{
  "id": 4159306,
  "name": "EULA P. STREET, Plaintiff v. BASIL W. STREET, Defendant",
  "name_abbreviation": "Street v. Street",
  "decision_date": "2008-08-05",
  "docket_number": "No. COA07-1452",
  "first_page": "815",
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    "source": "Harvard",
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  "casebody": {
    "judges": [
      "Judges STEELMAN and STEPHENS concur."
    ],
    "parties": [
      "EULA P. STREET, Plaintiff v. BASIL W. STREET, Defendant"
    ],
    "opinions": [
      {
        "text": "HUNTER, Judge.\nEula P. Street (\u201cplaintiff\u2019) appeals from three orders pertaining to her divorce from Basil W. Street (\u201cdefendant\u201d). After careful review, we reverse and grant a new trial.\nPlaintiff and defendant married in 1985. In 1989, the parties entered into a contract (\u201cthe property contract\u201d) stating that each party \u201crelease[d], renounce[d], and quitclaim[ed] all interest in any real property hereafter acquired by [other party].\u201d The parties separated in 1997 and were divorced in 1999. Equitable distribution proceedings were then instigated.\nIn 2005, plaintiff moved for summary judgment on her claim for equitable distribution. That motion was denied on 26 September 2005; that order is one of the three from which plaintiff appeals.\nOn 23 August 2006, the court filed an order holding that the property contract constituted an \u201caffirmative defense\u201d and therefore \u201cshould have been specifically pled by Plaintiff.\u201d Because it was not, the trial court classified the parties\u2019 former home as marital property for purposes of equitable distribution. This is the second order from which plaintiff appeals.\nA final equitable distribution order was filed on 22 August 2007. Therein, plaintiff was ordered to pay defendant $14,500.00 \u2014 half the total equity the couple had in the marital home \u2014 \u201cfor his interest in the marital property of the parties[.]\u201d This is the final order from which plaintiff appeals.\nAs to plaintiff\u2019s arguments regarding the order denying plaintiff\u2019s claim for summary judgment, we note only that \u201c[t]his Court cannot consider an appeal of denial of the summary judgment motion now that a final judgment on the merits has been made[.]\u201d WRI/Raleigh, L.R v. Shaikh, 183 N.C. App. 249, 252, 644 S.E.2d 245, 246 (2007). We therefore do not consider plaintiff\u2019s arguments as to that order.\nAs to the other two orders, plaintiff\u2019s argument in essence is that the court erred in (1) holding that the property contract must have been pled as an affirmative defense and (2) refusing to give the property contract effect on that basis. Because we agree with the first, we do not address the second.\nIn its August 2006 order holding that the property contract must have been pled as an affirmative defense, the court states that the contract was \u201cimproperly and untimely filed\u201d because it was \u201can affirmative defense within the meaning of Rule 8(c) of the North Carolina Rules of Civil Procedure such that it should have been specifically pled by Plaintiff.\u201d [R p. 51] Rule 8(c) lists twenty-one specific affirmative defenses that must be pled, none of which apply in this case. N.C. Gen. Stat. \u00a7 1A-1, Rule 8(c) (2007). Following this list is the following catch-all: \u201c[A]ny other matter constituting an avoidance or affirmative defense.\u201d Id. There are two errors in the trial court\u2019s conelusion that this catch-all applies to the property contract at issue in this case. First, the contract governing property is not an affirmative defense; rather, it is a piece of evidence to be considered in settling the action for equitable distribution. Second, and more important, no counterclaim was brought by defendant to which an affirmative defense would need to be made. Plaintiff brought an action for equitable distribution, and defendant filed an answer admitting almost all of plaintiffs allegations and asking only for visitation and. \u201csuch orders of equitable distribution as is [sic] appropriate.\u201d He neither disputed the property contract nor brought any new claim of his own. As such, it would not have been appropriate for plaintiff to specifically plead an affirmative defense.\nThis appears to be the only basis on which the trial court disregarded the property contract \u2014 that is, that the property contract was not timely filed because it was an affirmative defense. The trial court cited only to Rule 8(c) in support of this holding, and as discussed above, that rule does not apply. The trial court cited to neither statutory nor case law to support the holding, and this Court has found none. Thus, the property contract was improperly disregarded by the trial court.\nThe next question, then, is whether the property contract is valid. We cannot make such a determination on the record before us; the trial court made no findings of fact in any of its orders as to the validity of the property contract, and the record reflects no evidence on the question. As such, we remand this case to the trial court so that the validity of the property contract \u2014 and any other evidence as to equitable distribution \u2014 may be considered.\nReversed; new trial.\nJudges STEELMAN and STEPHENS concur.",
        "type": "majority",
        "author": "HUNTER, Judge."
      }
    ],
    "attorneys": [
      "Manning, Fulton & Skinner, P.A., by Michael S. Harrell, for plaintiff-appellant.",
      "No brief for defendant-appellee."
    ],
    "corrections": "",
    "head_matter": "EULA P. STREET, Plaintiff v. BASIL W. STREET, Defendant\nNo. COA07-1452\n(Filed 5 August 2008)\n1. Appeal and Error\u2014 appealability \u2014 denial of summary judgment \u2014 final judgment on merits\nPlaintiff\u2019s arguments in a divorce case regarding the order denying her claim for summary judgment were not considered because the Court cannot consider an appeal of the denial of a summary judgment motion once a final judgment on the merits has been made.\n2. Divorce\u2014 equitable distribution \u2014 property contract\u2014 affirmative defense catchall provision\nThe trial court erred in a divorce case by disregarding a property contract on the basis that it must have been pled as an affirmative defense under the catchall provision in N.C.G.S. \u00a7 8C-1, Rule 8(c) because: (1) the contract governing property is not an affirmative defense, but instead was a piece of evidence to be considered in settling the action for equitable distribution; (2) no counterclaim was brought by defendant to which an affirmative defense would need to be made; (3) it would not have been appropriate for plaintiff to specifically plead an affirmative defense when defendant neither disputed the property contract nor brought any new claim of his own; and (4) the trial court cited to neither statutory nor case law to support its holding, and the Court of Appeals found none.\n3. Divorce\u2014 equitable distribution \u2014 validity of property contract \u2014 findings of fact\nA divorce case is remanded to the trial court so that the validity of the property contract and any other evidence as to equitable distribution may be considered because: (1) the trial court made no findings of fact in any of its orders as to the validity of the property contract; and (2) the record reflected no evidence on the question.\nAppeal by plaintiff from orders entered 26 September 2005, 23 August 2006, and 22 August 2007 by Judge Mike Gentry in Person County District Court. Heard in the Court of Appeals 14 May 2008.\nManning, Fulton & Skinner, P.A., by Michael S. Harrell, for plaintiff-appellant.\nNo brief for defendant-appellee."
  },
  "file_name": "0815-01",
  "first_page_order": 847,
  "last_page_order": 850
}