Goodwin v. Zeydel

387 S.E.2d 57 (1990)

96 N.C. App. 670

Dorothy D. GOODWIN, Plaintiff, v. Walter H. ZEYDEL, Defendant.

No. 8928DC616.

Court of Appeals of North Carolina.

January 4, 1990.

*58 Gum & Hillier, P.A., by Howard L. Gum, Asheville, for plaintiff-appellee.

Whalen, Hay, Pitts, Hugenschmidt, Master, Devereux & Belser, P.A. by James J. Hugenschmidt and Barry L. Master, Asheville, for defendant-appellant.

WELLS, Judge.

Ordinarily, an order denying a motion to amend is interlocutory and not immediately appealable. However, both N.C.Gen.Stat. § 1-277(a) (1983) and 7A-27(d)(1) (1989) allow for an appeal as a matter of right from an interlocutory order which affects a substantial right. In this case, the trial court's order of 27 January 1989 had the effect of forever barring defendant from asserting a claim for equitable distribution, and thus affected a substantial right.

The dispositive question in this case is whether defendant's answer sufficiently asserted a claim for equitable distribution. We agree with the trial court and hold that it did not.

Since our Supreme Court's decision in Sutton v. Duke, 277 N.C. 94, 176 S.E.2d 161 (1970), our appellate courts have consistently and repeatedly stated that pleadings must be liberally construed, but we have also adhered to the rule stated in Sutton that complaints (and thus counterclaims) must be sufficient to give the adverse party notice of the nature and basis of a claim in order to enable the adverse party to respond and prepare for trial.

In this case, defendant's answer asserted a claim to an interest in a specific piece of property, or, to proceeds in plaintiff's possession flowing from defendant's interest in that piece of property. Even under the most liberal interpretation of the rules of pleadings, we cannot agree that defendant's answer contained materials or statements sufficient to put plaintiff on notice that he was asserting a claim for equitable distribution under N.C.Gen.Stat. § 50-20 (1987).

In contending that his answer was sufficient to assert a claim for equitable distribution, defendant relies on the statement of our Supreme Court in Hagler v. Hagler, 319 N.C. 287, 354 S.E.2d 228 (1987) that: "There is nothing in the statute regarding the sufficiency of the pleadings to support a claim for equitable distribution." We do not interpret the foregoing statement so broadly as to save defendant's claim under his answer in this case.

The trial court, having properly concluded that defendant's answer did not sufficiently assert a claim for equitable distribution, was required to deny defendant's motion to amend his answer to assert such a claim. N.C.Gen.Stat. § 50-11 (1987) in pertinent part provides:

(e) An absolute divorce obtained within this State shall destroy the right of a spouse to an equitable distribution of the marital property under G.S. 50-20 unless the right is asserted prior to judgment of absolute divorce....

For the reasons stated, the judgment of the trial court is Affirmed.

HEDRICK, C.J., and ARNOLD, J., concur.