North Carolina Divorce Lawyers Blog
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Voluntary Dismissal and Post Separation Support

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BROSNAN V. CRAMER, 2023-NCCOA-______ (2023). 

  1. Facts: The facts here are simple. Plaintiff and Defendant married in 2008. After years of marriage, Plaintiff filed claims for alimony, child custody, child support, equitable distribution, post separation support (PSS), and attorney fees on October 15, 2020. Defendant filed his response on January 20, 2021. Plaintiff filed her reply on March 15, 2021. Then Plaintiff filed a voluntary dismissal of her pending PSS claim on April 8, 2021. She dismissed her PSS claim without prejudice. Then in a separate lawsuit, Defendant filed a complaint for divorce on April 19, 2021. Plaintiff accepted service of that complaint and did not file any answer to the divorce complaint. As such, Defendant moved for summary judgment and a divorce was granted on June 9, 2021. A mere 20 days later, Plaintiff sought to resurrect her dismissed PSS claim by filing a motion in the cause. Defendant filed a motion to dismiss. Trial court denied the motion to dismiss and ordered Defendant pay PSS. Defendant appeals. 

 

  1. Issue:  Did the trial court err in denying Defendant’s motion to dismiss? 

 

  1. Holding: Yes. 

 

  1. Rationale:  At the outset, the Court granted Defendant’s petition for writ of certiorari because a PSS order is an interlocutory order. However, because the Court can grant writs in the name of judicial economy or some other exigent purpose, the Court decided these circumstances warranted immediate appellate review. Normally, a claim dismissed via Rule 41 without prejudice can be commenced again within one year after dismissal. However, when the Rules of Civil Procedure and another, more specific, section of the Statutes conflict, Courts generally should use the statute that is more directly and specially applicable. Since the Rules of Civil procedure are generally applicable, whereas the rules for PSS and divorce are specific to this case, the Court applied those divorce/PSS statutes. Those statutes required that the PSS claim be pending in order to survive an entry of divorce. Because Plaintiff dismissed her PSS claim, it could not have been pending at the time of the divorce. Therefore, the trial court lost subject matter jurisdiction over the PSS claim due to the divorce.