{ "id": 9252040, "name": "DIANE WILSON BOWEN, Executrix of the Estate of BRUCE PICKETT WILSON, Plaintiff v. PAMELA Y. MABRY, Executrix of the Estate of JOSEPHINE DOWNER WILSON, Defendant", "name_abbreviation": "Bowen v. Mabry", "decision_date": "2002-12-17", "docket_number": "No. COA02-357", "first_page": "734", "last_page": "737", "citations": [ { "type": "official", "cite": "154 N.C. App. 734" } ], "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": "14 S.E.2d 833", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1941, "pin_cites": [ { "page": "835", "parenthetical": "a claim is pending from the time it is commenced until its final determination" } ], "opinion_index": 0 }, { "cite": "219 N.C. 731", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626200 ], "year": 1941, "pin_cites": [ { "page": "734", "parenthetical": "a claim is pending from the time it is commenced until its final determination" } ], "opinion_index": 0, "case_paths": [ "/nc/219/0731-01" ] }, { "cite": "470 S.E.2d 552", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1996, "pin_cites": [ { "page": "555-56", "parenthetical": "an amended statute can be used to clarify legislative intent of the statute that was amended" } ], "opinion_index": 0 }, { "cite": "122 N.C. App. 429", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11917624 ], "year": 1996, "pin_cites": [ { "page": "435-36", "parenthetical": "an amended statute can be used to clarify legislative intent of the statute that was amended" } ], "opinion_index": 0, "case_paths": [ "/nc-app/122/0429-01" ] }, { "cite": "89 S.E.2d 592", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1955, "pin_cites": [ { "page": "594" } ], "opinion_index": 0 }, { "cite": "242 N.C. 696", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8621774 ], "year": 1955, "pin_cites": [ { "page": "698" } ], "opinion_index": 0, "case_paths": [ "/nc/242/0696-01" ] }, { "cite": "268 S.E.2d 468", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1980, "pin_cites": [ { "page": "471", "parenthetical": "statute cannot be applied retrospectively if it \"will interfere with rights that have 'vested' \"" }, { "page": "471" } ], "opinion_index": 0 }, { "cite": "300 N.C. 715", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564683 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "718-19", "parenthetical": "statute cannot be applied retrospectively if it \"will interfere with rights that have 'vested' \"" }, { "page": "718-19" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0715-01" ] }, { "cite": "511 U.S. 298", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1147463 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "313" }, { "page": "289" } ], "opinion_index": 0, "case_paths": [ "/us/511/0298-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 50-20", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "pin_cites": [ { "page": "(1)", "parenthetical": "the Act" } ], "opinion_index": 0 }, { "cite": "539 S.E.2d 621", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "353 N.C. 220", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135732 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/nc/353/0220-01" ] } ], "analysis": { "cardinality": 407, "char_count": 7768, "ocr_confidence": 0.78, "pagerank": { "raw": 4.0466395349353287e-07, "percentile": 0.9076034934855275 }, "sha256": "cbfafd397516d4c9337df9076044e2f8e0b34c7643997ce4f046095ccc15ede6", "simhash": "1:0304144467ff9db2", "word_count": 1268 }, "last_updated": "2023-07-14T14:30:59.212861+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge EAGLES and Judge MARTIN concur." ], "parties": [ "DIANE WILSON BOWEN, Executrix of the Estate of BRUCE PICKETT WILSON, Plaintiff v. PAMELA Y. MABRY, Executrix of the Estate of JOSEPHINE DOWNER WILSON, Defendant" ], "opinions": [ { "text": "GREENE, Judge.\nDiane Wilson Bowen (Plaintiff), as the executrix of the estate of Bruce Pickett Wilson (Mr. Wilson), appeals from an order dated 15 November 2001 dismissing Mr. Wilson\u2019s claims for divorce and equitable distribution against Josephine Downer Wilson (Mrs. Wilson).\nOn 14 September 2000, Mr. Wilson filed a complaint against Mrs. Wilson setting out claims for absolute divorce and equitable distribution. This complaint alleged the date of separation of the parties to be 9 August 1999. On 27 October 2000, Mrs. Wilson filed an answer alleging the actual date of separation was 2 January 2000 and counterclaimed for divorce and equitable distribution based on the alleged 9 August 1999 date of separation. The parties later determined the actual date of separation was 2 January 2000 and amended their pleadings accordingly. Mr. Wilson thereafter voluntarily dismissed his divorce action on 6 December 2000, leaving the equitable distribution claim pending and on 8 January 2001, re-filed his divorce action. Upon discovering Mrs. Wilson was seriously ill and not alert, Mr. Wilson\u2019s attorney delayed service of the summons and complaint until after her condition improved. Consequently, Mrs. Wilson was not served with the summons and complaint until 30 January 2001.\nMr. Wilson died on 15 February 2001, and a consent order allowing Plaintiff to be substituted for Mr. Wilson was filed on 1 March 2001. Mrs. Wilson filed a motion to dismiss both the divorce and equitable distribution actions on 2 October 2001 based on Mr. Wilson\u2019s death prior to entry of judgment. The trial court, relying on Brown v. Brown, 353 N.C. 220, 539 S.E.2d 621 (2000), concluded Plaintiff\u2019s equitable distribution and divorce claims abated upon Mr. Wilson\u2019s death, were not governed by N.C. Gen. Stat. \u00a7 50-20(1) (the Act), and entered a dismissal of the case.\nThe dispositive issue is whether the Act is to be applied retroactively so as to preclude the application of Brown to Plaintiff\u2019s claim.\nIn Brown our Supreme Court held that an equitable distribution claim abated, if no divorce had been entered, upon the death of either husband or wife. Id. Subsequent to Brown, the North Carolina General Assembly amended section 50-20 to provide that \u201cpending action[s] for equitable distribution shall not abate upon the death of a party.\u201d N.C.G.S. \u00a7 50-20(1) (2001). The Act was titled: \u201cAn Act To Clarify That An Action For Equitable Distribution Does Not Abate Upon The Death Of A Party.\u201d 2001 N.C. Sess. Laws ch. 364. The Act \u201capplies to actions pending or filed on or after\u201d 10 August 2001. 2001 N.C. Sess. Laws ch. 364, \u00a77.\nDefendant argues based on Brown that Plaintiff\u2019s equitable distribution claim abated on 15 February 2001, the date of Mr. Wilson\u2019s death, and thus was not pending at the time the Act became effective. It follows, Defendant contends, the Act does not apply so as to save Plaintiff\u2019s claim. We disagree. The General Assembly \u201chas the power to amend a statute that it believes has been misconstrued by the courts . . . and thereby undo any perceived undesirable past consequences of misinterpretation of its work product.\u201d 82 C.J.S. Statutes \u00a7 411, at 568 (1999); see also Rivers v. Roadway Express, Inc., 511 U.S. 298, 313, 128 L. Ed. 2d 274, 289 (1994). This act \u201cdeclaring the proper construction of a former statute is given retroactive operation\u201d unless such retroactive application impairs \u201cvested rights.\u201d 82 C.J.S. Statutes \u00a7 411, at 568-69; see Gardner v. Gardner, 300 N.C. 715, 718-19, 268 S.E.2d 468, 471 (1980) (statute cannot be applied retrospectively if it \u201cwill interfere with rights that have \u2018vested\u2019 \u201d). A vested right is a right \u201cwhich is otherwise secured, established, and immune from further legal metamorphosis.\u201d Gardner, 300 N.C. at 718-19, 268 S.E.2d at 471. Thus, a lawfully entered judgment is a vested right. See Dellinger v. Bollinger, 242 N.C. 696, 698, 89 S.E.2d 592, 594 (1955).\nIn this case, the General Assembly in enacting the Act made clear its intent that section 50-20, as it existed before enactment of the Act, did not mandate abatement of a pending equitable distribution action upon the death of a party. See Al Smith Buick Co. v. Mazda Motor of America, 122 N.C. App. 429, 435-36, 470 S.E.2d 552, 555-56 (1996) (an amended statute can be used to clarify legislative intent of the statute that was amended). This intent is manifest in the title of the Act where the General Assembly notes its desire to \u201cclarify\u201d section 50-20. Id. Thus, the General Assembly declared the proper construction of its equitable distribution statute, rejecting the construction placed on section 50-20 by the Brown decision. This clarification is entitled to retroactive application unless it impacts a vested right. In this case, Defendant would suffer no impairment of a vested right if the Act is applied retroactively: There has been no judgment dismissing Plaintiff\u2019s claim entered prior to the effective date of the Act, and the abatement of an action is not a right \u201cimmune from . . . legal metamorphosis.\u201d As no final determination of Plaintiffs equitable distribution claim had occurred, the claim was still pending on the effective date of the Act. See McFetters v. McFetters, 219 N.C. 731, 734, 14 S.E.2d 833, 835 (1941) (a claim is pending from the time it is commenced until its final determination); see also 2001 N.C. Sess. Laws ch. 354, \u00a77. Accordingly, the Act applies to preserve Plaintiffs claim and the trial court erred in dismissing Plaintiffs equitable distribution claim.\nReversed and remanded.\nChief Judge EAGLES and Judge MARTIN concur.\n. Mrs. Wilson died during the pendency of this appeal. Pamela Y. Mabry (Defendant), as Executrix of the Estate of Mrs. Wilson, was substituted as a party to this case on motion of the Plaintiff. See N.C.R. App. P. 38.\n. Although Plaintiff appealed the trial court\u2019s dismissal of the divorce claim, she makes no assignment of error on this ground and does not argue this issue in her brief to this Court.\n. Indeed, the General Assembly specifically noted its intent for the Act to be applied retroactively. 2001 N.C. Sess. Laws ch. 364, \u00a77 (applies to pending cases).\n. Because a final judgment had been entered in Brown, that decision is binding on the parties to that case and any other case where a final judgment has been entered dismissing the equitable distribution claim based on abatement.", "type": "majority", "author": "GREENE, Judge." } ], "attorneys": [ "Biesecker, Tripp, Sink & Fritts, L.L.P., by Max R. Rodden, for plaintiff appellant.", "JonW. Myers for defendant appellee." ], "corrections": "", "head_matter": "DIANE WILSON BOWEN, Executrix of the Estate of BRUCE PICKETT WILSON, Plaintiff v. PAMELA Y. MABRY, Executrix of the Estate of JOSEPHINE DOWNER WILSON, Defendant\nNo. COA02-357\n(Filed 17 December 2002)\nDivorce\u2014 equitable distribution \u2014 death of husband while action pending\nThe trial court erred by dismissing plaintiff executrix\u2019s equitable distribution claim on behalf of decedent husband even though no divorce had been entered upon the death of the husband on 15 February 2001 and even though amended N.C.G.S. \u00a7 50-20 provides that it applies to actions pending or filed on or after 10 August 2001, because: (1) the General Assembly clarified its intent that N.C.G.S. \u00a7 50-20 did not mandate abatement of a pending equitable distribution action upon the death of a party; and (2) this clarification is entitled to retroactive application unless it impacts a vested right, and defendant would suffer no impairment of a vested right as no final determination of plaintiff\u2019s equitable distribution claim had occurred and the claim was still pending on the effective date of the statute.\nAppeal by plaintiff from order dated 15 November 2001 by Judge Jimmy L. Myers in Davidson County District Court. Heard in the Court of Appeals 12 November 2002.\nBiesecker, Tripp, Sink & Fritts, L.L.P., by Max R. Rodden, for plaintiff appellant.\nJonW. Myers for defendant appellee." }, "file_name": "0734-01", "first_page_order": 762, "last_page_order": 765 }