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Webb v. Webb
Citations: 656 S.E.2d 334; 188 N.C. App. 621; 2008 N.C. App. LEXIS 203Docket: No. COA07-818.
Court: Court of Appeals of North Carolina; February 5, 2008; North Carolina; State Appellate Court
Raine Tyndall Webb, the defendant, appeals a judgment that dismissed her motion to compel Robert G. Webb, the plaintiff, to file an equitable distribution affidavit. The court affirms the judgment. The couple married on June 7, 1980, and separated on February 1, 2001. The plaintiff filed a complaint on June 26, 2001, seeking divorce, joint custody of children, possession of personal property, and equitable distribution of marital property. The defendant did not respond, and the case became inactive by an order filed on July 3, 2002. A new complaint for absolute divorce was filed by the plaintiff on June 18, 2003, to which the defendant replied that she would not grant an absolute divorce but made no mention of equitable distribution. The court granted the divorce on September 22, 2003, while reserving any claims for equitable distribution. On March 9, 2005, the plaintiff moved to restore the original cause to active status to dismiss his equitable distribution claim, which was restored on May 23, 2005. He then dismissed the equitable distribution issue with prejudice on June 6, 2005. The defendant filed a motion to compel the equitable distribution affidavit on October 13, 2006. The court denied her motion on March 13, 2007, reasoning that the plaintiff's equitable distribution claim had been terminated by his voluntary dismissal. The defendant argues that the trial court erred in denying her motion. The court maintains that the decision to grant or deny a motion to compel lies within the trial court's discretion and will not be reversed unless there is an abuse of discretion, defined as actions unsupported by reason. The analysis highlights that equitable distribution claims can be filed after separation either as separate actions or within other Chapter 50 actions. However, such claims must be specifically applied for and cannot be assumed or automatically granted. Defendant contends that finding of fact numbered 5 in the trial court's order, which denied her motion to compel equitable distribution, indicates she made an oral motion for equitable distribution before the court granted an absolute divorce. Finding number 5 notes that while the plaintiff filed for absolute divorce and it was granted, the defendant appeared at the hearing and requested property division but did not file a counterclaim for equitable distribution. According to N.C. Gen. Stat. 50-21(a), a claim for equitable distribution can be asserted through three methods: as a separate civil action, as a cross-action to another related action, or as a motion in the cause. The defendant argues that her oral motion preserved her right, but the court disagrees, stating that N.C. Gen. Stat. 50-11(e) and (f) require a specific assertion of rights prior to the absolute divorce judgment. The court finds that the defendant's oral motion does not meet the criteria set forth by the statute, and since she failed to file a claim for equitable distribution within six months after the divorce was granted, her right to claim equitable distribution was extinguished. The trial court's denial of the motion to compel was deemed reasoned and not arbitrary, leading to the affirmation of the trial court's order. Judges JACKSON and ARROWOOD concur with this decision.