#### PATRICIA McNULTY TROGDON v. CALVIN LANCASTER TROGDON

No. 8921DC95

(Filed 6 February 1990)

Divorce and Alimony § 21.9 (NCI3d)— equitable distribution— defendant deceased before claim adjudicated — administrator of estate not allowed to substitute

The trial court correctly denied the petition of the administrator of defendant’s estate to be allowed to substitute for defendant in an equitable distribution action where defendant died after filing a counterclaim for equitable distribution but before the counterclaim or plaintiffs claim for divorce could be adjudicated. The marriage was dissolved by death and the parties can never be divorced as required by N.C.G.S. § 50-21(a).

Am Jur 2d, Divorce and Separation §§ 176, 177, 639.

APPEAL by petitioner administrator from order entered 26 October 1988 by Reingold, Judge, in FORSYTH County District Court. Heard in the Court of Appeals 12 September 1989.

Bailey and Thomas, hy David W. Bailey, Jr. and John R. Fonda, for plaintiff appellee.

Morrow, Alexander, Task, Long & Black, by Clifton R. Long, Jr., for defendant appellant.

PHILLIPS, Judge.

Plaintiff sued for an absolute divorce; defendant counterclaimed for an order of equitable distribution but died before either claim could be adjudicated. The appeal is from the denial of the petition of the administrator of defendant’s estate to be allowed to substitute for the defendant in the action.

The appeal has no merit. Permitting the administrator of defendant’s estate to enter the case would avail nothing. The order of equitable distribution that defendant counterclaimed for cannot be obtained because he and plaintiff were not divorced as G.S. 50-21(a) requires, McKenzie v. McKenzie, 75 N.C. App. 188, 330 S.E.2d 270 (1985); and they can never be divorced since the marriage was dissolved by death. Caldwell v. Caldwell, 93 N.C. App. *331 740, 379 S.E.2d 271, disc. rev. denied, 325 N.C. 270, 384 S.E.2d 513 (1989).

Affirmed.

Judges Wells and Parker concur.