{ "id": 8522327, "name": "BRENDA DIGGS v. ARTHUR DIGGS", "name_abbreviation": "Diggs v. Diggs", "decision_date": "1994-08-16", "docket_number": "No. 935SC124", "first_page": "95", "last_page": "100", "citations": [ { "type": "official", "cite": "116 N.C. App. 95" } ], "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": "301 S.E.2d 729", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1983, "pin_cites": [ { "page": "731" } ], "opinion_index": 0 }, { "cite": "61 N.C. App. 700", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523812 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc-app/61/0700-01" ] }, { "cite": "282 S.E.2d 487", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1981, "pin_cites": [ { "page": "488" }, { "page": "488" } ], "opinion_index": 0 }, { "cite": "54 N.C. App. 189", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521114 ], "weight": 2, "year": 1981, "pin_cites": [ { "page": "189" } ], "opinion_index": 0, "case_paths": [ "/nc-app/54/0189-01" ] }, { "cite": "210 S.E.2d 509", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "24 N.C. App. 362", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551165 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nc-app/24/0362-01" ] }, { "cite": "149 S.E.2d 553", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1966, "pin_cites": [ { "page": "557" } ], "opinion_index": 0 }, { "cite": "268 N.C. 14", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560016 ], "year": 1966, "pin_cites": [ { "page": "19" } ], "opinion_index": 0, "case_paths": [ "/nc/268/0014-01" ] }, { "cite": "136 S.E.2d 113", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1964, "pin_cites": [ { "page": "115" } ], "opinion_index": 0 }, { "cite": "261 N.C. 692", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575297 ], "year": 1964, "pin_cites": [ { "page": "695" } ], "opinion_index": 0, "case_paths": [ "/nc/261/0692-01" ] }, { "cite": "369 S.E.2d 628", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1988, "pin_cites": [ { "page": "672" }, { "page": "629", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "90 N.C. App. 670", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525934 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc-app/90/0670-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 46-3", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1993, "opinion_index": 0 }, { "cite": "299 S.E.2d 629", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "631" } ], "opinion_index": 0 }, { "cite": "307 N.C. 563", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564174 ], "year": 1983, "pin_cites": [ { "page": "566" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0563-01" ] }, { "cite": "354 S.E.2d 228", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1987, "pin_cites": [ { "page": "232" }, { "page": "292" }, { "page": "233" }, { "page": "233" } ], "opinion_index": 0 }, { "cite": "319 N.C. 287", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4741751 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "290" }, { "page": "292" } ], "opinion_index": 0, "case_paths": [ "/nc/319/0287-01" ] }, { "cite": "417 S.E.2d 854", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "parenthetical": "unpublished" } ], "opinion_index": 0 }, { "cite": "106 N.C. App. 394", "category": "reporters:state", "reporter": "N.C. App.", "year": 1992, "pin_cites": [ { "parenthetical": "unpublished" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 527, "char_count": 12263, "ocr_confidence": 0.713, "pagerank": { "raw": 2.1077193646190259e-07, "percentile": 0.7627255488640458 }, "sha256": "fe552c05c1f6d09fe59c602a1e7c09f2fc672fe1b538da5780749b4de0690493", "simhash": "1:1031d5e06ea59348", "word_count": 1943 }, "last_updated": "2023-07-14T22:38:55.005039+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges JOHNSON and MARTIN concur." ], "parties": [ "BRENDA DIGGS v. ARTHUR DIGGS" ], "opinions": [ { "text": "McCRODDEN, Judge.\nWe face two questions in this case: I. If a separation agreement, incorporated into a divorce decree, bars an equitable distrib\u00fation proceeding, does the superior court have jurisdiction to partition property included in the separation agreement? II. Assuming the answer to I is affirmative, did the petitioner waive her right to partition by entering into the agreement?\nThe facts are as follows. Petitioner and respondent were married on 26 March 1971. During the course of the marriage, they acquired the house in question, taking title as tenants by the entirety. Subsequently, petitioner and respondent separated and, on 5 March 1990, entered into a separation agreement (the Agreement) which provided that the respondent:\n[S]hall continue to occupy the marital residence, located at 10 Ballard Drive, Prince George Estates, Castle Hayne, North Carolina. [Respondent] shall be responsible for making the mortgage payment while living in the marital home. Should this property be placed on the market for sale [respondent] and [petitioner] shall divide equally any proceeds from the sale.\nOn 19 March 1991, petitioner filed a complaint for absolute divorce, requesting that the Agreement be incorporated into the divorce decree and that the court exercise its jurisdiction and hold an equitable distribution proceeding at a later date. Respondent answered and moved for summary judgment on petitioner\u2019s claim for equitable distribution. Following a hearing on 9 August 1991, District Court Judge Jacqueline Morris-Goodson granted respondent\u2019s motion for summary judgment on the equitable distribution claim, dismissed that claim, and entered a judgment of absolute divorce, incorporating the Agreement.\nPetitioner appealed the dismissal of her equitable distribution action to this Court. This Court held that the Agreement \u201creveals the parties\u2019 desire for a full and final disposition of their marital property which is binding on the Court,\u201d and affirmed the entry of summary judgment in respondent\u2019s favor. Diggs v. Diggs, 106 N.C. App. 394, 417 S.E.2d 854 (1992) (unpublished).\nOn 16 June 1992, petitioner filed a petition to partition the parties\u2019 marital home with the New Hanover County Clerk of Superior Court. Respondent filed his answer on 29 June 1992, and on 2 July 1992, filed a motion to dismiss, alleging that the superior court lacked subject matter jurisdiction to partition the property and that the Agreement precluded partition of the property. The clerk entered an order on 4 August 1992, denying respondent\u2019s motion to dismiss for lack of subject matter jurisdiction but also denying petitioner\u2019s petition, on the ground that petitioner had waived her right to partition in the Agreement. Petitioner appealed to the superior court.\nThe superior court judge held a hearing in the matter on 24 August 1992. On its own motion, the court converted the hearing to one on a motion for summary judgment. After arguments and evidence, the court denied respondent\u2019s motion to dismiss for lack of subject matter jurisdiction, found that the Agreement was not effective to waive petitioner\u2019s right to partition because it contained no limit on the time within which the waiver was to be effective, and granted summary judgment on petitioner\u2019s petition for partition.\nI.\nRespondent argues that the superior court lacked subject matter jurisdiction to hold the partition proceeding because the district court has exclusive jurisdiction to enforce separation agreements. We disagree.\n\u201cA valid separation agreement that waives rights to equitable distribution will be honored by the courts and will be binding upon the parties.\u201d Hagler v. Hagler, 319 N.C. 287, 290, 354 S.E.2d 228, 232 (1987). \u201c[I]n the absence of an equitable distribution of entireties property under N.C.G.S. \u00a7 50-20, an ex-spouse (now tenant in common) retains the right to possession and the right to alienate and may bring an action for waste, ejectment, accounting, or partition.\u201d Id. at 292, 354 S.E.2d at 233. In Hagler, the plaintiff-husband was granted summary judgment on the defendant-wife\u2019s request for an equitable distribution. The Supreme Court upheld the entry of summary judgment on the ground that a separation agreement signed by the parties evinced an intention to make a complete disposition of their respective property rights and barred a subsequent claim for equitable distribution.\nIn the prior appeal of this case, this Court held that the Agreement precluded petitioner from having a proceeding for equitable distribution. This is the law of the case. See N.C.N.B. v. Virginia Carolina Builders, 307 N.C. 563, 566, 299 S.E.2d 629, 631 (1983). Nonetheless, under Hagler, petitioner would be entitled to bring an action for partition of the house that she owns as a tenant in common with respondent. A co-tenant may only obtain partition \u201cby petition to the superior court.\u201d N.C. Gen. Stat. \u00a7 46-3 (Supp. 1993).\nRespondent counters by citing the case Garrison v. Garrison, 90 N.C. App. 670, 369 S.E.2d 628 (1988), for the proposition that the superior court has no authority to partition marital property once the jurisdiction of the district court has been invoked by a request for equitable distribution. Garrison, however, is distinguishable.\nIn Garrison, the respondent-wife requested an equitable distribution in her answer to her husband\u2019s complaint for divorce. The trial court entered a judgment of divorce but left the equitable distribution proceeding pending. Subsequently, the petitioner-husband sought partition of the marital home. This Court held:\nThe superior court has no authority to partition marital property pursuant to the provisions of G.S. 46-1 et seq. where, as here, the jurisdiction of the district court has been properly invoked to equitably distribute such marital property. Had the parties not asserted their right to have the property equitably distributed pursuant to G.S. 50-20, either tenant in common could have filed a special proceeding to have the property partitioned as provided by G.S. 46-1 et seq.\nId. at 672, 369 S.E.2d at 629 (emphasis added). In the instant case, petitioner tried but failed to invoke the jurisdiction of the district court for equitable distribution of the parties\u2019 marital property. Therefore, under Hagler and Garrison, the superior court had subject matter jurisdiction to hear the proceeding for the partition of the subject property. We reject respondent\u2019s first assignments of error.\nII.\nRespondent next argues that the trial court erred in granting summary judgment in petitioner\u2019s favor because she had waived her right to partition by entering into the Agreement. We find that the Agreement was effective to waive the parties\u2019 right to partition.\nUpon divorce; former tenants by the entireties become tenants in common, Hagler 319 N.C. at 292, 354 S.E.2d at 233, and are entitled to partition as a matter of right. Coats v. Williams, 261 N.C. 692, 695, 136 S.E.2d 113, 115 (1964). However, a cotenant may, by express or implied agreement, waive this right for a reasonable time. Properties, Inc. v. Cox, 268 N.C. 14, 19, 149 S.E.2d 553, 557 (1966). A separation agreement may contain such a waiver. Hepler v. Burnham, 24 N.C. App. 362, 210 S.E.2d 509 (1975).\nIn Winborne v. Winborne, 54 N.C. App. 189, 282 S.E.2d 487 (1981), this Court, relying on Hepler, found that the parties to a separation agreement had implicitly waived their right to a partition. The separation agreement in that case provided that \u201c[tjhe parties own a home as \u2018tenants by the entirety,\u2019 in which husband will continue to live and make payments.\u201d Winborne, 54 N.C. App. at 189, 282 S.E.2d at 488. The Court found that this agreement was indistinguishable from the one considered in Hepler, in that \u201cthe gravamen of the separation agreement as to the disposition of the entirety property is that the respondent will be allowed to live in the house so long as he or she meets certain conditions.\u201d Id. at 190, 282 S.E.2d at 488. The only condition of the Winbome respondent\u2019s right to occupy the house was that he continue to make payments on the house.\nInsofar as the property held in tenancy in common is concerned, the language of the Agreement in this case is strikingly similar to the agreement in Winbome. Here the Agreement gives respondent the right to occupy the house and requires that he make payments on the house. As in Winbome, there is no dispute that respondent has met the only condition on his right to occupy the house, i.e. he has made all the required payments on the house. We believe that Winbome controls our decision concerning petitioner\u2019s waiver of equitable distribution rights.\nThe final question we address is whether, as the trial court found, the silence of the agreement as to a time limitation for the waiver made such waiver ineffective. In McDowell v. McDowell, 61 N.C. App. 700, 301 S.E.2d 729 (1983), this Court considered a separation agreement which contained no explicit limit on the time within which the right to partition had to be exercised. We found that the length of the respondent\u2019s life implicitly limited the time, found that \u201can agreement providing for the wife\u2019s continued possession of property for her life is valid and not subject to attack as an unreasonable restraint on alienation,\u201d and concluded, therefore, that the provision was enforceable. Id. at 704, 301 S.E.2d at 731.\nIn this case, the respondent\u2019s right to occupy the house can last no longer than his lifetime, thus implicitly limiting the duration of the waiver of the right to partition. The Agreement did not unreasonably limit the petitioner\u2019s right to partition and was effective to waive that right. Hence, the trial court erred in not dismissing the petition to partition. We vacate its judgment.\nVacated.\nJudges JOHNSON and MARTIN concur.", "type": "majority", "author": "McCRODDEN, Judge." } ], "attorneys": [ "Pennington & Wicks, by Ralph S. Pennington and Ellen Arnold Kieman, for respondent-appellant.", "Smith & Smith, by W.G. Smith and Walter M. Smith, for petitioner-appellee." ], "corrections": "", "head_matter": "BRENDA DIGGS v. ARTHUR DIGGS\nNo. 935SC124\n(Filed 16 August 1994)\n1. Partition \u00a7 36 (NCI4th)\u2014 equitable distribution proceeding barred by separation agreement \u2014 partition proceeding \u2014 jurisdiction of superior court\nWhere the parties\u2019 separation agreement, incorporated into their divorce decree, barred an equitable distribution proceeding, the superior court had jurisdiction to partition property included in the separation agreement, and there was no merit to respondent\u2019s contention that the district court had exclusive jurisdiction to enforce separation agreements.\nAm Jur 2d, Partition \u00a7 102.\n2. Divorce and Separation \u00a7 19 (NCI4th)\u2014 tenants in common \u2014 right to partition waived by separation agreement\u2014 time limit on waiver implied\nPetitioner waived her right to partition a house owned by petitioner and respondent as tenants in common and occupied by respondent where the parties entered into a separation agreement which provided that respondent would remain in the house and be responsible for making mortgage payments; respondent met the only condition on his right to occupy the house by making all the required payments; and the silence of the agreement as to a time limitation for the waiver did not make such waiver ineffective, as respondent\u2019s lifetime implicitly limited the duration of the waiver of the right to partition.\nAm Jur 2d, Divorce and Separation \u00a7\u00a7 838 et seq.\nAppeal by respondent from judgment entered 15 September 1992 by Judge George K. Butterfield in New Hanover County Superior Court. Heard in the Court of Appeals 9 December 1993.\nPetitioner filed a petition against her ex-husband for partition of a house owned by petitioner and respondent as tenants in common and occupied by respondent. Respondent answered and moved, pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 12(b)(1) (1990), to dismiss the petition for lack of subject matter jurisdiction. The Clerk of New Hanover County Superior Court granted the motion to dismiss and petitioner appealed to the Superior Court. Respondent again moved to dismiss the petition for lack of subject matter jurisdiction. The superior court heard arguments, denied respondent\u2019s motion to dismiss, and granted summary judgment in petitioner\u2019s favor. From this order, respondent appeals.\nPennington & Wicks, by Ralph S. Pennington and Ellen Arnold Kieman, for respondent-appellant.\nSmith & Smith, by W.G. Smith and Walter M. Smith, for petitioner-appellee." }, "file_name": "0095-01", "first_page_order": 125, "last_page_order": 130 }