Bradford v. Bradford

864 S.E.2d 783

Cody Lynn BRADFORD, Plaintiff,

v.Jennifer BRADFORD, Defendant.

Nos. COA20-358

20-377

Court of Appeals of North Carolina.

Filed September 7, 2021

Law Offices of Jamie A. Stokes, PLLC, by Jamie A. Stokes, for plaintiff-appellee.

Donald H. Barton, Brevard, for defendant-appellant.

STROUD, Chief Judge.

¶ 1 Jennifer Bradford ("Wife") appeals from an order dismissing her two separate motions in the cause for equitable distribution in two separate cases. Wife appealed the dismissal of each equitable distribution claim asserted in the two cases separately. The trial court entered one order addressing both motions to dismiss in the two separate actions, and we have consolidated these appeals pursuant to North Carolina Appellate Rule 40. See N.C. R. App. P. 40.

¶ 2 In File No. 18 CVD 201, we hold the trial court properly dismissed Wife's equitable distribution claim because when Wife filed the motion in the cause, all pending claims had been fully resolved or dismissed by the parties and the effect of her prior voluntary dismissal of her equitable distribution claim without prejudice under Rule 41(a)(1) was "to terminate the action." In File No. 19 CVD 224, we hold the trial court erred in dismissing Wife's equitable distribution claim because Wife asserted her equitable distribution claim by a motion in the cause filed before entry of the absolute divorce judgment. As a result, we affirm in part and reverse and remand in part the trial court's order.

I. Background

¶ 3 Husband and Wife married 1 April 2011, had one child in 2015, and separated 26 September 2018. On 27 September 2018, Husband filed a complaint in File No. 18 CVD 201 for ex parte temporary and permanent custody, and the trial court awarded him immediate sole legal and physical custody of the child. On 22 October 2018, Wife filed an answer and counterclaims for divorce from bed and board, child custody, child support, equitable distribution, post separation support, alimony, and attorney's fees. Subsequently, Husband and Wife each filed equitable distribution inventory affidavits. On 25 April 2019, the trial court entered a permanent child custody order.

¶ 4 A hearing on Wife's equitable distribution counterclaim was calendared for 17 December 2019. Wife took a voluntary dismissal with prejudice of all of her counterclaims — except her claim for equitable distribution — on 1 October 2019.

¶ 5 On 11 October 2019, Husband filed a complaint for absolute divorce in File No. 19 CVD 224. In the complaint, Husband asked "that the equitable distribution claim in Yancey County File No. 18CVD201 be severed and preserved." A hearing on the absolute divorce claim in File No. 19 CVD 224 was calendared for 27 January 2020.

¶ 6 The trial court entered a final pre-trial order on equitable distribution in File No. 18 CVD 201 on 18 November 2019. On 17 December 2019, after mediation reached an impasse, Wife took a voluntary dismissal without prejudice of her counterclaim for equitable distribution in File No. 18 CVD 201. On 27 January 2020, Wife filed motions in the cause asserting claims for equitable distribution in both File Nos. 18 CVD 201 and 19 CVD 224; both motions were filed at 8:21 A.M. Later the same day, after a testimonial hearing upon the absolute divorce claim, the trial court entered an absolute divorce judgment in File No. 19 CVD 224. The signed divorce judgment was filed at 10:07 A.M.

¶ 7 On 5 February 2020, Husband filed motions to dismiss Wife's motions in the cause in File Nos. 18 CVD 201 and 19 CVD 224. Husband's motions to dismiss were based upon North Carolina General Statute § 50-20 and North Carolina General Statute § 1A-1, Rule 12(b)(1), raising the issue of subject matter jurisdiction. In his motion to dismiss Wife's motion in the cause in File No. 18 CVD 201, Husband argued that File No. 18 CVD 201 was closed when Wife dismissed her equitable distribution counterclaim without prejudice and, accordingly, there were no pending causes of action as of 27 January 2020 in that case. In his motion to dismiss Wife's motion in the cause in File No. 19 CVD 224, Husband alleged that Wife did not file an answer or request an extension of time after being served with the complaint for absolute divorce; Wife did not seek leave of court to answer the complaint for absolute divorce; and Wife did not bring an independent equitable distribution cause of action after voluntarily dismissing her counterclaim for equitable distribution in File No. 18 CVD 201.

¶ 8 Husband's motions to dismiss came on for hearing on 14 February 2020 in Yancey County District Court. Neither Wife nor her attorney was present at the hearing.¹ In an order entered 24 February 2020, the trial court granted Husband's motions to dismiss Wife's motions in the cause in File Nos. 18 CVD 201 and 19 CVD 224. Wife timely appeals.

II. Standard of Review

¶ 9 The order on appeal ruled on Husband's motion to dismiss based upon subject matter jurisdiction.

Rule 12(b)(1) permits a party to contest, by motion, the jurisdiction of the trial court over the subject matter in controversy. We review Rule 12(b)(1) motions to dismiss for lack of subject matter jurisdiction de novo and may consider matters outside the pleadings. Pursuant to the de novo standard of review, the court considers the matter anew and freely substitutes its own judgment for that of the trial court.

Trivette v. Yount , 217 N.C. App. 477, 482, 720 S.E.2d 732, 735 (2011) (citations, quotation marks, and brackets omitted). Husband also presents an argument regarding the proper method for asserting an equitable distribution claim based upon an interpretation of North Carolina General Statute § 50-11 and thus raises an issue of statutory construction. Statutory construction is an issue of law which we review de novo on appeal. State v. Hayes , 248 N.C. App. 414, 415, 788 S.E.2d 651, 652 (2016).

III. Analysis

¶ 10 The trial court's order addressing the motions to dismiss in both actions includes several findings of fact, but most of the findings address the procedural history of the two cases and some findings address the issues regarding the motion to continue and timeliness of service of the notice of hearing.

¶ 11 The finding of fact relevant to the issues on appeal are as follows:

7. That as of January 27, 2020 there were no causes of action before the court in Yancey County file No. 18 CVD 201.

8. That on or about December 17, 2019 [Wife] took a voluntary dismissal without prejudice of her counter-claim for Equitable Distribution resolving all causes of action in Yancey County file No. 18 CVD 201.

9. That Yancey County File No. 19 CVD 224 is a complaint for Absolute Divorce filed by [Husband] on or about October 11, 2019.

10. That [Wife] was properly served with the divorce complaint in Yancey County File No. 19 CVD 224.

11. That [Wife] has not answered or sought leave of the court to answer or counterclaim in Yancey County File No. 19 CVD 224.

12. That a divorce judgment was entered in Yancey County File No. 19 CVD 224 on January 27, 2020.

The relevant conclusions of law are as follows:

1. That above "Findings of Fact" are herein incorporated by reference and made a part hereof.

2. The parties are properly before the court, and the Court has jurisdiction over the parties hereto and the subject matter herein.^[2]

The trial court concluded it had subject matter jurisdiction but also granted Husband's motions to dismiss Wife's equitable distribution claims, apparently based upon its determinations that in File No. 19 CVD 224, Wife "has not answered or sought leave of court to answer or counterclaim" and in File No. 18 CVD 201, "as of January 27, 2020 there were no causes of action before the court in Yancey County file No. 18 CVD 201."

¶ 12 In North Carolina, "[u]pon application of a party, the court shall determine what is the marital property and divisible property and shall provide for an equitable distribution of the marital property and divisible property between the parties in accordance with the provisions of this section." N.C. Gen. Stat. § 50-20(a) (2019). "An absolute divorce obtained within this State shall destroy the right of a spouse to equitable distribution under G.S. 50-20 unless the right is asserted prior to judgment of absolute divorce [.]" N.C. Gen. Stat. § 50-11(e) (2019) (emphasis added).

¶ 13 Wife argues "the trial court committed reversible error in dismissing [Wife's] Motion for Equitable Distribution when [Wife] had properly filed her claim for equitable distribution in both 18-CVD-201 and 19-CVD-224." (Original in all caps.) Wife contends her claims for equitable distribution in File Nos. 18 CVD 201 and 19 CVD 224 were preserved because they were filed before the trial court entered an absolute divorce judgment. In both File Nos. 18 CVD 201 and 19 CVD 224, Husband argues the equitable distribution claim cannot be "asserted" by a motion in the cause but that it must be brought by an independent complaint or a counterclaim. In File No. 18 CVD 201, Husband argues Wife's motion in the cause was untimely because she filed it over 30 days after she was served with the absolute divorce complaint. In File No. 19 CVD 224, Husband argues that "a new complaint is clearly required in order to commence a new civil action following a Rule 41 dismissal, and a motion in the cause in the dismissed action in insufficient." We address each action in turn.

A. File No. 18 CVD 201-Motion in the Cause Filed After Dismissal of Prior Claim

¶ 14 First, we address the trial court's dismissal of Wife's motion in the cause for equitable distribution in File No. 18 CVD 201, after her voluntary dismissal of her equitable distribution claim in this action. Husband contends that a new complaint was necessary to commence a new civil action for equitable distribution after Wife took a Rule 41 dismissal of her counterclaims. Specifically, Husband argues that "no statutory authority exists that authorizes the re-initiation of a previously dismissed civil...