in the Court of Appeals 17 May 2017.
by plaintiff from order entered 20 July 2016 by Judge Susan
R. Burch in Guilford County District Court. No. 15 CVD 9917
C. Massie for plaintiff-appellant.
Slaughter & Black, P.A., by Ashley D. Bennington, for
Beverly Farquhar (Beverly) appeals from an order dismissing
her claims for alimony and equitable distribution pursuant to
Rule 12(b)(1) of the North Carolina Rules of Civil Procedure.
For the reasons that follow, we affirm the district
court's order of dismissal.
and defendant Peter Farquhar (Peter) have married each other
on two separate occasions. The parties were first married on
30 December 1993, and they separated approximately ten years
later, on 24 January 2003. In February 2003, Beverly filed an
action in Caldwell County District Court for divorce from bed
and board, equitable distribution, post-separation support,
alimony, and attorneys' fees (the Caldwell County
action). Three months later, Peter filed an answer in the
Caldwell County action along with his own counterclaim for
and Peter were divorced pursuant to a judgment entered 23
April 2004. However, Beverly's claims for alimony and
equitable distribution as well as Peter's claim for
equitable distribution were not resolved in any manner by the
divorce judgment. All of those claims were pending in May
2005, when the parties decided to remarry. Shortly after
entering their second marriage, Beverly and Peter entered
into a joint voluntary dismissal of their pending claims. The
joint dismissal was filed on 26 August 2005.
and Peter's second marriage lasted approximately ten
years. However, on 16 February 2015, Peter filed a verified
complaint in Guilford County District Court seeking divorce
from bed and board, injunctive relief, and return of separate
property accumulated during the second marriage. The parties
then separated for the second time on or about 1 April 2015.
Two weeks later, Beverly filed an answer to Peter's
complaint, which included counterclaims for divorce from bed
and board, post-separation support, alimony, equitable
distribution, and attorneys' fees. On 3 December 2015,
Beverly filed a verified complaint in Guilford County
Superior Court alleging claims for equitable distribution,
alimony, and attorneys' fees related to the parties'
December 2015, Peter filed a motion to dismiss Beverly's
claims arising out of the first marriage pursuant to Rules
12(b)(1) and (6) of the North Carolina Rules of Civil
Procedure. The gravamen of Peter's motion was that the
trial court lacked jurisdiction over Beverly's complaint
because the claims arising out of the first marriage were
voluntarily dismissed after the parties' second marriage
and were not refiled within one year of their dismissal, as
required by Civil Procedure Rule 41(a). For the same reasons,
Peter contended that Beverly's complaint failed to state
claims upon which relief could be granted.
hearing the motion to dismiss on 18 February 2016, and then
reconvening on 21 April 2016, the Honorable Susan R. Burch
concluded that Beverly's complaint was barred by the
application of Rule 41(a), which required her claims for
alimony and equitable distribution arising of out the first
marriage to be refiled within one year of their dismissal.
According to Judge Burch, this was so even though the parties
had remarried before filing the joint voluntary dismissal. On
20 July 2016, the district court entered an order that
memorialized its oral ruling, concluded that the court lacked
subject matter jurisdiction over the claims set forth in
Beverly's complaint, and granted Peter's motion to
dismiss. Beverly now appeals from the dismissal of her
Standard of Review
matter jurisdiction refers to the power of the court to deal
with the kind of action in question [and] is conferred upon
the courts by either the North Carolina Constitution or by
statute." Harris v. Pembaur, 84 N.C.App. 666,
667, 353 S.E.2d 673, 675 (1987) (citations omitted). An order
granting a Rule 12(b)(1) motion to dismiss for lack of
subject matter jurisdiction is subject to de novo
review. Burgess v. Burgess, 205 N.C.App. 325, 327,
698 S.E.2d 666, 668 (2010). "Under the de novo
standard of review, this Court 'considers the matter anew
and freely substitutes its own judgment for that of ...