Lockamy v. Lockamy , 111 N.C. App. 260 ( 1993 )

432 S.E.2d 176 (1993) 111 N.C. App. 260

Judy A. LOCKAMY
v.
Johnny D. LOCKAMY.

No. 9213DC827.

Court of Appeals of North Carolina.

July 20, 1993.

Rountree & Seagle by George Rountree, III and George K. Freeman, Jr., Wilmington

No brief filed for plaintiff-appellee.

ORR, Judge.

Defendant contends that the trial court lacked subject matter jurisdiction to hear any claim for equitable distribution because neither party asserted the right to equitable distribution before the judgment of absolute divorce, as required by N.C.Gen.Stat. § 50-11(e) (Supp.1992). We agree.

N.C.G.S. § 50-11(e) provides that: "[a]n absolute divorce obtained within this state shall destroy the right of a spouse to an equitable distribution of the marital property under G.S. 50-20 unless the right is asserted prior to judgment of absolute divorce...."

The failure to specifically apply for equitable distribution prior to a judgment of absolute divorce will destroy the statutory right to equitable distribution. Howell v. Howell, 321 N.C. 87, 361 S.E.2d 585 (1987); Carter v. Carter, 102 N.C.App. 440, 402 S.E.2d 469 (1991); Lutz v. Lutz, 101 N.C.App. 298, 399 S.E.2d 385, cert. denied, 328 N.C. 732, 404 S.E.2d 871 (1991); Goodwin v. Zeydel, 96 N.C.App. 670, 387 S.E.2d 57 (1990).

In her initial complaint out of which this appeal lies, plaintiff alleges in part in paragraph 14, "That the plaintiff anticipates that an action for an absolute divorce and equitable distribution shall be filed when it is appropriate to do so." In no subsequent pleading in this case nor in any other case does a request for an equitable distribution of marital assets occur.

We note that in its order of absolute divorce, the trial court found that "all matters of ... Equitable Distribution of property are reserved for future disposition in a separate pending action." However, no such separate pending action existed at the time of the judgment of divorce on 12 July 1990. Likewise, the fact that both parties participated in the equitable distribution hearing does not save plaintiff. Jurisdiction over the subject matter cannot be conferred upon a court by consent, waiver or estoppel. Pulley v. Pulley, 255 N.C. 423, 121 S.E.2d 876, aff'd, 256 N.C. 600, 124 S.E.2d 571, appeal dismissed by, 371 U.S. 22, 83 S.Ct. 120, 9 L.Ed.2d 96 (1961).

We therefore hold that the order of equitable distribution is reversed on the grounds that the trial court did not have subject matter jurisdiction to decide the issue.

Reversed.

WELLS and McCRODDEN, JJ., concur.