equitable distribution claim in North Carolina

2023See Bradford, 279 N.C. App. at 121, 864 S.E.2d at 792 (concluding that a wife’s motion in the cause asserting a claim for equitable distribution in her husband’s absolute divorce action was proper); see also, e.g., Coleman v. Coleman, 182 N.C. App. 25, 29 , 641 S.E.2d 332, 336 (2007) (concluding that a wife’s “ ‘request’ for ‘equitable distribution’ [in her counterclaim] was sufficient to put [her husband] on notice that [the wife] was asking the court to equitably distribute the parties’ marital and divisible property”); Hunt v. Hunt, 117 N.C. App. 280, 283 , 450 S.E.2d 558, 561 (1994) (concl

2023See Bradford, 279 N.C. App. at 121, 864 S.E.2d at 792 (concluding that a wife’s motion in the cause asserting a claim for equitable distribution in her husband’s absolute divorce action was proper); see also, e.g., Coleman v. Coleman, 182 N.C. App. 25, 29 , 641 S.E.2d 332, 336 (2007) (concluding that a wife’s “ ‘request’ for ‘equitable distribution’ [in her counterclaim] was sufficient to put [her husband] on notice that [the wife] was asking the court to equitably distribute the parties’ marital and divisible property”); Hunt v. Hunt, 117 N.C. App. 280, 283 , 450 S.E.2d 558, 561 (1994) (concl

2021Specifically, Husband argues that “no statutory authority exists that authorizes the re-initiation of a previously dismissed civil action by motion in the cause[.]” At least to the extent that Wife sought to re- commence the equitable distribution claim by a motion in the previously dismissed civil action, we agree. ¶ 15 As a general rule, the effect of a voluntary dismissal without prejudice under Rule 41(a)(1) is “to terminate the action, and no suit is pending thereafter on which the court can enter a valid order.” Collins v. Collins, 18 N.C. App. 45, 50 , 196 S.E.2d 282, 286 (1973).

2021Specifically, Husband argues that “no statutory authority exists that authorizes the re-initiation of a previously dismissed civil action by motion in the cause[.]” At least to the extent that Wife sought to re- commence the equitable distribution claim by a motion in the previously dismissed civil action, we agree. ¶ 15 As a general rule, the effect of a voluntary dismissal without prejudice under Rule 41(a)(1) is “to terminate the action, and no suit is pending thereafter on which the court can enter a valid order.” Collins v. Collins, 18 N.C. App. 45, 50 , 196 S.E.2d 282, 286 (1973).

2021Id. ¶ 26 The trial court granted the motion to dismiss because the motion raising the equitable distribution claim was “not timely filed, and [is] therefore barred as a matter of law.” Id. at 434 , 614 S.E.2d at 439 .

2021Id. ¶ 26 The trial court granted the motion to dismiss because the motion raising the equitable distribution claim was “not timely filed, and [is] therefore barred as a matter of law.” Id. at 434 , 614 S.E.2d at 439 .

2026Nor did the court dispose of the motion either during or after the equitable distribution hearing.” 387 N.C. at 260, 912 S.E.2d at 766 (emphasis added).

2026Nor did the court dispose of the motion either during or after the equitable distribution hearing.” 387 N.C. at 260, 912 S.E.2d at 766 (emphasis added).

2023See Bradford, 279 N.C. App. at 121, 864 S.E.2d at 792 (concluding that a wife’s motion in the cause asserting a claim for equitable distribution in her husband’s absolute divorce action was proper); see also, e.g., Coleman v. Coleman, 182 N.C. App. 25, 29 , 641 S.E.2d 332, 336 (2007) (concluding that a wife’s “ ‘request’ for ‘equitable distribution’ [in her counterclaim] was sufficient to put [her husband] on notice that [the wife] was asking the court to equitably distribute the parties’ marital and divisible property”); Hunt v. Hunt, 117 N.C. App. 280, 283 , 450 S.E.2d 558, 561 (1994) (concl

2023See Bradford, 279 N.C. App. at 121, 864 S.E.2d at 792 (concluding that a wife’s motion in the cause asserting a claim for equitable distribution in her husband’s absolute divorce action was proper); see also, e.g., Coleman v. Coleman, 182 N.C. App. 25, 29 , 641 S.E.2d 332, 336 (2007) (concluding that a wife’s “ ‘request’ for ‘equitable distribution’ [in her counterclaim] was sufficient to put [her husband] on notice that [the wife] was asking the court to equitably distribute the parties’ marital and divisible property”); Hunt v. Hunt, 117 N.C. App. 280, 283 , 450 S.E.2d 558, 561 (1994) (concl

2022See Miller, 218 N.C. at 150 , 10 S.E.2d at 711 .

2022See Miller, 218 N.C. at 150 , 10 S.E.2d at 711 .

2020See, e.g., Atkinson v. Atkinson, 350 N.C. 590, 590 , 516 S.E.2d 381, 381 (1999) (per curiam).

2020See, e.g., Atkinson v. Atkinson, 350 N.C. 590, 590 , 516 S.E.2d 381, 381 (1999) (per curiam).

2014App. at 672 , 369 S.E.2d at 629 (partition action to divide marital home improperly brought in superior court where the marital home was already part of a pending equitable distribution claim); Hudson, 145 N.C.

2010See Garrison, 90 N.C.App. at 670 , 369 S.E.2d at 628 (partition action to divide marital home improperly brought in superior court where the marital home was already part of a pending equitable distribution claim); Hudson, 145 N.C.App. at 631 , 550 S.E.2d at 571 (declaratory action brought in superior court by third parties concerning ownership of real property that was the subject of a prior equitable distribution action in district court held properly dismissed); cf. McKoy v. McKoy, ___ N.C.App. ___, 689 S.E.2d 590 (2010) (where the clerk of superior court previously obtained jurisdiction ov

2014App. at 672 , 369 S.E.2d at 629 (partition action to divide marital home improperly brought in superior court where the marital home was already part of a pending equitable distribution claim); Hudson, 145 N.C.

2010See Garrison, 90 N.C.App. at 670 , 369 S.E.2d at 628 (partition action to divide marital home improperly brought in superior court where the marital home was already part of a pending equitable distribution claim); Hudson, 145 N.C.App. at 631 , 550 S.E.2d at 571 (declaratory action brought in superior court by third parties concerning ownership of real property that was the subject of a prior equitable distribution action in district court held properly dismissed); cf. McKoy v. McKoy, ___ N.C.App. ___, 689 S.E.2d 590 (2010) (where the clerk of superior court previously obtained jurisdiction ov

2006App. 260, 262 , 432 S.E.2d 176, 177 (1993) (“the fact that both parties participated in the equitable distribution hearing does not save plaintiff.

2003App. 260, 262 , 432 S.E.2d 176, 177 (1993) (“the fact that both parties participated in the equitable distribution hearing does not save plaintiff.

2019Brewer v. Nelson , 179 N.C.

2019Brewer v. Nelson, 179 N.C. App. 166, 170-71 , 633 S.E.2d 124, 128 (2006) (emphasis added); see also Stann v. Levine, 180 N.C. App. 1, 12 , 636 S.E.2d 214, 221 (2006) (agreeing with Nelson).

1994Armstrong v. Armstrong, 322 N.C. 396 , 368 S.E.2d 595 (1988).

1994Armstrong v. Armstrong, 322 N.C. 396 , 368 S.E.2d 595 (1988).

2026Without evidence that any of the requirements of Rule 5 or Rule 6 were met or evidence that Defendant had actual notice of the equitable distribution hearing, we cannot say Defendant’s “right to due process and notice of the proceedings was not violated.” Cf. Venters, 184 N.C. App. at 238 , 645 S.E.2d at 845 (finding that “[e]ach and every pleading, order, notice of hearing, and discovery request was filed with the Clerk of Court and service was properly attempted upon defendant.

2026Without evidence that any of the requirements of Rule 5 or Rule 6 were met or evidence that Defendant had actual notice of the equitable distribution hearing, we cannot say Defendant’s “right to due process and notice of the proceedings was not violated.” Cf. Venters, 184 N.C. App. at 238 , 645 S.E.2d at 845 (finding that “[e]ach and every pleading, order, notice of hearing, and discovery request was filed with the Clerk of Court and service was properly attempted upon defendant.

2026Hagler v. Hagler, 319 N.C. 287, 295 , 354 S.E.2d 228, 234-35 (1987).

2026Hagler v. Hagler, 319 N.C. 287, 295 , 354 S.E.2d 228, 234-35 (1987).

2022See Standridge v. Standridge, 259 N.C. App. 834 , 836- 38, 817 S.E.2d 463, 465-66 (2018) (vacating an order for equitable distribution because both parties raised a claim for equitable distribution prior to the date of separation). ¶ 25 The same test employed to determine the date of separation in divorce proceedings applies in the equitable distribution context.

2022See Standridge v. Standridge, 259 N.C. App. 834 , 836- 38, 817 S.E.2d 463, 465-66 (2018) (vacating an order for equitable distribution because both parties raised a claim for equitable distribution prior to the date of separation). ¶ 25 The same test employed to determine the date of separation in divorce proceedings applies in the equitable distribution context.

2022See Standridge, 259 N.C. App. at 836 , 817 S.E.2d at 465 (“Where a claim for equitable distribution is filed prior to the date of separation, the trial court does not have subject matter jurisdiction over the claim.”) (citing Atkinson v. Atkinson, 132 N.C. App. 82, 90 , 510 S.E.2d 178, 182 (1999) (J.

2022See Standridge, 259 N.C. App. at 836 , 817 S.E.2d at 465 (“Where a claim for equitable distribution is filed prior to the date of separation, the trial court does not have subject matter jurisdiction over the claim.”) (citing Atkinson v. Atkinson, 132 N.C. App. 82, 90 , 510 S.E.2d 178, 182 (1999) (J.

2019Brewer v. Nelson, 179 N.C. App. 166, 170-71 , 633 S.E.2d 124, 128 (2006) (emphasis added); see also Stann v. Levine, 180 N.C. App. 1, 12 , 636 S.E.2d 214, 221 (2006) (agreeing with Nelson).

2019Brewer v. Nelson, 179 N.C. App. 166, 170-71 , 633 S.E.2d 124, 128 (2006) (emphasis added); see also Stann v. Levine, 180 N.C. App. 1, 12 , 636 S.E.2d 214, 221 (2006) (agreeing with Nelson).

2016See Patterson v. Patterson, 81 N.C.App. 255 , 262, 343 S.E.2d 595 , 600 (1986) ("Additionally, attorneys' fees are not recoverable in an action for equitable distribution so that, in a combined action, the fees awarded must be attributable to work by the *24 attorneys on the divorce, alimony and child support actions.") In this case, although plaintiff had initially brought a claim for alimony, at the time of trial she had abandoned this claim, and in any event, the attorney fees as awarded in the order were clearly based upon the equitable distribution claim only.

2016See Patterson v. Patterson, 81 N.C.App. 255 , 262, 343 S.E.2d 595 , 600 (1986) ("Additionally, attorneys' fees are not recoverable in an action for equitable distribution so that, in a combined action, the fees awarded must be attributable to work by the *24 attorneys on the divorce, alimony and child support actions.") In this case, although plaintiff had initially brought a claim for alimony, at the time of trial she had abandoned this claim, and in any event, the attorney fees as awarded in the order were clearly based upon the equitable distribution claim only.