McIver v. McIver
| Decision Date | 06 December 1988 |
| Docket Number | No. 8822DC343,8822DC343 |
| Citation | 92 N.C.App. 116,374 S.E.2d 144 |
| Parties | Frances Lee Nance McIVER v. Gary Calvin McIVER. |
| Court | North Carolina Court of Appeals |
William L. Durham, Winston-Salem, for defendant-appellant.
This equitable distribution action is before our court a second time. Defendant, Gary Calvin McIver, 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 McIver. We reverse and remand the case.
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 McIver financed the purchase of a lakefront lot and mobile home, making a downpayment 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.
The record reveals no direct financial contribution by Frances McIver 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.
Frances McIver ("the wife") brought the present action in May 1982 seeking alimony without divorce and an equitable distribution. Gary McIver ("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. 77 N.C.App. 232, 334 S.E.2d 454.
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.
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.
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.
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 during that period. Our interpretation meshes with N.C.Gen.Stat.Secs. 50-21(a) and 50-11(e), and with recent amendments to the statute, discussed below.
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:
Upon application of a party to an action for divorce, an equitable distribution of property shall follow a decree of absolute divorce. 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.... 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. Finally, the third quoted sentence establishes a parallel rule for the sequence of divorce and equitable distribution judgments when the equitable distribution claim is asserted in a separate action.
Finally, the husband relies upon Section 50-11(e), which provided that:
An absolute divorce obtained within this State shall destroy the right of a spouse to an equitable distribution of the marital property under G.S. 50-20 unless the right is asserted prior to judgment of absolute divorce....
N.C.Gen.Stat.Sec. 50-11(e) (Supp.1981) (1987) (emphasis added). He argues that the right to equitable distribution was destroyed by the entry of the divorce decree because the wife failed to assert that right anew after he filed the divorce action.
The husband incorrectly assumes that the wife's claim for equitable distribution was of no effect because it was asserted before he filed the action for divorce. For the reasons above, we find that contention without merit. Furthermore, we accord great weight to the language, "... unless the right is asserted prior to judgment of absolute divorce." This section merely requires an equitable distribution claim to be asserted at any time prior to judgment, and does not prohibit a claim asserted before a divorce action is filed.
Our interpretation is consistent with recent amendments made to Sections 50-20(k) and 50-21(a). Section 50-11(e) was not amended.
Section 50-20(k) now provides that "[t]he rights of the parties to an equitable distribution of marital property ... [vest] at the time of the parties' separation." N.C.Gen.Stat.Sec. 50-20(k) (1987) (amended effective 1 October 1987) (emphasis added).
Section 50-21(a) now provides:
At any time after a husband and wife begin to live separate and apart from each other, a claim for equitable distribution may be filed, either as a separate civil action, or together with any other action brought pursuant to Chapter 50 of the General Statutes.... A judgment for an equitable distribution shall not be entered prior to entry of a decree of absolute divorce, except for a consent judgment, which may be entered at any time during the pendency of the action....
N.C.Gen.Stat.Sec. 50-21(a) (1987) (amended effective 1 October 1987) (emphasis added). See also Hearings on H.B. 1106 Before the N.C. House Judiciary III Committee (6 August 1987).
The amendments do not alter our analysis. We simply note that had the equitable distribution claim and divorce action been filed after the effective date of the amendments, the husband's argument would have been dismissed summarily.
We reject the husband's reading of the original version of the statutes and hold that the wife's claim for equitable distribution was valid and appropriate for determination by the district court judge.
The husband assigns as error the trial judge's consideration of the parties' premarital relationship in classifying and distributing property. He first asserts that the judge improperly considered fault in making the distribution. He next argues that contributions before the marriage toward acquisition of property should never be considered...
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