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Brannock v. Brannock12/7/1999
Filed: 7 December 1999
Appeal by defendant from summary judgment entered 25 June 1998 by Judge A. Moses Massey in Surry County District Court. Heard in the Court of Appeals 12 May 1999.
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 (repealed by 1995 N.C. Sess.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 (repealed).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 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 . . . 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. § 50-16.1A(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 " laintiff'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 the marriage and prior to or on the date of separation,
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