{ "id": 4176315, "name": "RICHARD EDWARD CROWLEY, JR., Plaintiff-Appellant v. CAROLYN W. CROWLEY, Defendant-Appellee", "name_abbreviation": "Crowley v. Crowley", "decision_date": "2010-04-06", "docket_number": "No. COA09-898", "first_page": "299", "last_page": "309", "citations": [ { "type": "official", "cite": "203 N.C. App. 299" } ], "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": "669 S.E.2d 891", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12642346 ], "year": 2008, "pin_cites": [ { "page": "897" } ], "opinion_index": 0, "case_paths": [ "/se2d/669/0891-01" ] }, { "cite": "657 S.E.2d 361", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640450 ], "weight": 5, "year": 2008, "pin_cites": [ { "page": "363" }, { "page": "365" } ], "opinion_index": 0, "case_paths": [ "/se2d/657/0361-01" ] }, { "cite": "670 S.E.2d 242", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12642366 ], "year": 2008, "opinion_index": 0, "case_paths": [ "/se2d/670/0242-01" ] }, { "cite": "603 S.E.2d 126", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12631828 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/se2d/603/0126-01" ] }, { "cite": "358 N.C. 739", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12631834, 12631804, 12631805, 12631806 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/se2d/603/0127-02", "/se2d/602/0682-02", "/se2d/602/0682-01", "/se2d/602/0685-02" ] }, { "cite": "491 S.E.2d 672", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "675", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "127 N.C. App. 505", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11798267 ], "year": 1997, "pin_cites": [ { "page": "510", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/127/0505-01" ] }, { "cite": "261 S.E.2d 28", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "31", "parenthetical": "holding that where a counterclaim \"seek[s] no affirmative relief other than that which would naturally flow from successful defense to plaintiff's action[,]\" no reply is required." } ], "opinion_index": 0 }, { "cite": "44 N.C. App. 224", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551927 ], "year": 1979, "pin_cites": [ { "page": "229", "parenthetical": "holding that where a counterclaim \"seek[s] no affirmative relief other than that which would naturally flow from successful defense to plaintiff's action[,]\" no reply is required." } ], "opinion_index": 0, "case_paths": [ "/nc-app/44/0224-01" ] }, { "cite": "286 S.E.2d 810", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "814" } ], "opinion_index": 0 }, { "cite": "56 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8519295 ], "year": 1982, "pin_cites": [ { "page": "5" } ], "opinion_index": 0, "case_paths": [ "/nc-app/56/0001-01" ] }, { "cite": "2 F.R. D. 372", "category": "reporters:specialty", "reporter": "F.R.D.", "case_ids": [ 3753414 ], "year": 1942, "pin_cites": [ { "page": "373", "parenthetical": "ruling that a plaintiff should not be required to \"reassert the allegations of his statement of claim by way of a Reply\" when a defendant merely reiterates in a \"new matter\" \"the defenses which it has raised to plaintiffs claim\"" } ], "opinion_index": 0, "case_paths": [ "/frd/2/0372-01" ] }, { "cite": "1 L. Ed. 2d 49", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1956, "opinion_index": 0 }, { "cite": "352 U.S. 827", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6170019, 6169924, 6169774, 6170128, 6169844, 6170197 ], "year": 1956, "opinion_index": 0, "case_paths": [ "/us/352/0827-04", "/us/352/0827-03", "/us/352/0827-01", "/us/352/0827-05", "/us/352/0827-02", "/us/352/0827-06" ] }, { "cite": "230 F.2d 695", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 71509, 1262886 ], "weight": 7, "pin_cites": [ { "page": "703" }, { "parenthetical": "emphasis added" }, { "page": "703" }, { "page": "703" } ], "opinion_index": 0, "case_paths": [ "/f2d/230/0695-01", "/alaska/16/0083-01" ] }, { "cite": "187 S.E.2d 420", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1972, "pin_cites": [ { "page": "421", "parenthetical": "citations omitted" }, { "page": "422", "parenthetical": "approving trial court's decision to allow the plaintiff to present evidence in defense of the defendant's counterclaims and later file a reply in conformity with the evidence presented" } ], "opinion_index": 0 }, { "cite": "14 N.C. App. 40", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8546766 ], "weight": 2, "year": 1972, "pin_cites": [ { "page": "42", "parenthetical": "citations omitted" }, { "page": "43" } ], "opinion_index": 0, "case_paths": [ "/nc-app/14/0040-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 50-16", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "opinion_index": 0 }, { "cite": "362 N.C. 191", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4149183 ], "year": 2008, "opinion_index": 0, "case_paths": [ "/nc/362/0191-01" ] }, { "cite": "593 S.E.2d 808", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 7, "year": 2004, "pin_cites": [ { "page": "811" }, { "page": "811" }, { "page": "811" }, { "page": "811" } ], "opinion_index": 0 }, { "cite": "163 N.C. App. 504", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8918898 ], "weight": 2, "year": 2004, "pin_cites": [ { "page": "508" } ], "opinion_index": 0, "case_paths": [ "/nc-app/163/0504-01" ] }, { "cite": "240 S.E.2d 338", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "343" } ], "opinion_index": 0 }, { "cite": "294 N.C. 200", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572343 ], "year": 1978, "pin_cites": [ { "page": "207" } ], "opinion_index": 0, "case_paths": [ "/nc/294/0200-01" ] }, { "cite": "302 S.E.2d 754", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "759" } ], "opinion_index": 0 }, { "cite": "308 N.C. 393", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4706622 ], "year": 1983, "pin_cites": [ { "page": "400" } ], "opinion_index": 0, "case_paths": [ "/nc/308/0393-01" ] }, { "cite": "556 S.E.2d 621", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "623" } ], "opinion_index": 0 }, { "cite": "147 N.C. App. 771", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9381647 ], "year": 2001, "pin_cites": [ { "page": "773" } ], "opinion_index": 0, "case_paths": [ "/nc-app/147/0771-01" ] } ], "analysis": { "cardinality": 860, "char_count": 22903, "ocr_confidence": 0.757, "pagerank": { "raw": 5.12982294956584e-08, "percentile": 0.3229520331108107 }, "sha256": "9666de842f0b7b5e383151eebd0483e3c19f67193cc9280b5bf9c0ba5ed71691", "simhash": "1:36c2d3263effb952", "word_count": 3653 }, "last_updated": "2023-07-14T21:32:21.116750+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges STEELMAN and STEPHENS concur." ], "parties": [ "RICHARD EDWARD CROWLEY, JR., Plaintiff-Appellant v. CAROLYN W. CROWLEY, Defendant-Appellee" ], "opinions": [ { "text": "McGEE, Judge.\nRichard Edward Crowley (Plaintiff) and Carolyn W. Crowley (Defendant) were married on 2 March 1996 and separated on 20 July 2007. Plaintiff filed a complaint on 25 October 2007 seeking child custody, child support, post separation support, alimony and equitable distribution, along with a motion for interim distribution. Defendant filed an answer and counterclaims on 19 December 2007. Plaintiff did not file a reply to Defendant\u2019s counterclaims.\nPlaintiff and Defendant executed a parenting agreement that was approved by the trial court in an order entered 21 August 2008, which effectively resolved the issue of child custody. A trial was h\u00e9ld on the issues of child support, alimony, and equitable distribution on 11 February 2009.\nAt trial, Defendant moved for a dismissal of Plaintiff\u2019s alimony claim on the grounds that Plaintiff had failed to reply to Defendant\u2019s counterclaims. The trial court heard arguments from counsel and allowed Plaintiff\u2019s attorney the evening of 11 February 2009 to research the issue. In an order entered 12 February 2009, the trial court granted Defendant\u2019s motion to dismiss Plaintiff\u2019s alimony claim. Plaintiff appeals.\nInterlocutory Nature of the Appeal\nWe begin by addressing Defendant\u2019s contention that this appeal is interlocutory. \u201cAn order . . . granting a motion to dismiss certain claims in an action, while leaving other claims in the action to go forward, is plainly an interlocutory order.\u201d Pratt v. Staton, 147 N.C. App. 771, 773, 556 S.E.2d 621, 623 (2001). Generally, there is no right of appeal from an interlocutory order. A.E.P. Industries, Inc. v. McClure, 308 N.C. 393, 400, 302 S.E.2d 754, 759 (1983). Though Defendant asserts that this appeal was interlocutory when Plaintiff filed his notice of appeal, Defendant also \u201csubmits that [we] now [have] jurisdiction over [the] appeal,\u201d because the remaining issues have since been fully resolved. We agree.\nInterlocutory appeals are disfavored in order to \u201cprevent fragmentary, premature and unnecessary appeals by permitting the trial divisions to have done with a case fully and finally before it is presented to the appellate division.\u201d Waters v. Qualified Personnel, Inc., 294 N.C. 200, 207, 240 S.E.2d 338, 343 (1978). Our Court addressed the effect of the resolution of remaining issues on an otherwise interlocutory appeal in Tarrant v. Freeway Foods of Greensboro, 163 N.C. App. 504, 593 S.E.2d 808, disc. review denied, 358 N.C. 739, 603 S.E.2d 126 (2004). In Tarrant, the plaintiff appealed from the trial court\u2019s dismissal of two of his four claims. Id. at 507, 593 S.E.2d at 811. We noted that, after dismissal of only two of the plaintiff\u2019s claims, his appeal \u201cwould have been interlocutory[.]\u201d Id. at 507-08, 593 S.E.2d at 811. The plaintiff then voluntarily dismissed the remaining two claims. Id. at 508, 593 S.E.2d at 811. Our Court conducted the following analysis:\nAt this juncture, we believe that the interests of justice would be furthered by hearing the appeal. All claims and judgments are final with respect to all the parties, and there is nothing left for the trial court to determine. Therefore, the rationale behind dismissing interlocutory appeals, the prevention of fragmentary and unnecessary appeals, does not apply in this case. In fact, any delay on our part would impede, rather than expedite, the efficient resolution of this matter. For these reasons, we decline to dismiss the appeal and will consider the case on the merits.\nId. See also Jones v. Harrelson and Smith Contractors, \u2014 N.C. App. -, -, 670 S.E.2d 242, 249 n.2 (2008).\nDefendant has moved to amend the record on appeal to reflect certain developments in the case since the notice of appeal was filed. We grant Defendant\u2019s motion and note the following facts. In this case, the trial court granted Defendant\u2019s motion to dismiss the alimony claim, leaving unresolved Plaintiff\u2019s claims for child support and equitable distribution. Plaintiff gave notice of appeal on 13 March 2009. Because Plaintiff\u2019s appeal concerned an order dismissing one of his claims, but leaving his remaining claims unresolved, Plaintiff\u2019s appeal was interlocutory. However, the trial court entered a judgment and order on 7 July 2009, resolving the issues of equitable distribution, child support, and attorneys\u2019 fees. In light of the trial court\u2019s resolution of the remaining issues, \u201cthere is nothing left for the trial court to determine.\u201d Tarrant, 163 N.C. App. at 508, 593 S.E.2d at 811. Therefore, the rationale for dismissing interlocutory appeals does not apply in this case and we will consider Plaintiffs appeal. See Id.\nRules Violations\nDefendant cites to numerous alleged violations of the N.C. Rules of Appellate Procedure in Plaintiff\u2019s brief. Defendant includes in her brief a list of seven alleged rules violations, \u201ctwo of which are of fundamental import here (that is, rules 10(c)(1) and 28(b)(4)).\u201d Our Supreme Court addressed in detail the methods by which our Court is to respond to appellate rules violations in Dogwood Dev. & Mgmt. v. White Oak Transport, 362 N.C. 191, 657 S.E.2d 361 (2008). In Dogwood, the Supreme Court indicated that rules violations were of three broad categories: jurisdictional violations, non-jurisdictional violations, and waiver. Id. at 194, 657 S.E.2d at 363. The Court instructed that non-jurisdictional violations \u201cnormally should not lead to dismissal of the appeal.\u201d Id. at 198, 657 S.E.2d at 365. The Court noted that:\nTwo examples of such [non-jurisdictional] rules are those at issue in the present case: Rule 10(c)(1), which directs the form of assignments of error, and Rule 28(b), which governs the content of the appellant\u2019s brief.\nNoncompliance with rules of this nature, while perhaps indicative of inartful appellate advocacy, does not ordinarily give rise to the harms associated with review of unpreserved issues or lack of jurisdiction.\nId.\nWe note that in the present case, the two rules violations that Defendant asserts are \u201cof fundamental import\u201d are the precise rules that the Supreme Court in Dogwood instructed do not ordinarily warrant dismissal. We take further instruction from Dogwood, that \u201c[i]n most situations when a party substantially or grossly violates non-jurisdictional requirements of the rules, the appellate court should impose a sanction other than dismissal and review the merits of the appeal.\u201d Id. Therefore, we will review the merits of the appeal.\nFailure to Reply to Counterclaims\nPlaintiff argues that the trial court erred by dismissing his alimony claim based on his failure to reply to Defendant\u2019s counterclaims. Plaintiff contends that Defendant did not assert a counterclaim on the issue of alimony \u201cto which a reply was either required or permitted.\u201d For reasons discussed below, we reverse the trial court\u2019s ruling on this issue.\n\u201cThe court shall award alimony to the dependent spouse upon a finding that one spouse is a dependent spouse, that the other spouse is a supporting spouse, and that an award of alimony is equitable[.]\u201d N.C. Gen. Stat. \u00a7 50-16.3A(a) (2010). In the present case, the trial court dismissed Plaintiff\u2019s alimony claim after concluding that Plaintiff effectively admitted that he was not a dependent spouse and that Defendant was not a. supporting spouse. The trial court made these conclusions based in part on N.C. Gen. Stat. \u00a7 1A-1, Rules 7 and 8. N.C. Gen. Stat. \u00a7 1A-1, Rule 7 provides in pertinent part that \u201c[t]here shall be a . . . reply to a counterclaim denominated as such[.]\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 7(a) (2010). N.C. Gen. Stat. \u00a7 1A-1, Rule 8 provides in pertinent part that \u201c[a]verments in a pleading to which a responsive pleading is required, other than those as to the amount of damage, are admitted when not denied in the responsive pleading.\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 8(d) (2010).\nDefendant\u2019s answer and counterclaims contained the following:\nAFFIRMATIVE DEFENSES\nFirst Affirmative Defense\n45. [Plaintiff] is not a dependent spouse of his marriage to [Defendant], and [Defendant] is not a supporting spouse of her marriage to [Plaintiff], as [Plaintiff] is underemployed and is intentionally depressing his income in order to receive alimony from [Defendant], As a result, [Plaintiff] is not entitled to post-separation support and/or alimony from [Defendant], and [Defendant] pleads this as an affirmative defense to [Plaintiff\u2019s] claims for postseparation support and/or alimony.\nCOUNTERCLAIMS\nFACTUAL ALLEGATIONS\n74. Upon information and belief, [Plaintiff] is currently employed at the YMCA. In the past, [Plaintiff] earned an annual salary of $30,000 working eight hours per week as an assistant at [Defendant\u2019s] dental practice. [Plaintiff] has also owned his own art gallery in the past, \u201cStretch Gallery,\u201d but failed to operate it in a way that was profitable. Upon information and belief, [Plaintiff] voluntarily closed his gallery in October 2007 in order to increase his chances of receiving an award of alimony and child support from [Defendant]. [Plaintiff] had equipment in the gallery that was worth, upon information and belief, $15,000. [Plaintiff] has a B.A. from Texas Tech in Art and is deliberately depressing his income in order to avoid his child support obligation and to receive alimony from [Defendant].\nStill under the heading \u201ccounterclaims,\u201d Defendant then asserted'the following claims for relief:\nFirst Claim for Relief\nChild Custody and Support\n80. [Defendant] incorporates by reference and realleges as if fully set forth herein the admissions, responses and allegations set forth in the preceding paragraphs.\n81. [Defendant] is entitled to an award of sole custody of the parties\u2019 minor children, both temporary and permanent. Custody with [Defendant] is in the best interests and welfare of the minor children.\n82. It is appropriate that the [c]ourt enter an [o]rder providing for the support of the minor children, both temporary and permanent.\nSecond Claim for Relief\nRetroactive Child Support\n83. [Defendant] incorporates by reference and realleges as if fully set forth herein the admissions, responses and allegations set forth in the preceding paragraphs.\n84. [Defendant] has expended reasonable and considerable sums of money on behalf of the minor children since the date of separation without assistance from [Plaintiff].\n85. [Defendant] is entitled to an [o]rder requiring [Plaintiff] to pay to [Defendant] at least one-half (1/2) of the actual expenditures incurred on behalf of the minor children from the date of separation to the date [Plaintiff] filed his Complaint.\nThird Claim for Relief\nEquitable Distribution\n86. [Defendant] incorporates by reference and realleges as if fully set forth herein the admissions, responses and allegations set forth in the preceding paragraphs.\n87. Pursuant to N.C.G.S. \u00a7 50-20, et seq., [Defendant] is entitled to an unequal distribution of marital property and divisible property in her favor and an equitable distribution of the marital and divisible debt.\nPlaintiff contends that the trial court erred by applying N.C.G.S. \u00a7 1A-1, Rule 8(d) to this case because Defendant did not assert a counterclaim related to alimony. We agree there was no counterclaim for alimony in Defendant\u2019s answer, but note there were three specific counterclaims which incorporated, by reference, and re-alleged those portions of paragraph number 45 which related to alimony.\nTherefore, Defendant did assert three counterclaims to which a reply would generally be required. Incorporated by reference in those counterclaims are allegations which, if deemed admitted, would undermine Plaintiff\u2019s recovery on his alimony claim. Those allegations are properly labeled an affirmative defense in Defendant\u2019s answer under paragraph 45, and are simply affirmative statements which serve to negate claims already made by Plaintiff in his complaint. See N.C.G.S. \u00a7 1A-1, Rule 8(c) (\u201cWhen a party has mistakenly designated a defense as a counterclaim or a counterclaim as a defense, the court, on terms, if justice so requires, shall treat the pleading as if there had been a proper designation.\u201d). The question before us, then, is whether allegations in a defendant\u2019s counterclaims, which in part state in the affirmative mere denials of allegations originally made in a complaint, are deemed admitted if the plaintiff fails to re-allege those facts in a reply by denying the defendant\u2019s allegations.\nThis issue has not been directly addressed by our Courts. When interpreting the N.C. Rules of Civil Procedure, our Courts may look to the Federal Rules of Civil Procedure, and \u201cdecisions under [the Federal Rules of Civil Procedure] are pertinent for guidance and enlightenment as we develop the philosophy of the new rules.\u201d Johnson v. Johnson, 14 N.C. App. 40, 42, 187 S.E.2d 420, 421 (1972) (citations omitted).\nFederal Rule of Civil Procedure 8(b)(6) contains the following language: \u201cEffect of Failing to Deny. An allegation \u2014 other than one relating to the amount of damages \u2014 is admitted if a responsive pleading is required and the allegation is not denied. If a responsive pleading is not required, an allegation is considered denied or avoided.\u201d Fed. R. Civ. P. 8(b)(6). This language is effectively identical to the language of our own Rule 8(d), which provides in relevant part:\nEffect of failure to deny. \u2014 Averments in a pleading to which a responsive pleading is required, other than those as to the amount of damage, are admitted when not denied in the responsive pleading. Averments in a pleading to which no responsive pleading is required or permitted shall be taken as denied or avoided.\nN.C.G.S. \u00a7 1A-1, Rule 8(d) (2010).\nIn Vevelstad v. Flynn, 230 F.2d 695 (9th Cir.), cert. denied, 352 U.S. 827, 1 L. Ed. 2d 49 (1956), the Ninth Circuit Court of Appeals addressed the question now before us. In Vevelstad, the defendants in a title dispute action filed an answer which contained a section entitled \u201ca fourth defense and counterclaim[.]\u201d Vevelstad, 230 F.2d at 703. The plaintiffs did not reply to the counterclaim and the defendants argued that the failure to reply \u201cconstituted an admission of the allegations of that part of the answer.\u201d Id. In affirming the trial court, the Court noted:\nWith respect to this we agree with the trial court that the allegations of this fourth defense and counterclaim, which were incorporated from similar allegations in the so-called third defense, were merely denials in affirmative form of the allegations of the complaint. Said the trial court: \u201cObviously, by incorporating such allegations into what is denominated a defense and counterclaim, the defendant may not compel the plaintiff to repeat, in negative form in a reply, the allegations of his complaint, and hence, I conclude that the failure to file a reply in the instant case does not constitute an admission under rules 7(a) and 8(d) F.R.C.P.\u201d This ruling is in conformity with the express provisions of Rule 8(c), F.R.C.P. as follows: \u201cWhen a party has mistakenly designated a defense as a counterclaim or a counterclaim as a defense, the court on terms, if justice so requires, shall treat the pleading as if there had been a proper designation.\u201d\nId. (emphasis added). The Ninth Circuit Court of Appeals affirmed the trial court\u2019s interpretation. Id. See also Monk v. United Life & Accident Ins. Co. of Concord, N.H., 2 F.R. D. 372, 373 (E.D. Pa. 1942) (ruling that a plaintiff should not be required to \u201creassert the allegations of his statement of claim by way of a Reply\u201d when a defendant merely reiterates in a \u201cnew matter\u201d \u201cthe defenses which it has raised to plaintiffs claim\u201d).\nWe find the Ninth Circuit Court of Appeals\u2019 interpretation persuasive and in line with the spirit of our Court\u2019s prior decisions interpreting N.C.G.S. \u00a7 1A-1, Rule 8:\n[B]ecause of our \u201cgeneral policy of proceeding to the merits of an action\u201d .... when to do so would not violate the letter or spirit of our Rules, this Court has refused to adhere strictly to Rule 8(d) in the context of a plaintiff\u2019s failure to file a reply to a counterclaim in [Eubanks v. Insurance Co. and Johnson v. Johnson].\nConnor v. Royal Globe Ins. Co., 56 N.C. App. 1, 5, 286 S.E.2d 810, 814 (1982) citing Johnson, 14 N.C. App. at 43, 187 S.E.2d at 422 (approving trial court\u2019s decision to allow the plaintiff to present evidence in defense of the defendant\u2019s counterclaims and later file a reply in conformity with the evidence presented); Eubanks v. Fire Protection Life Ins. Co., 44 N.C. App. 224, 229, 261 S.E.2d 28, 31 (1979) (holding that where a counterclaim \u201cseek[s] no affirmative relief other than that which would naturally flow from successful defense to plaintiff\u2019s action[,]\u201d no reply is required.). We hold that a plaintiff\u2019s failure to file a reply re-asserting allegations already made in the complaint in response to averments in a defendant\u2019s counterclaim which do no more than present \u201cdenials in affirmative form of the allegations of the complaint[,]\u201d does not amount to an admission pursuant to N.C.G.S. \u00a7 1A-1, Rule 8(d). Vevelstad, 230 F.2d at 703.\nIn the case before us, Plaintiff alleged in his complaint that:\n28. Plaintiff is a dependant spouse within the meaning of N.C. Gen. Stat. \u00a750-16.1A who is actually and substantially in need of maintenance and support from the Defendant.\n29. Defendant is a supporting spouse within the meaning of N.C. Gen. Stat. \u00a750-16.1A who is capable of providing support to Plaintiff.\nDefendant contended in her counterclaim that:\n45. [Plaintiff] is not a dependent spouse of his marriage to [Defendant], and [Defendant] is not a supporting spouse of her marriage to [Plaintiff], as [Plaintiff] is underemployed and is intentionally depressing his income in order to receive alimony from [Defendant]. As a result, [Plaintiff] is not entitled to post-separation support and/or alimony from [Defendant], and [Defendant] pleads this as an affirmative defense to [Plaintiff\u2019s] claims for postseparation support and/or alimony.\nThe trial court\u2019s order dismissing Plaintiff\u2019s alimony claim contained the following language:\nFINDINGS OF FACT\n2. [Defendant\u2019s] counterclaims alleged \u201c[Plaintiff] is not a dependent spouse of his marriage to [Defendant], and [Defendant] is not a supporting spouse to her marriage to [Plaintiff], as [Plaintiff] is underemployed and is intentionally depressing his income in order to receive alimony from [Defendant].\u201d [Defendant\u2019s] counterclaims sought affirmative relief in the form of child custody, child support, equitable distribution of marital and divisible property, attorneys\u2019 fees and motion for a comprehensive custody evaluation.\n3. [Plaintiff] failed to file a reply to [Defendant\u2019s] counterclaims as required by the North Carolina Rules of Civil Procedure.\n6. Pursuant to Rule 8(d) of the North Carolina Rules of Civil Procedure, the allegations of [Defendant\u2019s] counterclaims as more particularly set forth above in finding of fact No. 2 are deemed admitted and the [c]ourt finds as a fact that [Plaintiff] is not a dependent spouse of his marriage to [Defendant], and [Defendant] is not a supporting spouse of her marriage to [Plaintiff].\nBased upon the foregoing findings of fact, the [c]ourt concludes as a matter of law:\nCONCLUSIONS OF LAW\n1. [Plaintiff] is not a \u201cdependent spouse\u201d of his marriage to [Defendant] as that term is defined in N.C.G.S. \u00a7 50-16.1A(2).\n2. [Defendant] is not a \u201csupporting spouse\u201d of her marriage to [Plaintiff] as that term is defined in N.C.G.S. \u00a7 50-16.1A(5).\n3. N.C.G.S. \u00a7 50-16.3A(a) provides in order for a party to be entitled to alimony, that party must be a \u201cdependent spouse\u201d and the other party must be a \u201csupporting spouse.\u201d Accordingly, [Plaintiffs] claim for alimony should be dismissed.\nWe note that \u201cFinding of Fact\u201d number 6 is actually a conclusion of law.\nThe classification of a determination as either a finding of fact or a conclusion of law is admittedly difficult. As a general rule, however, any determination requiring the exercise of judgment or the application of legal principles, is more properly classified a conclusion of law. Any determination reached through \u201clogical reasoning from the evidentiary facts\u201d is more properly classified a finding of fact.\nMatter of Helms, 127 N.C. App. 505, 510, 491 S.E.2d 672, 675 (1997) (citations omitted). We thus treat \u201cFinding of Fact\u201d number 6 as a conclusion of law. See Eakes v. Eakes, - N.C. App. -, -, 669 S.E.2d 891, 897 (2008).\nIn reviewing the allegations in Plaintiffs complaint and Defendant\u2019s counterclaims, we find that the allegations set forth in paragraph 45 of Defendant\u2019s counterclaims, and reiterated in finding of fact number 2 in the trial court\u2019s order, are \u201cmerely denials in affirmative form of the allegations of the complaint.\u201d Vevelstad, 230 F.2d at 703. Because we hold that a plaintiff is not required to re-allege those allegations in a complaint that have been \u201cdenied in the affirmative\u201d by way of a counterclaim by a defendant, the trial court erred in \u201cdeem[ing[ admitted\u201d the allegations in Defendant\u2019s counterclaim that Plaintiff was not a dependent spouse and that Defendant was not a supporting spouse. We thus reverse the trial court\u2019s order dismissing Plaintiff\u2019s alimony claim.\nReversed.\nJudges STEELMAN and STEPHENS concur.", "type": "majority", "author": "McGEE, Judge." } ], "attorneys": [ "The Honnold Law Firm, P.A., by Bradley B. Honnold, for Plaintiff-Appellant.", "James, McElroy & Diehl, P.A., by G. Russell Komegay, III and Preston O. Odom, III, for Defendant-Appellee." ], "corrections": "", "head_matter": "RICHARD EDWARD CROWLEY, JR., Plaintiff-Appellant v. CAROLYN W. CROWLEY, Defendant-Appellee\nNo. COA09-898\n(Filed 6 April 2010)\n1. Appeal and Error\u2014 interlocutory order \u2014 remaining issues resolved \u2014 appeal considered\nThe Court of Appeals considered plaintiff\u2019s appeal from the trial court\u2019s order dismissing his claim for alimony even though it was interlocutory when appeal was noticed. Because the remaining issues of child support and equitable distribution were resolved after appeal was noticed, there was nothing left for the trial court to determine.\n2. Appeal and Error\u2014 violations of Appellate Rules of Procedure \u2014 dismissal not warranted\nPlaintiff\u2019s alleged violations of the Appellate Rules of Procedure did not warrant dismissal, and the merits of the appeal were reached.\n3. Divorce\u2014 alimony claim \u2014 failure to reply to counterclaim \u2014 not deemed an admission\nThe trial court erred in dismissing plaintiff\u2019s claim for alimony after ruling that plaintiff effectively admitted that he was not a dependent spouse by failing to reply to defendant\u2019s counterclaim. Defendant failed to make a specific counterclaim for alimony and plaintiff\u2019s failure to file a reply re-asserting allegations already made in his complaint did not amount to an admission under N.C.G.S. \u00a7 1A-1, Rule 8(d).\nAppeal by Plaintiff from order entered 12 February 2009 by Judge Christy T. Mann in District Court, Mecklenburg County. Heard in the Court of Appeals 2 December 2009.\nThe Honnold Law Firm, P.A., by Bradley B. Honnold, for Plaintiff-Appellant.\nJames, McElroy & Diehl, P.A., by G. Russell Komegay, III and Preston O. Odom, III, for Defendant-Appellee." }, "file_name": "0299-01", "first_page_order": 327, "last_page_order": 337 }