All claims must be raised or they are waived!

Rebecca Watts of Collins Family Law Group in Mecklenburg County scores a Win in the Court of Appeals.

On September 5, 2023 the North Carolina Court of Appeals affirmed a ruling by the Mecklenburg County Family Court in the matter of Brown v Brown dismissing a claim by Wife for equitable apportionment.? How Wife or her lawyers let this happen is difficult to understand.

The parties had been married 10 years and were the parents of 2 small children. Husband moved out filed a claim for custody.? About 30 days later, Wife filed responsive pleadings also requesting custody. ?

The parties proceeded through court process, participated in pre-trial hearings to discuss property issues in addition to parenting issues, they exchanged Equitable Distribution Affidavits as required by rule when equitable apportionment claims are at issue, and served discovery requesting information on property. ?

But neither Husband or Wife ever plead for apportionment of marital property.

In December of 2018 Husband obtained a divorce.? 3 years later, Wife filed for a status conference on her equitable apportionment "claim".? The Court found that no claim for equitable apportionment had ever been made by either party and that both parties were represented by counsel at critical stages in the case, and therefor dismissed Wife's claim.?

The Court of Appeals affirmed.? Relying in part on statute, the court found no claim for equitable apportionment can be made subsequent to the issuance of a divorce decree.? They further noted that an equitable apportionment claim is not automatic, and must specifically be requested.?

Wife argued that the filing of the Equitable Distribution Affidavit preserved her claim, even though it was never formally plead.? The court stated that this argument is absurd:?

Adopting Wife’s argument would require us to accept the facially absurd position that an equitable distribution affidavit, by which a party may “first assert the claim,” must be filed “within 90 days after service” of itself. “It is well settled that in construing statutes courts normally adopt an interpretation which will avoid absurd or bizarre consequences . . . .” Romulus v. Romulus, 216 N.C. App. 28, 34, 715 S.E.2d 889, 893 (2011).?

Wife also tried some creative Estoppel arguments which were all denied, but are worth a read. ?

The the moral if this story is (as if we didn't already know) if you want something, put it in a pleading!? Simple Notice rules will always apply.

Guy Vitetta, Charleston