Garrison v. Garrison

369 S.E.2d 628 (1988)

Robert C. GARRISON v. Ramona GARRISON.

No. 8722SC1247.

Court of Appeals of North Carolina.

July 5, 1988.

*629 Harris, Pressly & Thomas by Edwin A. Pressly, Statesville, for plaintiff, appellee.

Ronald Williams, Charlotte, for defendant, appellant.

HEDRICK, Chief Judge.

The only question before us is whether the judge of the superior court erred in ordering the property described in the special proceeding partitioned pursuant to the provisions of G.S. 46-1 et seq. We hold it did, vacate the order of the superior court, and remand the proceeding to the superior court for entry of an order dismissing the special proceeding.

The district court division is the proper division without regard to the amount in controversy, for the trial of civil actions and proceedings for annulment, divorce, equitable distribution of property, alimony, child support, child custody and the enforcement of separation or property settlement agreements between spouses, or recovery for the breach thereof.

G.S. 7A-244 (emphasis added). G.S. 50-11(e), in pertinent part, provides:

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; except, the defendant may bring an action or file a motion in the cause for equitable distribution within six months from the date of the judgment in such a case....

The parties in the present case invoked the jurisdiction of the district court to equitably distribute their marital property in the action for absolute divorce and equitable distribution of their marital property. The district court did not lose jurisdiction to equitably distribute the marital property because of its failure to enter a judgment in the equitable distribution case before the special proceeding seeking partition of the marital property was filed in the office of the clerk of superior court. The superior court has no authority to partition marital property pursuant to the provisions of G.S. 46-1 et seq. where, as here, the jurisdiction of the district court has been properly invoked to equitably distribute such marital property. Had the parties not asserted their right to have the property equitably distributed pursuant to G.S. 50-20, either tenant in common could have filed a special proceeding to have the property partitioned as provided by G.S. 46-1 et seq.

For the reasons set out above, the order of the superior court dated 21 October 1987 is vacated, and the proceeding is remanded to the superior court for the entry of an order dismissing the special proceeding to have the property in question partitioned pursuant to G.S. 46-1 et seq.

Vacated and remanded.

WELLS and COZORT, JJ., concur.