{ "id": 8301537, "name": "CHRISTOPHER P. STARK, Plaintiff v. JANAKI RATASHARA, Defendant", "name_abbreviation": "Stark v. Janaki Ratashara", "decision_date": "2006-05-02", "docket_number": "No. COA05-1119", "first_page": "449", "last_page": "452", "citations": [ { "type": "official", "cite": "177 N.C. App. 449" } ], "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": "330 S.E.2d 607", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "parenthetical": "\"Although the parties stipulated in a pre-trial conference 'that the court has jurisdiction of the parties and of the subject matter,' we find such to be ineffective in conferring jurisdiction upon the court.\"" } ], "opinion_index": 0 }, { "cite": "313 N.C. 598", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4720930, 4721031, 4723818, 4721579, 4725520 ], "year": 1985, "pin_cites": [ { "parenthetical": "\"Although the parties stipulated in a pre-trial conference 'that the court has jurisdiction of the parties and of the subject matter,' we find such to be ineffective in conferring jurisdiction upon the court.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/313/0598-04", "/nc/313/0598-05", "/nc/313/0598-01", "/nc/313/0598-03", "/nc/313/0598-02" ] }, { "cite": "325 S.E.2d 36", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "37" } ], "opinion_index": 0 }, { "cite": "72 N.C. App. 668", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527424 ], "year": 1985, "pin_cites": [ { "page": "670" } ], "opinion_index": 0, "case_paths": [ "/nc-app/72/0668-01" ] }, { "cite": "432 S.E.2d 176", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "177", "parenthetical": "\"the fact that both parties participated in the equitable distribution hearing does not save plaintiff. Jurisdiction over the subject matter cannot be conferred upon a court by consent, waiver or estoppel.\"" } ], "opinion_index": 0 }, { "cite": "111 N.C. App. 260", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521611 ], "year": 1993, "pin_cites": [ { "page": "262", "parenthetical": "\"the fact that both parties participated in the equitable distribution hearing does not save plaintiff. Jurisdiction over the subject matter cannot be conferred upon a court by consent, waiver or estoppel.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/111/0260-01" ] }, { "cite": "581 S.E.2d 793", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "797" } ], "opinion_index": 0 }, { "cite": "158 N.C. App. 441", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9188012 ], "year": 2003, "pin_cites": [ { "page": "447" } ], "opinion_index": 0, "case_paths": [ "/nc-app/158/0441-01" ] }, { "cite": "431 S.E.2d 805", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "111 N.C. App. 233", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521380 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc-app/111/0233-01" ] }, { "cite": "404 S.E.2d 871", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "328 N.C. 732", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2538019, 2539562, 2545331, 2540404, 2539003 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc/328/0732-03", "/nc/328/0732-02", "/nc/328/0732-01", "/nc/328/0732-04", "/nc/328/0732-05" ] }, { "cite": "399 S.E.2d 385", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "387-88" } ], "opinion_index": 0 }, { "cite": "101 N.C. App. 298", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527645 ], "year": 1991, "pin_cites": [ { "page": "301-03" } ], "opinion_index": 0, "case_paths": [ "/nc-app/101/0298-01" ] }, { "cite": "444 S.E.2d 177", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "178-79" } ], "opinion_index": 0 }, { "cite": "336 N.C. 473", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2536260 ], "year": 1994, "pin_cites": [ { "page": "474-77" } ], "opinion_index": 0, "case_paths": [ "/nc/336/0473-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 50-11", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2005, "opinion_index": 0 }, { "cite": "154 S.E.2d 71", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "pin_cites": [ { "page": "75" } ], "opinion_index": 0 }, { "cite": "270 N.C. 253", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566989 ], "year": 1967, "pin_cites": [ { "page": "258" } ], "opinion_index": 0, "case_paths": [ "/nc/270/0253-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 50-6", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "opinion_index": 0 } ], "analysis": { "cardinality": 385, "char_count": 8245, "ocr_confidence": 0.752, "pagerank": { "raw": 2.6861285501942707e-07, "percentile": 0.8270918497564916 }, "sha256": "025c564b521b91073ecac4a6fc69daec20fbdf35c83df5f20dce6403d4f71d87", "simhash": "1:1389d2ee3e0f5569", "word_count": 1328 }, "last_updated": "2023-07-14T22:32:29.259677+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges ELMORE and STEELMAN concur." ], "parties": [ "CHRISTOPHER P. STARK, Plaintiff v. JANAKI RATASHARA, Defendant" ], "opinions": [ { "text": "JACKSON, Judge.\nChristopher P. Stark (\u201cplaintiff\u2019) appeals from the trial court\u2019s orders awarding alimony in favor of Janaki Ratashara-Stark (\u201cdefendant\u201d), and denying plaintiffs motion for new trial.\nOn 27 November 2002, plaintiff filed a complaint for absolute divorce on the ground of one-year separation, pursuant to N.C. Gen. Stat. \u00a7 50-6. On 13 January 2003, defendant filed her answer, and stated that \u201cthe claims for alimony and equitable distribution pending this action are to be reserved.\u201d Defendant failed to include a counterclaim for alimony in her answer, and failed to file a separate action for alimony. On 18 February 2003, after hearing evidence from plaintiff and defendant, the Honorable Charles M. Neaves entered an order granting an absolute divorce. The trial court found that \u201c[t]he plaintiff has requested the court for an Equitable Distribution hearing regarding the remaining marital property,\u201d but the trial court did not enter any findings regarding alimony.\nOn 2 October 2003, defendant filed an amended answer and counterclaim for alimony and equitable distribution, and plaintiff filed his answer. On 20 December 2004, the Honorable Otis M. Oliver entered an order awarding alimony to defendant. On 16 February 2005, the trial court denied plaintiff\u2019s amended motion for new trial. Plaintiff appeals from the 17 December 2004 order awarding alimony and the 16 February 2005 order denying plaintiffs amended motion for new trial.\nOn appeal, plaintiff argues that the trial court erred because: (1) the order awarding alimony contained findings of fact that were unsupported by the evidence, and the findings did not support the conclusions of law; (2) the trial court failed to grant a new trial after plaintiff obtained an affidavit that defendant withheld during discovery; (3) the trial court failed to impeach defendant as a witness; (4) the trial court denied plaintiff due process of law; and (5) the trial court failed to enter findings of fact to support its alimony award regarding the duration, amount,, and form of alimony payments.\nBefore we address plaintiffs substantive claims, we first must address whether the trial court had subject matter jurisdiction to enter the order awarding alimony.\nOur jurisdiction recognizes that when a party has secured an absolute divorce, it is beyond the power of the court thereafter to enter an order awarding alimony. Mitchell v. Mitchell, 270 N.C. 253, 258, 154 S.E.2d 71, 75 (1967). Specifically, North Carolina General Statutes \u00a7 50-11 provides:\n(a) After a judgment of divorce from the bonds of matrimony, all rights arising out of the marriage shall cease and determine except as hereinafter set out, and either party may marry again without restriction arising from the dissolved marriage.\n(c) A divorce obtained pursuant to G.S. 50-5.1 or G.S. 50-6 shall not affect the rights of either spouse with respect to any action for alimony or postseparation support pending at the time the judgment for divorce is granted. Furthermore, a judgment of absolute divorce shall not impair or destroy the right of a spouse to receive alimony or postseparation support or affect any other rights provided for such spouse under any judgment or decree of a court rendered before or at the time of the judgment of absolute divorce.\nN.C. Gen. Stat. \u00a7 50-11 (2005).\nOur Supreme Court has stated that a party\u2019s filed counterclaim is sufficient to constitute an action pending when judgment of absolute divorce is entered. Stegall v. Stegall, 336 N.C. 473, 474-77, 444 S.E.2d 177, 178-79 (1994). Furthermore, a person must apply specifically for the claim by cross-action or by a separate action, and the bare reservation by a trial court only preserves the claim for the party who has asserted the right prior to judgment of absolute divorce. See Lutz v. Lutz, 101 N.C. App. 298, 301-03, 399 S.E.2d 385, 387-88 (1991), disc. rev. denied, 328 N.C. 732, 404 S.E.2d 871 (1991); see also Gilbert v. Gilbert, 111 N.C. App. 233, 431 S.E.2d 805 (1993). While we recognize that Lutz applies to equitable distribution, we see no reason why alimony should not be treated the same for preservation purposes.\nIn the present case, on 27 November 2002, plaintiff filed a complaint for absolute divorce on the ground of a one-year separation, pursuant to N.C. Gen. Stat. \u00a7 50-6. Plaintiff alleged that \u201cthere are no claims for support, or alimony pending in this action or any other action filed in any court.\u201d On 13 January 2003, defendant filed her answer stating that \u201cthe claims for alimony and equitable distribution pending this action are to be reserved.\u201d However, defendant failed to file a counterclaim against plaintiff for alimony, nor did she file a separate claim for alimony. On 18 February 2003, the trial court entered a judgment for absolute divorce without preserving a claim for alimony. Therefore, defendant did not have a claim for alimony pending at the time the trial court entered the judgment for absolute divorce. Defendant\u2019s mere assertion in her answer that \u201cthe claims for alimony and equitable distribution pending this action are to be reserved\u201d is insufficient to constitute an action pending at the time the trial court entered the judgment for absolute divorce. See Stegall, supra. Therefore, defendant lost her claim for alimony by failing to assert it prior to the trial court\u2019s judgment of absolute divorce.\nSubject matter jurisdiction cannot be conferred upon a court by consent, waiver or estoppel, and failure to demur or object to the jurisdiction is immaterial. See In re McKinney, 158 N.C. App. 441, 447, 581 S.E.2d 793, 797 (2003); see also Lockamy v. Lockamy, 111 N.C. App. 260, 262, 432 S.E.2d 176, 177 (1993) (\u201cthe fact that both parties participated in the equitable distribution hearing does not save plaintiff. Jurisdiction over the subject matter cannot be conferred upon a court by consent, waiver or estoppel.\u201d); DeGree v. DeGree, 72 N.C. App. 668, 670, 325 S.E.2d 36, 37 (1985), disc. rev. denied, 313 N.C. 598, 330 S.E.2d 607 (1985) (\u201cAlthough the parties stipulated in a pre-trial conference \u2018that the court has jurisdiction of the parties and of the subject matter,\u2019 we find such to be ineffective in conferring jurisdiction upon the court.\u201d).\nHere, defendant\u2019s amended answer and counterclaim for alimony filed well after the trial court\u2019s judgment for absolute divorce and plaintiff\u2019s answer to defendant\u2019s amended answer and counterclaim did not confer subject matter jurisdiction upon the trial court to award alimony. Therefore, the trial court did not have subject matter jurisdiction to award alimony.\nIn conclusion, defendant did not have a claim for alimony pending at the time the trial court entered a j\u00fadgment for absolute divorce. The parties could not confer subject matter jurisdiction upon the trial court by waiver or consent. Because we hold that the trial court did not have subject matter jurisdiction to enter a judgment awarding alimony, we do not address plaintiff\u2019s appeal from the trial court\u2019s order denying the motion for new trial. Accordingly, we vacate the judgment granting alimony.\nVacate.\nJudges ELMORE and STEELMAN concur.", "type": "majority", "author": "JACKSON, Judge." } ], "attorneys": [ "Christopher Paul Stark, pro se, for plaintiff-appellant.", "R. Michael Bruce, for defendant-appellee." ], "corrections": "", "head_matter": "CHRISTOPHER P. STARK, Plaintiff v. JANAKI RATASHARA, Defendant\nNo. COA05-1119\n(Filed 2 May 2006)\nDivorce\u2014 alimony \u2014 lack of subject matter jurisdiction\nThe trial court did not have subject matter jurisdiction to award alimony in favor of defendant wife because: (1) when a party has secured an absolute divorce, it is beyond the power of the court thereafter to enter an order awarding alimony; (2) although defendant filed an answer stating the claims for alimony and equitable distribution pending the action for absolute divorce are to be reserved, she failed to file a counterclaim against plain- . tiff for alimony and did not file a separate claim for alimony; and (3) the parties cannot confer subject matter jurisdiction upon the trial court by waiver or consent.\nAppeal by plaintiff from judgment entered 17 December 2004 and from an order entered 16 February 2005 by Judge Otis M. Oliver in Stokes County District Court. Heard in the Court of Appeals 22 March 2006.\nChristopher Paul Stark, pro se, for plaintiff-appellant.\nR. Michael Bruce, for defendant-appellee." }, "file_name": "0449-01", "first_page_order": 483, "last_page_order": 486 }