386 S.E.2d 602 | N.C. Ct. App. | 1989
Robert Curtis STONE, Sr., Plaintiff,
v.
Mary W. STONE, Defendant.
Court of Appeals of North Carolina.
*603 Tucker, Hicks, Hodge and Cranford, P.A. by Edward P. Hausle, Charlotte, for plaintiff, appellee.
Britt & Britt by Evander M. Britt, III, Lumberton, and Bailey & Dixon by Gary S. Parsons and Cathleen M. Plaut, Raleigh, for defendant, appellant.
HEDRICK, Chief Judge.
In violation of Rule 7(b)(1), plaintiff failed to set out in the motion to dismiss the number of the rule pursuant to which the motion was made. We assume, however, the motion was made pursuant to Rule 12(b) or Rule 56. The detailed findings of fact made by Judge Richardson's ruling on the motion were unnecessary whether the motion was made pursuant to Rule 12(b) or Rule 56. In any event, plaintiff's motion to dismiss amounts to nothing more than a collateral attack on the judgment entered by Judge Gardner on 8 June 1988 wherein the parties were divorced absolutely, and defendant's claim for equitable distribution was left open for trial at a later date. This is made clear when we consider Finding of Fact No. 13 made by Judge Richardson:
That the reservation of the equitable distribution action in the divorce judgment was improper since defendant failed to file a counterclaim or separate action for equitable distribution on or before the date the judgment for divorce absolute was granted by this Court.
The rulings, orders and judgments of the trial judge are presumed to be correct, and the burden is on the appealing party to rebut the presumption of verity on appeal. No appeal was taken from the judgment entered 8 June 1988. Obviously, Judge Gardner had jurisdiction and authority to enter the judgment. It is also obvious that Judge Richardson had no authority as a trial judge to find error and reverse or vacate Judge Gardner's order dated 8 June 1988.
We hardly need say that the better practice would be for members of the Bar to *604 actually file and assert claims for equitable distribution, and for the courts to require that pleadings asserting such claims be filed before the judgment of divorce is granted.
We hold that Judge Richardson had no authority to enter an order dismissing defendant's claim for equitable distribution, and the same will be vacated, and the cause is remanded to the District Court, Robeson County for further proceedings with respect to defendant's claim for equitable distribution.
Vacated and remanded
ARNOLD and WELLS, JJ., concur.
