Cornelius v. Cornelius

360 S.E.2d 703 (1987)

87 N.C. App. 269

Jeannette M. CORNELIUS v. William Earl CORNELIUS.

No. 8723DC146.

Court of Appeals of North Carolina.

October 6, 1987.

*704 Walter Lee Zachary, Jr., Yadkinville, for defendant-appellant.

Carl F. Parrish, Winston-Salem, for plaintiff-appellee.

EAGLES, Judge.

Defendant presents five assignments of error. Because we agree with the second assignment of error, we vacate the judgment and remand the case for further proceedings.

Defendant first assigns as error the trial court's admission of testimony concerning whether certain property acquired during the marriage was separate property or marital property. Defendant argues that plaintiff's failure to reply to allegations listed in a counterclaim constituted a judicial admission conclusively establishing those allegations as fact. We disagree.

Defendant's counterclaim for equitable distribution is virtually identical to plaintiff's claim for equitable distribution. The only significant difference in the two claims, and the basis of this issue on appeal, is that defendant's counterclaim alleges "... all household furnishings contained in said homeplace, all monies located in various checking and savings accounts; all stocks and bonds and retirement accounts..." (emphasis added), rather than generally listing items considered to be marital property as plaintiff's complaint alleged.

The Rules of Civil Procedure provide that allegations in a pleading are deemed admitted where a responsive pleading is required and not made. G.S. 1A-1, Rule 8(d); Acceptance Corp. v. Samuels, 11 N.C.App. 504, 181 S.E.2d 794 (1971). On the other hand, where the answer requires no reply, any allegations in the answer are deemed denied. Vernon v. Crist, 291 N.C. 646, 231 S.E.2d 591 (1977).

The question, then, becomes whether defendant's allegations constitute a counterclaim demanding a reply. Defendant's claim contends that all the property listed is marital property. Though denominated a counterclaim, defendant's allegations, in effect, do no more than deny plaintiff's allegations that only the property listed in the complaint is marital property. Consequently, a reply is not required. Trust Co. v. Morgan-Schultheiss, 33 N.C. App. 406, 235 S.E.2d 693, disc. rev. denied, 293 N.C. 258, 237 S.E.2d 535, cert. denied, 439 U.S. 958, 99 S. Ct. 360, 58 L. Ed. 2d 350 (1978). See also Eubanks v. Insurance Co., 44 N.C.App. 224, 261 S.E.2d 28 (1979) (allegations designated as counterclaim constituted an affirmative defense and a reply was not required).

To find that the mere inclusion of the word "all" three times in the answer and counterclaim mandates a reply on the part of plaintiff smacks of hyper-technicality. Our determination is consistent with the goal that notice pleading eliminate the formalism seen in pleading prior to the introduction of the Rules of Civil Procedure. W. Shuford, North Carolina Civil Practice & Procedure (2nd Ed.1981) Section 7-3. Accordingly, we overrule defendant's first assignment of error.

Defendant next assigns as error the failure of the trial judge specifically to consider and distribute savings accounts and stock owned by the parties at separation and, generally, the division of the marital property. For the reasons set forth below, we agree.

The initial obligation of the trial court in any equitable distribution action is to identify the marital property in accordance with G.S. 50-20 and the appropriate case law. Mauser v. Mauser, 75 N.C.App. 115, 330 S.E.2d 63 (1985). The trial court's order here failed to list or determine the status of the following significant items of property: Two bank accounts in plaintiff's name in the amounts of $203.28 and $184.59, respectively; plaintiff's RJR Employees' Savings and Investment Plan; plaintiff's RJR Stock Purchase Plan; and plaintiff's RJR Nabisco Stock Bonus Plan. A distribution order failing to list all the marital property is fatally defective, Little v. Little, 74 N.C.App. 12, 327 S.E.2d 283 (1985), and, further, marital property may not be identified by implication. Id.

*705 The trial court must also order the division and distribution of all the marital property. White v. White, 312 N.C. 770, 324 S.E.2d 829 (1985). The division and distribution of marital property need not lay solely within the province of the trial court. The parties themselves may determine the distribution of the marital property through written agreement, G.S. 50-20(d); Case v. Case, 73 N.C.App. 76, 325 S.E.2d 661, disc. rev. denied, 313 N.C. 597, 330 S.E.2d 606 (1985), or by oral agreement, McIntosh v. McIntosh, 74 N.C.App. 554, 328 S.E.2d 600 (1985). In the trial below the parties made an oral agreement as to the division of the majority of their marital property but neglected to guard against subsequent misunderstandings of their oral stipulation.

The McIntosh court prescribed certain procedures for the trial court in the event that oral stipulations were entered into between the parties. There Judge Johnson said:

[I]t must affirmatively appear in the record that the trial court made contemporaneous inquiries of the parties at the time the stipulations were entered into. It should appear that the court read the terms of the stipulations to the parties; that the parties understood the legal effects of their agreement and the terms of the agreement, and agreed to abide by those terms of their own free will.

McIntosh at 556, 328 S.E.2d 602. These rules were articulated, not to discourage oral stipulations, but rather to fully protect the rights of the parties. Id. The record here does not reflect compliance with the standards prescribed by McIntosh regarding the parties' oral stipulation. Accordingly, we sustain defendant's second assignment of error.

Our disposition of the second assignment of error makes it unnecessary to address defendant's other assignments of error. The judgment of the trial court is vacated and the case remanded for further proceedings consistent with this opinion.

Reversed and remanded.

WELLS and MARTIN, JJ., concur.