Summary
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.
Summary of this case from McIver v. McIverOpinion
No. 8415DC999
Filed 4 June 1985
Divorce and Alimony 30 — equitable distribution — improper before absolute divorce Pursuant to G.S. 50-21(a), the trial court was without authority to enter an order of equitable distribution with the consent of the parties prior to a decree of absolute divorce.
APPEALS by plaintiff and defendant from Washburn, Judge. Judgment entered 13 June 1984 in District Court. ALAMANCE County. Heard in the Court of Appeals 17 April 1985.
Daniel H. Monroe and Latham and Wood, by James F. Latham and William Eagles, for plaintiff.
Vernon, Vernon, Wooten, Brown Andrews, P.A., by Wiley O. Wooten and T. Randall Sandifer, for defendant.
Judge PHILLIPS concurring.
Plaintiff instituted this action seeking a divorce from bed and board and an equitable distribution of the marital property. With the consent of the parties, the court entered an order on 12 May 1983 granting the parties a divorce from bed and board and ordering the parties to prepare for and appear at a hearing for the purpose of equitably distributing the marital property. The parties consented to an equitable distribution of the marital property regardless of whether or not an absolute divorce had been granted at the time of the distribution. On 13 June 1984, with the consent of the parties, the court entered an order equitably distributing the parties' property. The parties appeal from that order.
At the time the order of equitable distribution was entered, the parties had not received an absolute divorce, nor had they received an absolute divorce at the time of oral argument, as counsel conceded in oral argument. G.S. 50-21 (a) specifically provides:
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.)
Although the court had jurisdiction over the parties and their property, it was without authority to enter the order of equitable distribution preceding an absolute divorce in light of the explicit language of G.S. 50-21 (a). The order of the trial court is a nullity and must be vacated.
Vacated.
Judges WHICHARD and PHILLIPS concur.