Collar v. Collar

ORR, Judge.

This is plaintiffs second appeal to this Court challenging the validity of the 3 April 1985 consent judgment. In the companion case, Collar v. Collar, 86 N.C. App. 105, 356 S.E. 2d 405 (1987), plaintiff moved to set aside that portion of the trial court’s judgment addressing distribution of marital property on the grounds that it violated the prohibition in N.C.G.S. § 50-21 against court-ordered equitable distribution before the granting of absolute divorce. Defendant responded in that case by contending that the 3 April 1985 judgment was a N.C.G.S. § 50-20(d) agreement, which is excepted from the N.C.G.S. § 50-21 restriction.

Plaintiff correctly acknowledges that our decision in the above mentioned case determines the present appeal. In that prior appeal, we held that the 3 April 1985 judgment did not comply with the requirements of N.C.G.S. § 50-20(d), was in violation of the N.C.G.S. § 50-21 prohibition, and, thus, was null and void. It is unnecessary to repeat in this case the original discussion of that holding. Instead we incorporate by reference our prior opinion.

Therefore, the trial court’s granting of defendant’s motion for summary judgment in the present case, based on the validity of the trial court’s judgment, was an error. We vacate the trial court’s decision, and remand this case to the trial court for the equitable distribution of the parties’ marital property in conformity with N.C.G.S. § 50-20.

Vacated and remanded.

Judges Arnold and Phillips concur.