{
  "id": 8524581,
  "name": "LILLIAN O. RABON, Plaintiff v. THOMAS O. RABON, Defendant",
  "name_abbreviation": "Rabon v. Rabon",
  "decision_date": "1991-04-02",
  "docket_number": "No. 904DC436",
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  "last_updated": "2023-07-14T21:20:04.252791+00:00",
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    "date_added": "2019-08-29",
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  "casebody": {
    "judges": [
      "Chief Judge HEDRICK and Judge Wynn concur."
    ],
    "parties": [
      "LILLIAN O. RABON, Plaintiff v. THOMAS O. RABON, Defendant"
    ],
    "opinions": [
      {
        "text": "LEWIS, Judge.\nThe three issues in this case are whether the trial court erred: 1) in denying defendant\u2019s motion to set aside plaintiff\u2019s notice of voluntary dismissal, 2) in allowing the plaintiff\u2019s motion for judgment on the pleadings, and 3) in denying the defendant\u2019s motion to amend his pleadings to allege a counterclaim for equitable distribution.\nThe plaintiff and the defendant were married on 27 December 1959. They lived together until their separation on 13 July 1987. The plaintiff and defendant entered into a written separation agreement and a property settlement dated 13 July 1987.\nOn 8 August 1988, the plaintiff filed a complaint seeking: 1) a divorce based on one year\u2019s separation, 2) the setting aside of the separation agreement and property settlement on the grounds of fraud and misrepresentation by the defendant, and 3) equitable distribution of the marital property. The defendant filed an untimely answer admitting the allegations concerning the divorce, but denying allegations with respect to fraud and misrepresentation. Defendant also joined in plaintiff\u2019s prayer for relief for an absolute divorce and equitable distribution.\nOn 29 December 1989, the plaintiff filed a notice of voluntary dismissal as to both her claim for equitable distribution and her request to have the court set aside the separation agreement and property settlement. On 5 January 1990, the plaintiff filed a motion for judgment on the pleadings pursuant to N.C.G.S. \u00a7 1A-1, Rule 12(c).\nIn response to the plaintiff\u2019s motions, the defendant filed a motion to set aside plaintiff\u2019s voluntary dismissal on 5 January 1990. On 23 January 1990, defendant also filed a motion for leave to amend his answer by adding a formal counterclaim for equitable distribution. After hearing arguments, the trial court entered an order granting the plaintiff\u2019s motion for judgment on the pleadings, awarding the plaintiff an absolute divorce, and denying the defendant\u2019s motions to set aside plaintiff\u2019s voluntary dismissal and to amend defendant\u2019s pleading.\nFirst\nThe first issue before this Court is whether the trial judge erred in denying the defendant\u2019s motion to set aside the plaintiff\u2019s voluntary dismissal. N.C.G.S. \u00a7 1A-1, Rule 41(a) allows a plaintiff to take a voluntary dismissal without a court order \u201cby filing a notice of dismissal at any time before the plaintiff rests his case. . . .\u201d The defendant argues, however, that McCarley v. McCarley, 289 N.C. 109, 221 S.E.2d 490 (1976), is controlling in this case and requires the court to set aside the plaintiff\u2019s voluntary dismissal.\nFirst, as a preliminary matter, we note that the plaintiff argues the defendant\u2019s answer was untimely, and thus, should not be considered. Although the plaintiff mentioned the untimeliness of the defendant\u2019s answer when arguing his motions to the trial court, the plaintiff relied on the defendant\u2019s answer in asking the court to grant the divorce. The plaintiff, by doing so, impliedly consented to the late filing of the defendant\u2019s answer. See Ingle v. Ingle, 53 N.C. App. 227, 232, 280 S.E.2d 460, 463 (1981). Therefore, the plaintiff may not now, on appeal, ask the court to rule in its favor based on the defendant\u2019s untimely answer. The defendant\u2019s answer will be treated as though it was timely.\nIn McCarley, the plaintiff filed an action for absolute divorce. The defendant responded in his answer by admitting the allegations in the complaint and prayed also for divorce. The plaintiff then filed a notice of voluntary dismissal. The defendant moved to have the voluntary dismissal set aside. The court granted the defendant\u2019s motion.\nIn McCarley, the North Carolina Supreme Court agreed with the trial court\u2019s ruling. The court stated that the defendant\u2019s answer was, in effect, a counterclaim \u201cseeking affirmative relief and arising out of the same transactions alleged in the complaint.\u201d McCarley v. McCarley, 289 N.C. at 113, 221 S.E.2d at 493. Thus, the court held that it would be manifestly unjust to allow the plaintiff to withdraw his original allegations without the consent of the defendant. Id.\nN.C.G.S. \u00a7 50-20(a) states that \u201c[u]pon application of a party, the court . . . shall provide for an equitable distribution of marital property between the parties....\u201d There is no specific requirement in the statute regarding the correct manner in which to plead a claim for equitable distribution. In this case, the defendant joined in the plaintiff\u2019s prayer for equitable distribution in his answer. \u201cFailure to label the affirmative allegations as a counterclaim is, of course, not fatal if they sufficiently support a claim for relief.\u201d McCarley v. McCarley, 289 N.C. at 114, 221 S.E.2d at 494 (citation omitted). As in McCarley, the defendant\u2019s answer was, in effect, a counterclaim. In this case, the defendant sought equitable distribution. However, here the original request by the plaintiff in her complaint was that she asked the court to set aside a separation agreement and property settlement based on fraud which the defendant denied; in McCarley, the plaintiff in her original complaint asked the court to enter a divorce based on one year\u2019s separation.\nUnder our present law, if a court finds that a separation agreement fully disposes of the parties\u2019 rights arising out of the marriage, the court may not set aside the separation agreement and property settlement, absent fraud or misrepresentation. A separation agreement and property settlement entered into by the parties which fully disposes of the property rights arising out of a marriage acts as a bar to equitable distribution. Hagler v. Hagler, 319 N.C. 287, 295, 354 S.E.2d 228, 235 (1987).\nUnless both parties legally consent to rescinding the agreement, the court is without the power to discard valid contracts between the parties and to order equitable distribution. The parties in this case did not rescind the separation agreement and property settlement, nor were there any findings of fraud or misrepresentation. Here, the parties admitted to the existence of the agreements, but the agreements were not presented to the court.\nMcCarley pronounced a general rule that when a defendant sets up a claim for affirmative relief against a plaintiff arising out of the same transactions alleged by the plaintiff, the plaintiff cannot take a voluntary dismissal without the consent of the defendant. In this case, the plaintiff\u2019s original claim may have been barred by law. If the court finds that the agreements fully disposed of the parties\u2019 rights arising out of the marriage, and thus bar an equitable distribution claim, the court would not be bound to apply the rule addressed in McCarley.\nThe trial judge did not have the agreements before him so that he could determine if the agreements fully disposed of the property rights arising out of the marriage. We hold, therefore, that the judge could not grant the plaintiff\u2019s voluntary dismissal without this information. Although the judge specifically found that the agreements fully disposed of the parties\u2019 marital property, there was no evidence to support such a finding. We remand this case for a determination of whether, in fact, the separation agreement and property settlement fully disposed of the property rights arising out of the marriage.\nSecond\nThe next issue before this Court is whether the trial court properly allowed plaintiff\u2019s motion for judgment on the pleadings, pursuant to N.C.G.S. \u00a7 1A-1, Rule 12(c). The defendant contends that the plaintiff failed to plead the existence of the separation agreement as an affirmative defense and that the plaintiff did not meet her burden of proving that there was no marital property subject to equitable distribution.\nN.C.G.S. \u00a7 52-10(a) provides that a contract between spouses which releases rights acquired by marriage \u201cmay be pleaded in bar of any action or proceeding for the recovery of the rights and estate so released.\u201d In plaintiff\u2019s original complaint, the plaintiff acknowledged the existence of the separation agreement and property settlement in her second cause of action and in her prayer for relief. The defendant admitted the existence of the agreements in his answer. Although the plaintiff took a voluntary dismissal as to the setting aside of the separation agreement and her equitable distribution claim, the plaintiff and defendant do not dispute in their pleadings that they entered into a separation agreement and property settlement. We hold that the pleadings were sufficient to satisfy N.C.G.S. \u00a7 52-10(a).\nThe trial court expressly found in its order that: the separation agreement and property settlement \u201cdated July 13, 1987 fully disposed of the parties\u2019 property rights arising out of the marriage.\u201d However, the trial judge did not view the separation agreement or the property settlement to ascertain whether the agreements disposed of all property rights of the parties. Under N.C.G.S. \u00a7 1A-1, Rule 12(c), a party moving for judgment on the pleadings must show that no material issue of fact exists and that he or she is clearly entitled to judgment. Newbold v. Globe Life Ins. Co., 50 N.C. App. 628, 629, 274 S.E.2d 905, 906 (1981) (citation omitted). Whether the agreements fully disposed of the parties\u2019 marital property is a factual issue that could only be determined by examining the agreements. Therefore, we hold that the trial court erred in allowing plaintiff\u2019s motion for judgment on the pleadings.\nThird\nThe last issue before the Court is whether the trial court erred in denying the defendant\u2019s motion to amend his pleadings to allege a counterclaim for equitable distribution. As we held the defendant\u2019s initial answer was in effect a counterclaim which was sufficient to state a claim for equitable distribution, we need not address this issue.\nReversed and remanded for the trial court to determine if the agreements fully disposed of the parties\u2019 property rights arising out of the marriage.\nChief Judge HEDRICK and Judge Wynn concur.",
        "type": "majority",
        "author": "LEWIS, Judge."
      }
    ],
    "attorneys": [
      "Lana Starnes Warlick for plaintiff-appellee.",
      "Fredric C. Hall for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "LILLIAN O. RABON, Plaintiff v. THOMAS O. RABON, Defendant\nNo. 904DC436\n(Filed 2 April 1991)\n1. Rules of Civil Procedure \u00a7 8.2 (NCI3d)\u2014 timeliness of answer\u2014 objection waived where answer relied upon\nPlaintiff could not on appeal ask the court to rule in her favor based on defendant\u2019s untimely answer where plaintiff relied in the trial court on defendant\u2019s answer in asking the court to grant a divorce, and plaintiff by doing so impliedly consented to the late filing of defendant\u2019s answer.\nAm Jur 2d, Appeal and Error \u00a7\u00a7 563, 591; Pleading \u00a7\u00a7 126, 356.\n2. Rules of Civil Procedure \u00a7 41.1 (NCI3d)\u2014 equitable distribution \u2014 setting aside separation agreement \u2014 voluntary dismissal not appropriate\nWhere plaintiff filed a complaint seeking an absolute divorce, the setting aside of the parties\u2019 separation agreement and property settlement on the grounds of fraud and misrepresentation by defendant, and equitable distribution of the marital property, and defendant filed an answer joining in the claims for absolute divorce and equitable distribution, the trial court could not grant plaintiffs motion for voluntary dismissal as to the claims for equitable distribution and setting aside the separation agreement, since the court did not have before it the parties\u2019 agreements and therefore could not determine if the agreements fully disposed of the property rights arising out of the marriage and thus barred an equitable distribution claim, or whether the equitable distribution claim was allowable and was not subject to voluntary dismissal because of defendant\u2019s \u201ccounterclaim\u201d for equitable distribution.\nAm Jur 2d, Dismissal, Discontinuance, and Nonsuit \u00a7\u00a7 21, 22; Divorce and Separation \u00a7 836.\n3. Divorce and Separation \u00a7 162 (NCI4th)\u2014 absolute divorce\u2014 equitable distribution claim \u2014 action to set aside separation agreement \u2014 judgment on the pleadings improper\nThe trial court erred in allowing plaintiff\u2019s motion for judgment on the pleadings on the issue of equitable distribution where there was a factual issue as to whether separation and property settlement agreements fully disposed of the parties\u2019 marital property.\nAm Jur 2d, Divorce and Separation \u00a7 834; Pleading \u00a7\u00a7 231-233.\nAPPEAL by defendant from a judgment entered on 12 February 1990 by Judge Leonard W. Thagard in DUPLIN County District Court. Heard in the Court of Appeals 3 December 1990.\nLana Starnes Warlick for plaintiff-appellee.\nFredric C. Hall for defendant-appellant."
  },
  "file_name": "0452-01",
  "first_page_order": 482,
  "last_page_order": 487
}