McIver v. McIver, 8522DC47
| Decision Date | 01 October 1985 |
| Docket Number | No. 8522DC47,8522DC47 |
| Citation | 77 N.C.App. 232,334 S.E.2d 454 |
| Court | North Carolina Court of Appeals |
| Parties | Frances Lee Nance McIVER v. Gary Calvin McIVER. |
William L. Durham, Winston-Salem, for defendant, appellant.
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.
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McIver v. McIver
...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 ......
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Caldwell v. Caldwell
...of the action, G.S. sec. 50-21(a), an equitable distribution of property shall follow a decree of absolute divorce. McIver v. McIver, 77 N.C.App. 232, 334 S.E.2d 454 (1985); McKenzie v. McKenzie, 75 N.C.App. 188, 330 S.E.2d 270 (1985). Plaintiff's death, therefore, rendered both the action ......