Defendant appeals the trial court’s 25 June 1998, nunc pro tunc 23 April 1998, grant of summary judgment in favor of plaintiff. Defendant contends the trial court erred by allowing plaintiff to pursue a new alimony claim (Claim # 2) under N.C.G.S. § 50-16.1A et seq. (1995) following her voluntary dismissal of a pending alimony claim (Claim #1) asserted under N.C.G.S. § 50-16.1 et seq. (repealed by 1995 N.C. Sess. Laws ch. 319, § 1, effective October 1,1995). We reverse the trial court.
Pertinent undisputed facts and relevant procedural history include the following: Plaintiff and defendant were married 24 May 1976 and separated 14 July 1994. Defendant instituted a divorce action 17 July 1995, and plaintiff responded 14 August 1995 with an answer and counterclaim seeking alimony pursuant to G.S. § 50-16.1 et seq. (repealed). Defendant’s 25 August 1995 Reply asserted as an affirmative defense that plaintiff had
engaged in an adulterous relationship . . . [and that] N.C.G.S. § 50-16.6 specifically does not allow alimony to be paid when the issue of adultery is found against the spouse seeking alimony.
Defendant also filed and served upon plaintiff a request for admissions, eliciting therein acknowledgment by plaintiff that she *637 had “engaged in a sexual relationship since the date of separation from [defendant] with a person other than [defendant].” Plaintiff failed to respond thereto and the parties do not dispute that defendant’s request was deemed admitted by operation of N.C.G.S. § 1A-1, Rule 36 (1990).
Plaintiff and defendant were divorced 11 April 1996, the judgment providing that matters pertaining to alimony were “retained by the Court for hearing at a later date.” On 21 March 1997, plaintiff filed a notice of voluntary dismissal without prejudice, see N.C.G.S. § 1A-1, Rule 41(a) (1990) (Rule 41(a)), voluntarily dismissing Claim #1.
On 2 April 1997, plaintiff filed a complaint asserting Claim # 2 and alleging in pertinent part as follows:
5. At the time the judgment of absolute divorce was entered . . . Plaintiff had pending a counterclaim for alimony. . . .
7. Pursuant to Rule 41 . . . [and] Stegall v. Stegall,336 N.C. 473 ,444 S.E.2d 177 (1994), Plaintiff is entitled to file a new action based upon the same claims as originally asserted in her counterclaim for alimony [Claim #1] . . . within one year of the voluntary dismissal without prejudice of her counterclaim.
13. The Plaintiff is automatically entitled to an award of alimony by virtue of the Defendant’s participating in an act of illicit sexual behavior as defined in N.C.G.S. § 50-16.lA(3)a, during the marriage and prior to the date of separation. The Plaintiff did not participate in an act of illicit sexual behavior as defined in N.C.G.S. § 50-16.1A(3)a, during the marriage and prior to the date of separation.
Defendant’s 11 July 1997 answer and motion to dismiss pleaded, inter alia, plaintiff’s adultery prior to divorce as a bar to “[plaintiff’s demand for alimony herein.”
On 26 August 1997, defendant filed a stipulation, “for the purposes of Plaintiff’s claim for alimony” in Claim # 2, conceding he had committed illicit sexual behavior under N.C.G.S. § 50-16.3A(a) (1995). The referenced statute provides:
(a) ... If the court finds that the dependent spouse participated in an act of illicit sexual behavior [including adultery] . . . during *638 the marriage and prior to or on the date of separation, the court shall not award alimony. If the court finds that the supporting spouse participated in [adultery] . . . during the marriage and prior to or on the date of separation, then the court shall order that alimony be paid to a dependent spouse.
G.S. § 50-16.3A(a).
Following a 10 December 1997 trial court order to compel, plaintiff filed a response to admissions. Plaintiff admitted therein that she had “engaged in sexual relationships with a person other than” defendant and that she had “not remained celibate from the date of separation until [the] date of divorce.”
Plaintiff moved for summary judgment 17 March 1998 as to the issue of her entitlement to alimony under G.S. § 50-16.3A(a). She argued there remained no issue of material fact in view of defendant’s uncontested status as supporting spouse, his stipulated participation in illicit sexual behavior as defined in the new statute during the marriage and prior to separation, and the absence of plaintiffs misconduct, again as provided in the new law, prior to separation. The trial court agreed and allowed plaintiffs motion 25 June 1998. Defendant appeals.
We note preliminarily the record contains no indication that defendant interjected notice of appeal upon plaintiffs voluntary dismissal under Rule 41(a) of Claim # 1. This Court has held that an involuntary dismissal under N.C.G.S. § 1A-1, Rule 41(b) (1990) (Rule 41(b)), constitutes a discretionary action of the trial court and a party who fails to appeal such dismissal is bound thereby.
Jones v. Summers,
It thus appears any attempt by defendant to appeal plaintiffs Rule 41(a)(1) dismissal of Claim # 1 would have been ineffective.
See
N.C.R. App. P. 3(a) (appeal may be taken only “from
a judgment or order of a superior or district court
rendered in a civil action”) (emphasis added). Accordingly, defendant’s failure to appeal does not preclude our consideration herein of the assignments of error and arguments addressed to dismissal of Claim # 1.
See also Wells v. Wells,
We turn therefore to defendant’s argument that Claim # 2 failed to qualify as “a new action based on the same claim” under Rule 41(a)(1) so as to permit filing of Claim # 2 within one year of plaintiff’s dismissal of Claim # 1. G.S. § 1A-1, Rule 41(a)(1). According to defendant, G.S. § 50-16.1A et seq. created a claim of alimony distinct from that set out in repealed G.S. § 50-16.1 et seq. Defendant points to significant substantive differences affecting, inter alia, entitlement to alimony. We conclude defendant’s argument is well founded.
Rule 41(a) provides:
If an action commenced within the time prescribed therefor, or any claim therein, is dismissed without prejudice under this subsection, a new action based on the same claim may be commenced within one year after such dismissal....
G.S. § 1A-1, Rule 41(a)(1).
Our courts have required the “strictest factual identity between the original” claim,
Goodson v. Lehmon,
Notwithstanding, it appears a party may voluntarily dismiss a pending alimony claim following entry of a divorce judgment and thereafter file within one year under Rule 41(a) an action based upon the earlier alimony claim.
Stegall v. Stegall,
Pertinent to the case sub judice and effective 1 October 1995, G.S. § 50-16.1A et seq. repealed the existing alimony statute, G.S. § 50-16.1 et seq., and became applicable to civil actions filed on or after said date, specifically excluding pending litigation or motions in the cause seeking to modify orders or judgments already in effect on that date. G.S. § 50-16.1A (Act of June 21,1995, ch. 319, § 12,1995 N.C. Sess. Laws 641, 649) (provisions “shall not apply to pending litigation, or to future motions in the cause seeking to modify orders or judgments in effect on October 1, 1995”).
We begin with the observation that plaintiffs reference to
Stegall
may not be beneficial to her position before this Court.
Stegall
in effect held that an alimony claim pending at the time of a divorce
*641
judgment and subsequently voluntarily dismissed may be refiled within the one year period permitted by Rule 41(a)(1).
Stegall,
If, therefore, as plaintiff argues to this Court, Claim # 2 is “based on the same claim,” G.S. § 1A-1, Rule 41(a)(1), advanced in Claim # 1, it would then appear that Claim # 2 was “pending” 1 October 1995 and the provisions of G.S. § 50-16.1A
et seq.
would not be applicable.
See McFetters v. McFetters,
The new statute has been described as effecting a “wholesale revision,” Sally B. Sharp, Step by Step: The Development of the Distributive Consequences of Divorce in North Carolina, 76 N.C.L. Rev. 2018 (1998); see id. at n.1 (“definitions of a dependent spouse and a supporting spouse ... are virtually the only portions of the new alimony act. . . that have remained in their original form”), in North Carolina alimony law, “basically replacing],” id. at 2029, prior law with new “principles, concepts and directives that are inconsistent with previous cáse law,” id. at 2031, and laying a “foundation for the development of many fundamental principles thus far unknown” to our State’s domestic law, id. at 2021. In short, the new alimony statute created: 1) postseparation support, a new category of support replacing alimony pendente lite, 2) less restrictive dependency require *642 ments, 3) greater flexibility in determining the amount and duration of alimony, including a marked departure from a standard of living assessment, and, most significantly 4) less emphasis on fault. See id. at 2022.
For example, North Carolina courts previously were required to conduct a completely fault-based assessment to determine entitlement to alimony, whereas under the new statute fault merely constitutes a factor to be considered in resolving support eligibility and amount.
See id.
at 2031-32. Prior law entitled a dependent spouse to alimony upon proof the supporting spouse had committed one of ten fault grounds set forth under G.S. § 50-16.2 (repealed), including adultery. G.S. § 50-16.2(1) (repealed);
see Adams v.
Adams,
By contrast, the new alimony statute has replaced the concept of adultery with a broader category denominated “illicit sexual behavior,” G.S. § 50-16.lA(3)(a), encompassing, by way of example, adultery committed “during the marriage and prior to or on the date of separation,” G.S. § 50-16.1A(3). In focusing solely upon misconduct prior to separation, the new law substantively changed previous concern with acts occurring anytime before divorce.
In addition, the new statute entirely eliminated the. absolute defense provided in G.S. § 50-16.6(a) (repealed). On the issue of adultery, G.S. § 50-16.3A(a) states:
If the court finds that the dependent spouse participated in an act of illicit sexual behavior . . . during the marriage and prior to or on the date of separation, the court shall not award alimony. If the court finds that the supporting spouse participated in an act of illicit sexual behavior . . . during the marriage and prior to or on the date of separation, then the court shall order that alimony be *643 paid to a dependent spouse. If the court finds that the dependent and the supporting spouse each participated in an act of illicit sexual behavior . . . then alimony shall be denied or awarded in the discretion of the court after consideration of all of the circumstances.
G.S. § 50-16.3A(a). The foregoing “affirmative mandate that a proven adulterous supporting spouse be ordered to make alimony payments is completely new to North Carolina law.” S. Sharp, 76 N.C.L. Rev. at 2058. Also “completely new,” id., is the provision deferring to the trial court’s discretion the decision of whether to award alimony in the instance where both the supporting and dependent spouse “each participated in an act of illicit sexual behavior.” G.S. § 16.3A(a).
In the case sub judice, defendant, the supporting spouse, raised the absolute defense under G.S. § 50-16.6(a) (repealed), of plaintiffs postseparation adultery in his reply to Claim #1. However, plaintiff maintains this preexisting absolute defense is not available to defendant under Claim # 2 filed pursuant to G.S. § 50-16.3A. In addition, according to plaintiff, defendant may properly be subjected to liability under statutory provisions not enacted at the time Claim # 1 was filed.
The issue, therefore, is whether the “new action based on the same claim” language of Rule 41(a)(1) will permit plaintiffs prosecution of Claim # 2, filed within one year of her dismissal of Claim # 1. We conclude the trial court erroneously resolved this issue in favor of plaintiff.
The leading North Carolina case addressing retroactive statutory application,
Smith v. Mercer,
*644
Although the decedent’s death occurred prior to 14 April 1969, no action based upon the death was pending on that date.
Id.
at 333,
The Court reviewed “general principles” involved in determining whether a statute should be construed to apply prospectively or retroactively:
“Ordinarily, an intention to give a statute a retroactive operation will not be inferred .... It is especially true that the statute or amendment will be regarded as operating prospectively only, where . . . the effect of giving it a retroactive operation would be to . . . destroy a vested right, or create a new liability in connection with a past transaction, [or] invalidate a defense which was good when the statute was passed . . . .” “A retrospective law, in a legal sense, is one which takes away or impairs vested rights acquired under existing laws, or creates a new obligation and imposes a new duty, or attaches a new disability, in respect of transactions or considerations already passed . . . .”
Id.
at 337-38,
Numerous subsequent cases have cited and relied upon the holding in
Smith.
In
White v. American Motors Sales Corp.,
Further, in
Gardner v. Gardner,
[t]he general rule of construction is that an amendment which invalidates a preexisting statutory defense will, in the absence of a clear legislative intention otherwise, be given prospective effect only.
Id.
Notably, we further observed that defendant wife would not have been entitled to assert recriminatory defenses had plaintiff instituted divorce proceedings following enactment of the statutory amendment, but because the divorce complaint had initially been filed prior to amendment, “reference to the entire history of litigation between the parties,”
id.
at 46,
In the case sub judice, defendant pled an absolute defense to Claim #1 pursuant to G.S. § 50-16.6(a) (repealed), then in effect. By virtue of her failure to respond to defendant’s request for admissions, plaintiff had affirmatively established the existence of a factual basis for defendant’s absolute defense. Thereafter, in Claim # 2, plaintiff sought relief under G.S. § 50-16.1A et seq., which abolished defendant’s previously established absolute adultery defense, shifted the *646 focus from pre-divorce misconduct to pre-separation misconduct, and subjected defendant to automatic liability for his admitted misconduct prior to separation.
To conclude, considering the resultant “invalidation]” of a statutory absolute defense defendant enjoyed as a “vested right,”
Smith,
Therefore, based upon the foregoing, we hold Claim # 1 and Claim # 2 are neither “substantially the same” nor “involv[e] . . . the same right,”
Cherokee Ins. Co.,
Notwithstanding, plaintiff points to
Harwood v. Harrelson Ford, Inc.,
In
Harwood,
this Court approved an award of prejudgment interest to three plaintiffs in actions originally filed 13 August 1980, voluntarily dismissed without prejudice 29 April 1982, and reinstituted 26 August 1982 pursuant to Rule 41(a)(1).
Id.
at 446,
In ruling in favor of the three plaintiffs, this Court emphasized that
[t]he Legislature’s purpose in amending G.S. 24-5 was to provide an incentive to insurance companies to expeditiously litigate actions they are involved in.
Id.
at 450,
when plaintiffs filed their complaint, insurance companies were aware of the legislature’s expressed intent to encourage prompt resolution of lawsuits. Yet, over three years have passed since the three plaintiffs filed their lawsuit and their judgment is yet to be satisfied. We conclude that with respect to [these three] plaintiffs . . . the [trial court’s award of prejudgment interest] is consistent with the legislature’s intent as expressed in G.S. 24-5.
Id.
Therefore, even assuming
arguendo
the amendment to G.S. § 24-5 allowing recovery of prejudgment interest created a new substantive right somehow similar to that we have held to have been effected by the “wholesale revision,” S. Sharp, 76 N.C.L. Rev. at 2018, of North Carolina alimony law, it is apparent the ruling in
Harwood
was instead primarily a pointed rebuke to the defendants’ apparent disregard of the legislatively enunciated public policy “to cure past delays in litigation,”
Harwood,
In the foregoing context, it is interesting to particularize the chronological “history of litigation between the parties,”
Gardner,
Based upon the foregoing, the trial court’s grant of summary judgment in favor of plaintiff is reversed and this case remanded for entry of summary judgment in favor of defendant.
Reversed and remanded with instructions.