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Domestic Relations – Equitable Distribution – Subject Matter Jurisdiction – Pre-Separation Complaint

Holding: Even though plaintiff first raised her equitable distribution claim in her complaint for divorce from bed and board – filed before the parties separated – since she raised it again in a verified motion after the parties were separated, the trial court had subject matter jurisdiction over plaintiff’s equitable distribution claim.

We affirm the trial court’s equitable distribution order but remand for correction of a clerical error.

Our General Statutes provide that a party may assert a claim for equitable distribution (ED) only after separation has occurred. However, in Gurganus v. Gurganus, 796 S.E.2d 811 (2017), disc. rev. denied, 369 N.C. 753, 799 S.E.2d 621 (2017), our court essentially found that the trial court had subject matter jurisdiction over an ED claim – despite the fact that the original request for ED was filed prior to the parties’ actual date of separation – because the defendant filed an answer and counterclaim requesting ED after the parties had separated. This conclusion suggests that so long as either party makes a request for ED after the date of separation, the trial court has jurisdiction to consider the request.

We acknowledge that the trial court did not have subject matter jurisdiction over the plaintiff-wife’s ED claim as asserted in her May 2014 complaint because the parties were not yet separated at that time. However, the trial court did obtain subject matter jurisdiction over the wife’s claim as asserted in her verified motion in the cause filed in March 2016, on the morning of the parties’ ED hearing.

Specifically, the verified motion alleged that the parties had separated on Sept. 6, 2014, and “remained separate and apart since that date” and specifically requested that the trial court enter an order providing for the distribution of the parties’ property under G.S. § 50-20. This complies with G.S. § 50-20 and our case law.

Whether or not the wife’s motion was served upon the defendant-husband is irrelevant to the issue of subject matter jurisdiction. By virtue of the husband’s full participation in the hearing and failure to contest the wife’s verified motion at the trial court level, the husband has waived his right to challenge the issue of personal jurisdiction.

The ED order clearly says that the trial court had “consider[ed] whether an equal distribution would be equitable,” and that in doing so, it considered “all evidence presented relating to the statutory factors.” It is irrelevant that this paragraph of the ED order comes after its first proclamation that “an unequal distribution is appropriate.” The trial court complied with § 50-20 in concluding that an equal distribution would be inequitable.

Where the trial court found that the husband has a monthly income of around $4,202 from which he can pay a distributive award of $1,971 per month for three years, the trial court was not required to consider the tax consequences that would result from the liquidation of non-liquid assets.

The wife concedes that the trial court made a clerical error in that its findings of fact say the net value of the marital estate is $979,665.92 but the decretal portion of the ED order says the value was $982,380. We remand for the limited purpose of allowing the trial court to correct the net valuation in the decretal portion of the ED Order to reflect the proper amount from the trial court’s findings: $979,665.92. In addition, the trial court shall review the ED Order in its entirety to ensure that any calculations which may be based on the incorrect figure are corrected.

Affirmed in part, remanded in part.

Amir v. Amir (Lawyers Weekly No. 012-030-18, 12 pp.) (Chris Dillon, J.) Appealed from Wake County District Court (Lori Christian, J.) Michael Harrell for plaintiff; Jonathan McGirt for defendant. N.C. App. Unpub.

 

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