330 S.E.2d 270 | N.C. Ct. App. | 1985
Ann F. McKENZIE
v.
Owen Ray McKENZIE.
Court of Appeals of North Carolina.
Daniel H. Monroe and Latham and Wood by James F. Latham and William Eagles, Graham, for plaintiff.
*271 Vernon, Vernon, Wooten, Brown & Andrews, P.A. by Wiley P. Wooten and T. Randall Sandifer, Burlington, for defendant.
JOHNSON, Judge.
At the time the order of equitable distribution was entered, the parties had not received an absolute divorce, nor had they received an absolute divorce at the time of oral argument, as counsel conceded in oral argument. G.S. 50-21(a) specifically provides:
Upon application of a party to an action for divorce, an equitable distribution of property shall follow a decree of absolute divorce.... The equitable distribution may not precede a decree of absolute divorce. (Emphasis added.)
Although the court had jurisdiction over the parties and their property, it was without authority to enter the order of equitable distribution preceding an absolute divorce in light of the explicit language of G.S. 50-21(a). The order of the trial court is a nullity and must be vacated.
Vacated.
WHICHARD and PHILLIPS, JJ., concur.
PHILLIPS, Judge, concurring.
Though the judicial settlement of marital suits on almost any terms agreeable to the parties is strongly encouraged by public policy, the judicial settlement undertaken in this instance has been expressly forbidden by our law making body and we cannot enforce it. Equitable distribution before divorce has been banned, I suppose, because the General Assembly is interested in achieving finality as well as equity in marital adjudications and a distribution made before the decree is more subject to upset than one made after the decree. In all events the legislative ban is too plain for us to disregard it, though doing so might expedite the settlement of this particular case.
