Farquhar v. FarquharÂ
254 N.C. App. 243
N.C. Ct. App.2017Background
- Beverly and Peter Farquhar were first married in 1993, separated in 2003, and Beverly filed suit (2003) seeking divorce from bed and board, equitable distribution, post-separation support, alimony, and fees in Caldwell County; Peter answered and counterclaimed.
- A judgment of divorce was entered on April 23, 2004, but claims for alimony and equitable distribution remained pending.
- The parties remarried in May 2005 and then filed a joint voluntary dismissal of the pending claims on August 26, 2005.
- They separated again in 2015; Beverly reasserted claims for alimony and equitable distribution based on the first marriage in a 2015 Guilford County complaint.
- Peter moved to dismiss under Rule 12(b)(1) (and 12(b)(6)), arguing Rule 41(a)’s one-year refiling limit barred Beverly’s revived claims; the district court agreed and dismissed for lack of subject-matter jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Beverly’s 2015 claims for alimony and equitable distribution arising from the first marriage are barred by Rule 41(a)’s one-year refiling rule after the parties’ joint voluntary dismissal in 2005 | Beverly: The one-year refiling period was effectively tolled during the parties’ second marriage because she could not realistically refile while remarried, creating a loophole | Peter: The joint voluntary dismissal triggered Rule 41(a)’s one-year limit; Beverly failed to refile within one year so the claims are barred | Court: Rules in favor of Peter—Stegall controls; because the claims were pending at divorce then voluntarily dismissed, Beverly had one year to refile and failed to do so, so claims are barred and dismissal for lack of jurisdiction is proper |
Key Cases Cited
- Harris v. Pembaur, 84 N.C. App. 666 (1987) (defines subject-matter jurisdiction as conferred by constitution or statute)
- Burgess v. Burgess, 205 N.C. App. 325 (2010) (Rule 12(b)(1) dismissal reviewed de novo)
- In re Appeal of the Greens of Pine Glen Ltd. P'ship, 356 N.C. 642 (2003) (explains de novo standard of review)
- Holley v. Hercules, Inc., 86 N.C. App. 624 (1987) (Rule 41(a)(1) extends refiling time when same parties and claim are involved)
- Stegall v. Stegall, 336 N.C. 473 (1994) (when alimony and equitable distribution claims are pending at divorce and later voluntarily dismissed, they may be refiled within Rule 41(a)’s one-year period)