner-appellee.
We face two questions in this case: I. If a separation agreement, incorporated into a divorce decree, bars an equitable distribution proceeding, does the superior court have jurisdiction to partition property included in the separation agreement? II. Assuming the answer to I is affirmative, did the petitioner waive her right to partition by entering into the agreement?
The facts are as follows. Petitioner and respondent were married on 26 March 1971. During the course of the marriage, they acquired the house in question, taking title as tenants by the entirety. Subsequently, petitioner and respondent separated and, on 5 March 1990, entered into a separation agreement (the Agreement) which provided that the respondent:
[S]hall continue to occupy the marital residence, located at 10 Ballard Drive, Prince George Estates, Castle Hayne, North Carolina. [Respondent] shall be responsible for making the mortgage payment while living in the marital home. Should this property be placed on the market for sale [respondent] and [petitioner] shall divide equally any proceeds from the sale.
On 19 March 1991, petitioner filed a complaint for absolute divorce, requesting that the Agreement be incorporated into the divorce decree and that the court exercise its jurisdiction and hold an equitable distribution proceeding at a later date. Respondent answered and moved for summary judgment on petitioner's claim for equitable distribution. Following a hearing on 9 August 1991, District Court Judge Jacqueline Morris-Goodson granted respondent's motion for summary judgment on the equitable distribution claim, dismissed that claim, and entered a judgment of absolute divorce, incorporating the Agreement.
Petitioner appealed the dismissal of her equitable distribution action to this Court. This Court held that the Agreement "reveals the parties' desire for a full and final disposition of their marital property which is binding on the Court," and affirmed the entry of summary judgment in respondent's favor. Diggs v. Diggs, 106 N.C.App. 394, 417 S.E.2d 854 (1992) (unpublished).
On 16 June 1992, petitioner filed a petition to partition the parties' marital home with the New Hanover County Clerk of Superior Court. Respondent filed his answer on 29 June 1992, and on 2 July 1992, filed a motion to dismiss, alleging that the superior court lacked subject matter jurisdiction to partition the property and that the Agreement precluded partition of the property. The clerk entered an order on 4 August 1992, denying respondent's motion to dismiss for lack of subject matter jurisdiction but also denying petitioner's petition, on the ground that petitioner had waived her right to partition in the Agreement. Petitioner appealed to the superior court.
The superior court judge held a hearing in the matter on 24 August 1992. On its own motion, the court converted the hearing to one on a motion for summary judgment. After arguments and evidence, the court denied respondent's motion to dismiss for lack of subject matter jurisdiction, found that the Agreement was not effective to waive petitioner's right to partition because it contained no limit on the time within which the waiver was to be effective, and granted summary judgment on petitioner's petition for partition.
Respondent argues that the superior court lacked subject matter jurisdiction to hold the partition proceeding because the district court has exclusive jurisdiction to enforce separation agreements. We disagree.
"A valid separation agreement that waives rights to equitable distribution will be honored by the courts and will be binding upon the parties." Hagler v. Hagler, 319 N.C. 287, 290, 354 S.E.2d 228, 232 (1987). "[I]n the absence of an equitable distribution of entireties property under N.C.G.S. § 50-20, an ex-spouse (now tenant in common) retains the right to possession and the right to alienate and may bring an action for waste, ejectment, accounting, or partition." Id. at 292, 354 S.E.2d at 233. In Hagler, the plaintiff-husband was granted summary judgment on the defendant-wife's request for an equitable distribution. The Supreme Court upheld the entry of summary judgment on the ground that a separation agreement signed by the parties evinced an intention to make a complete disposition of their respective property rights and barred a subsequent claim for equitable distribution.
In the prior appeal of this case, this Court held that the Agreement precluded petitioner from having a proceeding for equitable distribution. This is the law of the case. See N.C.N.B. v. Virginia Carolina Builders, 307 N.C. 563, 566, 299 S.E.2d 629, 631 (1983). Nonetheless, under Hagler, petitioner would be entitled to bring an action for partition of the house that she owns as a tenant in common with respondent. A co-tenant may only obtain partition "by petition to the superior court." N.C.Gen.Stat. § 46-3 (Supp.1993).
Respondent counters by citing the case Garrison v. Garrison, 90 N.C.App. 670, 369 S.E.2d 628 (1988), for the proposition that the superior court has no authority to partition marital property once the jurisdiction of the district court has been invoked by a request for equitable distribution. Garrison, however, is distinguishable.
In Garrison, the respondent-wife requested an equitable distribution in her answer to her husband's complaint for divorce. The trial court entered a judgment of divorce but left the equitable distribution proceeding pending. Subsequently, the petitioner-husband sought partition of the marital home. This Court held:
The superior court has no authority to partition marital property pursuant to the provisions of G.S. 46-1 et seq. where, as here, the jurisdiction of the district court has been properly invoked to equitably distribute such marital property. Had the parties not asserted their right to have the property equitably distributed pursuant to G.S. 50-20, either tenant in common could have filed a special proceeding to have the property partitioned as provided by G.S. 46-1 et seq.
Id. at 672, 369 S.E.2d at 629 (emphasis added). In the instant case, petitioner tried but failed to invoke the jurisdiction of the district court for equitable distribution of the parties' marital property. Therefore, under Hagler and...
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Diggs v. Diggs
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