Financial Resource

STARKEY SHARP v. LINDA R. SHARP
COURT OF APPEALS OF NORTH CAROLINA
January 7, 1987, Heard in the Court of Appeals
January 20, 1987, Filed

Plaintiff filed this action seeking an absolute divorce from defendant on grounds of one year’s separation. In her answer, defendant admitted the allegations of the complaint and asserted a counterclaim for equitable distribution of the parties’ marital property. Thereafter, plaintiff moved, pursuant to G.S. 1A-1, Rule 42(b), for severance of his claim for absolute divorce from defendant’s counterclaim.  The motion was allowed over defendant’s objection. A separate trial was held upon plaintiff’s claim for absolute divorce and judgment was entered granting him an absolute divorce from defendant. Defendant appealed.

Whether the trial court erred in severing the issue of absolute divorce and proceeding to trial on that issue alone?
Whether plaintiff’s complaint was fatally defective and therefore cannot support a judgment of absolute divorce?

1)         Whether the trial court erred in severing the issue of absolute divorce and proceeding to trial on that issue alone?

The Court states that “the plain language of the G.S. 50-21(a) statute clearly provides that the equitable distribution of marital property must follow a decree of absolute divorce.  The distribution proceedings may be instituted as a cross action or in a suit altogether separate from the divorce action.”  The statute does not require, nor are we aware of any appellate cases construing the statute as requiring, that the distribution hearing must be held immediately following entry of the absolute divorce. Capps, supra, in holding that equitable distribution proceedings must precede determinations of alimony and child support, simply states that “when properly demanded, equitable distribution must be granted upon the divorce decree being entered. . . .” Capps at 757, 318 S.E. 2d at 348. This statement cannot, and should not, be construed to impose an immediacy requirement on the proceedings.  G.S. 50-20(a) effectively provides for the “freezing” of the marital estate as of the date of the parties’ separation. Marital assets, distributed thereafter, are valued as of that date. Attempts by one or both spouses to deplete the marital estate or dispose of marital property after the date of separation but before distribution may be considered by the court when making the division, and any conversion of marital property for individual purposes may be charged against the acting spouse’s share.  These assignments of error are overruled.

2)         Whether plaintiff’s complaint was fatally defective and therefore cannot support a judgment of absolute divorce?

The Court noted that G.S. 50-6 provides the Marriages may be dissolved and the parties thereto divorced from the bonds of matrimony on the application of either party, if and when the husband and wife have lived separate and apart for one year, and the plaintiff or defendant in the suit for divorce has resided in the State for a period of six months.              In this case the complaint alleged that plaintiff had been a resident of the State for more than six months prior to the institution of the action, that the parties had been married, and that they had thereafter separated and lived separate and apart for more than a year before the commencement of the action. The allegations were admitted by defendant and, at the hearing, plaintiff produced un-contradicted evidence in support of each of them. The establishment of these allegations by proof entitles the plaintiff to an absolute divorce.

Conclusion:

The court affirmed the judgment granting the husband an absolute divorce and dividing the parties’ marital property.

Disclaimer:

These summaries are provided by the SRIS Law Group.  They represent the firm’s unofficial views of the Justices’ opinions.  The original opinions should be consulted for their authoritative content

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