Trogdon v. Trogdon

388 S.E.2d 212 (1990)

97 N.C. App. 330

Patricia McNulty TROGDON v. Calvin Lancaster TROGDON.

No. 8921DC95.

Court of Appeals of North Carolina.

February 6, 1990.

Bailey and Thomas by David W. Bailey, Jr. and John R. Fonda, Winston-Salem, for plaintiff-appellee.

Morrow, Alexander, Tash, Long & Black by Clifton R. Long, Jr., Winston-Salem, for defendant-appellant.

PHILLIPS, Judge.

Plaintiff sued for an absolute divorce; defendant counterclaimed for an order of *213 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. 740, 379 S.E.2d 271, disc. rev. denied, 325 N.C. 270, 384 S.E.2d 513 (1989).

Affirmed.

WELLS and PARKER, JJ., concur.