{ "id": 11144189, "name": "TED A. RIVIERE, Plaintiff v. CATHERINE SCISCENTI RIVIERE, Defendant", "name_abbreviation": "Riviere v. Riviere", "decision_date": "1999-07-20", "docket_number": "No. COA98-635", "first_page": "302", "last_page": "307", "citations": [ { "type": "official", "cite": "134 N.C. App. 302" } ], "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": "204 S.E.2d 203", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "pin_cites": [ { "page": "205" } ], "opinion_index": 0 }, { "cite": "21 N.C. App. 287", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8555637 ], "year": 1974, "pin_cites": [ { "page": "290" } ], "opinion_index": 0, "case_paths": [ "/nc-app/21/0287-01" ] }, { "cite": "306 S.E.2d 513", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "515" } ], "opinion_index": 0 }, { "cite": "63 N.C. App. 708", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526143 ], "year": 1983, "pin_cites": [ { "page": "712" } ], "opinion_index": 0, "case_paths": [ "/nc-app/63/0708-01" ] }, { "cite": "496 S.E.2d 607", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "610" } ], "opinion_index": 0 }, { "cite": "128 N.C. App. 716", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11656753 ], "year": 1998, "pin_cites": [ { "page": "720" } ], "opinion_index": 0, "case_paths": [ "/nc-app/128/0716-01" ] }, { "cite": "356 S.E.2d 378", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "383" } ], "opinion_index": 0 }, { "cite": "86 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12121342 ], "year": 1987, "pin_cites": [ { "page": "8" } ], "opinion_index": 0, "case_paths": [ "/nc-app/86/0001-01" ] }, { "cite": "324 S.E.2d 829", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1985, "pin_cites": [ { "page": "833" } ], "opinion_index": 0 }, { "cite": "312 N.C. 770", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4755941 ], "year": 1985, "pin_cites": [ { "page": "777" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0770-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 50-16.11", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1987, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 50-16.8", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 1995, "pin_cites": [ { "page": "(f)" }, { "page": "357" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7\u00a7 50-16.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "pin_cites": [ { "page": "(1)" } ], "opinion_index": 0 }, { "cite": "442 S.E.2d 149", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1994, "pin_cites": [ { "page": "152", "parenthetical": "quoting N.C. Gen. Stat. \u00a7\u00a7 50-16.1(1),(2) (1995)" }, { "page": "153", "parenthetical": "citations omitted" }, { "page": "153" } ], "opinion_index": 0 }, { "cite": "114 N.C. App. 352", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527565 ], "weight": 3, "year": 1994, "pin_cites": [ { "page": "356", "parenthetical": "quoting N.C. Gen. Stat. \u00a7\u00a7 50-16.1(1),(2) (1995)" }, { "page": "358" } ], "opinion_index": 0, "case_paths": [ "/nc-app/114/0352-01" ] }, { "cite": "221 S.E.2d 490", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "289 N.C. 109", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566827 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc/289/0109-01" ] }, { "cite": "232 S.E.2d 184", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "192" } ], "opinion_index": 0 }, { "cite": "291 N.C. 451", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558677 ], "year": 1977, "pin_cites": [ { "page": "465" } ], "opinion_index": 0, "case_paths": [ "/nc/291/0451-01" ] } ], "analysis": { "cardinality": 547, "char_count": 12804, "ocr_confidence": 0.759, "pagerank": { "raw": 1.383974559533178e-07, "percentile": 0.6411151769852219 }, "sha256": "686bad815760d7bd41da0365983b9ccdea97fed17fc5e66857fb8f96b268cf5d", "simhash": "1:67e374661e4ecf5c", "word_count": 2067 }, "last_updated": "2023-07-14T15:28:46.713894+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges LEWIS and WALKER concur." ], "parties": [ "TED A. RIVIERE, Plaintiff v. CATHERINE SCISCENTI RIVIERE, Defendant" ], "opinions": [ { "text": "TIMMONS-GOODSON, Judge.\nTed A. Riviere (\u201cplaintiff\u2019) appeals from a judgment filed 26 February 1998 in Cleveland County District Court, denying his motion to require his former wife, Catherine Sciscenti Riviere (\u201cdefendant\u201d) to return the alimony pendente lite paid to her and the attorneys\u2019 fees. Because the trial court erred when it concluded that no final judgment had been entered denying alimony, we reverse the trial court\u2019s order.\nOn 31 August 1992, plaintiff filed a complaint for divorce from bed and board from defendant. Subsequently, defendant filed an answer and counterclaim on 13 October 1992, seeking equitable distribution, permanent alimony, alimony pendente lite, and attorneys\u2019 fees. Defendant alleged two grounds for alimony: (1) adultery and (2) abandonment. Plaintiff never filed a reply to defendant\u2019s counterclaim.\nA hearing regarding alimony pendente lite was held on 26 October 1992. After an in chambers meeting, the parties stipulated in open court that grounds existed for alimony pendente lite and the trial court ordered plaintiff to pay defendant alimony pendente lite in the amount of $1,000.00 per month. On 2 July 1993, plaintiff filed a motion to reduce his alimony pendente lite payments. This motion was denied on 16 July 1993.\nWhen the equitable distribution matter was called for trial on 14 October 1996, the parties announced to the court that they had resolved the issue and consented to the court entering an order based upon their agreement. The court examined plaintiff and defendant individually about their understanding of the agreement, their satisfaction with counsel, and their willingness to be bound by the agreement. Following the examination of the parties, the court approved the agreement as a fair and equitable distribution of all marital property.\nOn 9 December 1996, the date defendant\u2019s motion for permanent alimony was to be heard, defendant filed a voluntary dismissal with prejudice, pursuant to North Carolina General Statutes section 1A-1, Rule 41(a) (1990), of her alimony claim. More than one year later, plaintiff filed a motion for recoupment of approximately $50,000.00 in pendente lite payments pursuant to North Carolina General Statutes section 50-16.11 (1995).\nOn 24 February 1998, the trial court denied plaintiff\u2019s motion, stating that plaintiff was not entitled to relief because there was \u201cno final judgment entered . . . denying alimony because none of the grounds specified in North Carolina General Statute Section [sic] 50-16.2 exist.\u201d Plaintiff appeals the order.\nThe issues presented by this appeal are: (i) whether defendant\u2019s voluntary dismissal with prejudice of her permanent alimony counterclaim was invalid because it was a fraudulent manipulation of the rules of civil procedure; and (ii) whether the trial court had the authority to determine whether recoupment of pendente lite payments was appropriate following a voluntary dismissal with prejudice by defendant of her permanent alimony counterclaim.\nPlaintiff in his first assignment of error argues that defendant\u2019s voluntary dismissal with prejudice should not have been allowed as it was a sham and a fraudulent manipulation of the rules of civil procedure. As a result, plaintiff argues that he should have been returned to the status quo mandating a recoupment of his alimony pendente lite payments. Defendant counters that the voluntary dismissal was not fraudulent because she was merely applying the currently existing statutes and rules of law. We agree with defendant.\nRule 41(a)(1) of the Rules of Civil Procedure, provides in pertinent part that \u201can action or any claim therein may be dismissed by the plaintiff without order of court (i) by filing a notice of dismissal at any time before the plaintiff rests his case, or; (ii) by filing a stipulation of dismissal signed by all parties who have appeared in the action.\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 41(a)(1) (1990). Where the language of a statute is clear and unambiguous, this Court is bound by the plain language of the statute. Utilities Comm. v. Edmisten Atty. General, 291 N.C. 451, 465, 232 S.E.2d 184, 192 (1977). The plain language of Rule 41(a)(1) vests a party with the absolute authority to dismiss any of his claims at any time before he rests his case. That is exactly what defendant did in this matter. She dismissed her counterclaim for permanent alimony after she and plaintiff had by consent settled the issue of equitable distribution. Defendant may have no longer considered herself \u201cdependent\u201d or thought she was unlikely to qualify as a \u201cdependent spouse\u201d based on the recent division of marital property. In any event, there is no evidence to support plaintiff\u2019s allegation of fraudulent manipulation or bad faith on the part of defendant.\nWe acknowledge that under McCarley v. McCarley, 289 N.C. 109, 221 S.E.2d 490 (1976), defendant could not voluntarily dismiss her action for permanent alimony without plaintiff\u2019s consent if plaintiff had a pending action which arose out of the same transaction. We reject plaintiff\u2019s argument that his appearance in court to litigate the case, his requests to reduce alimony pendente lite, and the reservation of funds in the equitable distribution judgment were sufficient to establish grounds to have his recoupment claim heard. Here, at the time defendant filed the voluntary dismissal of her counterclaim for permanent alimony, plaintiff had filed no reply nor was there any other pending matter. Therefore, defendant was free to file her voluntary dismissal of the permanent alimony counterclaim without permission of the court or notice to plaintiff. This assignment of error is overruled.\nPlaintiff next argues that the trial court erred in ruling that plaintiffs alimony pendente lite payments were not refundable for \u201c[t]here was no final judgment entered . . . denying alimony because none of the grounds specified in North Carolina General Statute Section [sic] 50-16.2 exist.\u201d Defendant counters that a voluntary dismissal was not a final judgment since there was no determination of whether any of the fault grounds stated in North Carolina General Statutes section 50-16 existed. We agree with plaintiff.\nAlimony pendente lite is defined as a court ordered \u201cpayment for the support and maintenance of a spouse\u201d pending \u201cthe final judgment of divorce in an action for divorce, whether absolute or from bed and board, or in an action for annulment, or on the merits in an action for alimony without divorce.\u201d Wyatt v. Hollifield, 114 N.C. App. 352, 356, 442 S.E.2d 149, 152 (1994) (quoting N.C. Gen. Stat. \u00a7\u00a7 50-16.1(1),(2) (1995)). \u201cAt the pendente lite hearing, both parties must be given an opportunity to offer evidence \u2018orally, upon affidavit, verified pleading, or other proof,\u2019 and the trial judge is to \u2018find the facts from the evidence so presented.\u2019 \u201d Id. (quoting N.C. Gen. Stat. \u00a7 50-16.8(f) (1995)). The spouse seeking alimony pendente lite, if he or she also claims an entitlement to \u201cabsolute divorce, divorce from bed and board, annulment, or alimony without divorce,\u201d has the burden of showing that (1) he or she is a \u201cdependent spouse\u201d as defined in North Carolina General Statutes section 50-16.1(3) (1995); (2) that there is a \u201clikelihood of success on the merits\u201d with regard to his or her action for \u201cabsolute divorce, divorce from bed and board, annulment, or alimony without divorce\u201d under North Carolina General Statutes section 50-16.3(a)(l) (1995); and (3) he or she has, pursuant to North Carolina General Statutes section 50-16.3(a)(2) (1995), \u201c [insufficient means whereon to subsist during the prosecution . . . of the suit and to defray the necessary expenses thereof.\u201d Id. at 357, 442 S.E.2d at 153 (citations omitted).\nPlaintiff seeks reimbursement pursuant to section 50-16.11 of the alimony pendente lite he paid defendant. Section 50-16.11, in pertinent part, states:\nupon motion by the supporting spouse, if a final judgment is entered in any action denying alimony because none of the grounds specified in G.S. 50-16.2 exists, the court may enter a judgment against the spouse to whom the payments were made for the amount of alimony pendente lite paid by the supporting spouse to that spouse pending a final disposition of the case.\nN.C. Gen. Stat. \u00a7 50-16.11 (1987) (repealed by 1995 N.C. Sess. Laws ch. 319, \u00a7 1).\nIt is within the discretion of the trial court to determine whether or not to order recoupment of alimony pendente lite payments. Hollifield, 114 N.C. App. at 358, 442 S.E.2d at 153. Appellate review of matters left to the discretion of the trial court is limited to a determination of whether there was a clear abuse of discretion. White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985). A trial court has abused its discretion if its ruling is \u201cso arbitrary that it could not have been the result of a reasoned decision.\u201d Id.\nRule 41(a)(1) states that plaintiff may voluntarily dismiss his action without permission of the court by filing a notice of dismissal at any time before resting his case. N.C.G.S. \u00a7 1A-1, Rule 41(a)(1). The rule further provides that dismissal is without prejudice, unless otherwise stated, allowing plaintiff to commence a new action based on the same claim within one year. Id. A dismissal taken with prejudice indicates a disposition on the merits which precludes subsequent litigation to the same extent as if the action had been prosecuted to a final adjudication. Johnson v. Bollinger, 86 N.C. App. 1, 8, 356 S.E.2d 378, 383 (1987). Thus, it is well settled in this state that a voluntary dismissal with prejudice is a final judgment on the merits. Caswell Realty Assoc. v. Andrews Co., 128 N.C. App. 716, 720, 496 S.E.2d 607, 610 (1998); Kabatnik v. Westminster Co., 63 N.C. App. 708, 712, 306 S.E.2d 513, 515 (1983); Barnes v. McGee, 21 N.C. App. 287, 290, 204 S.E.2d 203, 205 (1974).\nBased on the foregoing principles, we conclude that when defendant voluntarily dismissed with prejudice her claim for permanent alimony based on adultery and abandonment, she conceded that none of the grounds entitling her to permanent alimony pursuant to section 50-16.2 existed. Such a dismissal was a final judgment on the merits with res judicata implications. The trial court should have conducted a hearing and considered evidence relating to whether in his discretion plaintiff should recoup the alimony pendente lite paid. See Hollifield, 114 N.C. App. 352, 442 S.E.2d 149.\nThe record appears to indicate that the trial court made its decision to deny plaintiffs motion for the return of alimony pendente lite payments based on the misapprehension of the law that a voluntary dismissal with prejudice was not a final judgment. This was error and in contradiction to the laws of this state. Therefore, we conclude that the trial court\u2019s decision amounted to an abuse of discretion.\nBased on the foregoing, we reverse the holding of the trial court and remand this matter for further proceedings consistent with this opinion.\nREVERSED.\nJudges LEWIS and WALKER concur.", "type": "majority", "author": "TIMMONS-GOODSON, Judge." } ], "attorneys": [ "Lamb Law Offices, P.A., by William E. Lamb, Jr. and Wendy Joyce Terry, for plaintiff-appellant.", "Mann, Vonkallist and Young, P.A., by Christy T. Mann, for defendant-appellee." ], "corrections": "", "head_matter": "TED A. RIVIERE, Plaintiff v. CATHERINE SCISCENTI RIVIERE, Defendant\nNo. COA98-635\n(Filed 20 July 1999)\n1. Divorce\u2014 alimony \u2014 voluntary dismissal \u2014 recoupment of pendente lite payments\nA voluntary dismissal of a counterclaim for permanent alimony after alimony pendente lite was paid was not a sham or a fraudulent manipulation of the Rules of Civil Procedure as contended by plaintiff in his effort to recoup the payments. The plain language of N.C.G.S. \u00a7 1A-1, Rule 41(a)(1) vests parties with the absolute authority to dismiss any of their claims at any time before they rest their case, plaintiff had filed no reply, there was no pending matter, and defendant was free to file her voluntary dismissal without permission of the court or notice to plaintiff.\n2. Divorce\u2014 alimony pendente lite \u2014 motion to recoup \u2014 final alimony judgment \u2014 factors considered\nThe trial court erred by denying a motion to recoup alimony pendente lite payments following a voluntary dismissal of an alimony claim where the court appeared to base its decision on the misapprehension that a voluntary dismissal with prejudice was not a final judgment. When defendant voluntarily dismissed with prejudice her claim for permanent alimony based on adultery and abandonment, she conceded that none of the grounds entitling her to permanent alimony pursuant to N.C.G.S. \u00a7 50-16.2 existed. Such a dismissal was a final judgment on the merits.\nAppeal by plaintiff from judgment entered 24 February 1998 by Judge Larry J. Wilson in Cleveland County District Court. Heard in the Court of Appeals 13 January 1999.\nLamb Law Offices, P.A., by William E. Lamb, Jr. and Wendy Joyce Terry, for plaintiff-appellant.\nMann, Vonkallist and Young, P.A., by Christy T. Mann, for defendant-appellee." }, "file_name": "0302-01", "first_page_order": 334, "last_page_order": 339 }