{
  "id": 8527198,
  "name": "VIRGINIA STIREWALT (GRIFFIN), Plaintiff v. JOHN O. STIREWALT, Defendant",
  "name_abbreviation": "Stirewalt v. Stirewalt",
  "decision_date": "1994-03-15",
  "docket_number": "No. 9320DC270",
  "first_page": "107",
  "last_page": "110",
  "citations": [
    {
      "type": "official",
      "cite": "114 N.C. App. 107"
    }
  ],
  "court": {
    "name_abbreviation": "N.C. Ct. App.",
    "id": 14983,
    "name": "North Carolina Court of Appeals"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [
    {
      "cite": "41 ALR4th 481",
      "category": "reporters:specialty",
      "reporter": "A.L.R. 4th",
      "opinion_index": -1
    },
    {
      "cite": "354 S.E.2d 228",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "weight": 2,
      "year": 1987,
      "opinion_index": 0
    },
    {
      "cite": "319 N.C. 287",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        4741751
      ],
      "year": 1987,
      "opinion_index": 0,
      "case_paths": [
        "/nc/319/0287-01"
      ]
    },
    {
      "cite": "332 S.E.2d 490",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1985,
      "opinion_index": 0
    },
    {
      "cite": "314 N.C. 121",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        4691945,
        4692673,
        4692364
      ],
      "year": 1985,
      "opinion_index": 0,
      "case_paths": [
        "/nc/314/0121-02",
        "/nc/314/0121-01",
        "/nc/314/0121-03"
      ]
    },
    {
      "cite": "325 S.E.2d 668",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1985,
      "opinion_index": 0
    },
    {
      "cite": "73 N.C. App. 96",
      "category": "reporters:state",
      "reporter": "N.C. App.",
      "case_ids": [
        8521939
      ],
      "year": 1985,
      "opinion_index": 0,
      "case_paths": [
        "/nc-app/73/0096-01"
      ]
    },
    {
      "cite": "N.C. Gen. Stat. \u00a7 50-20",
      "category": "laws:leg_statute",
      "reporter": "N.C. Gen. Stat.",
      "pin_cites": [
        {
          "page": "(a)"
        }
      ],
      "opinion_index": 0
    }
  ],
  "analysis": {
    "cardinality": 320,
    "char_count": 5176,
    "ocr_confidence": 0.759,
    "pagerank": {
      "raw": 7.317852702137001e-08,
      "percentile": 0.43871553901405064
    },
    "sha256": "ead71e7a5283e3190254e03f4afaa6628d38d59797ad33edbf25a7a219a81924",
    "simhash": "1:c7359712978b39ec",
    "word_count": 810
  },
  "last_updated": "2023-07-14T17:01:59.295429+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Judges JOHN and McCRODDEN concur."
    ],
    "parties": [
      "VIRGINIA STIREWALT (GRIFFIN), Plaintiff v. JOHN O. STIREWALT, Defendant"
    ],
    "opinions": [
      {
        "text": "WELLS, Judge.\nThe primary and dispositive question raised by defendant-husband in his appeal is whether either party to this action sufficiently asserted a claim for equitable distribution such that the trial court properly entered a judgment of equitable distribution. We hold that neither party asserted such a claim and therefore reverse the trial court\u2019s order of equitable distribution.\nN.C. Gen. Stat. \u00a7 50-20(a) states that \u201c[u]pon application of a party, the court . . . shall provide for an equitable distribution of the marital property between the parties. ...\u201d (Emphasis supplied.) The courts of our State recognize that equitable distribution is a property right. Wilson v. Wilson, 73 N.C. App. 96, 325 S.E.2d 668, disc. rev. denied, 314 N.C. 121, 332 S.E.2d 490 (1985). A married person is entitled to proceed with an action for equitable distribution upon divorce if it is properly applied for and not otherwise waived. Hagler v. Hagler, 319 N.C. 287, 354 S.E.2d 228 (1987). However, equitable distribution is not automatic, and a party seeking equitable distribution must specifically apply for it. Id. G.S. \u00a7 50-21(a) provides that:\nAt any time after a husband and wife begin to live separate and apart from each other, a claim for equitable distribution may be filed, either as a separate civil action, or together with any other action brought pursuant to Chapter 50 of the General Statutes, or as a motion in the cause as provided by G.S. 50-ll(e) or (f). (Emphasis supplied.)\nDefendant-husband contends that neither he nor plaintiff-wife asserted a claim for equitable distribution; therefore, the trial court was without jurisdiction to enter such a judgment. After carefully examining the record before us, we must agree.\nIn this action for divorce from bed and board, plaintiff\u2019s complaint asserted a claim for child support, temporary alimony and permanent alimony. Additionally in her complaint, plaintiff requested: (1) to remain in the dwelling in which she and her child resided, (2) the possession and use of the personal property located in that dwelling, (3) the possession and use of a 1976 Ford Mustang automobile, and (4) attorney\u2019s fees. In the prayer for relief, plaintiff requested that defendant be ordered to maintain in their present condition all marital assets in his possession and control, including the homes owned by the parties, as well as the furnishings and personal property located in the homes. This complaint clearly makes no application for and states no claim for equitable distribution.\nBy his answer, defendant prayed that, plaintiff\u2019s complaint be dismissed, that plaintiff have and recover nothing of defendant, and that all issues triable by a jury be tried by a jury. Thus, defendant\u2019s pleadings likewise fail to assert a claim for equitable distribution.\nThe trial court found and concluded in its judgment that plaintiff\u2019s complaint raised the issue of equitable distribution and defendant\u2019s answer also asked that equitable distribution of the marital property be determined by the court. The record before us clearly shows this finding and conclusion to be erroneous.\nSince neither party made application or stated a claim for equitable distribution prior to the judgment of absolute divorce, the trial court lacked the authority to enter such a judgment. G.S. \u00a7 50-11(e). For this reason, we reverse the district court\u2019s order of equitable distribution.\nIn light of our holding, we find it unnecessary to reach defendant\u2019s remaining assignments of error.\nReversed.\nJudges JOHN and McCRODDEN concur.",
        "type": "majority",
        "author": "WELLS, Judge."
      }
    ],
    "attorneys": [
      "No brief was filed for plaintiff-appellee.",
      "Everette Noland for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "VIRGINIA STIREWALT (GRIFFIN), Plaintiff v. JOHN O. STIREWALT, Defendant\nNo. 9320DC270\n(Filed 15 March 1994)\nDivorce and Separation \u00a7 172 (NCI4th)\u2014 equitable distribution-assertion of claim \u2014 not sufficient\nAn order of equitable distribution was reversed where plaintiff\u2019s complaint in an action for divorce from bed and board asserted a claim for child support, temporary alimony, permanent alimony, the possession and use of certain property, and that defendant be ordered to maintain all marital assets in their present condition, but clearly made no application for equitable distribution, and defendant\u2019s pleadings likewise failed to assert a claim for equitable distribution. Equitable distribution is not automatic and a party seeking equitable distribution must specifically apply for it. N.C.G.S. \u00a7 50-21(a).\nAm Jur 2d, Divorce and Separation \u00a7\u00a7 950 et seq.\nDivorce: equitable distribution doctrine. 41 ALR4th 481.\nAppeal by defendant from judgment entered 22 July 1992 by Judge Ronald W. Burris in Stanly County District Court. Heard in the Court of Appeals 10 January 1994.\nThe evidence at trial tended to show that plaintiff and defendant were married on 26 September 1948 and lived together as husband and wife until 4 October 1988. On 17 February 1989, plaintiff-wife filed a complaint for divorce from bed and board, alimony, child support and child custody. On 22 March 1990, an absolute divorce was entered. In July of 1992 a judgment of equitable distribution was entered. From that order, defendant appeals.\nNo brief was filed for plaintiff-appellee.\nEverette Noland for defendant-appellant."
  },
  "file_name": "0107-01",
  "first_page_order": 135,
  "last_page_order": 138
}