CHRISTINE B. ARISPE,
Plaintiff-Appellant,
v
.
Guilford County
No. 01 CVD 4121
SAMUEL J. ARISPE,
Defendant-Appellee.
Gabriel Berry & Weston, L.L.P., by M. Douglas Berry, for
plaintiff-appellant.
No brief filed by defendant-appellee.
McGEE, Judge.
Christine B. Arispe (plaintiff) filed a pro se and unverified
complaint on 6 February 2001 praying for an absolute divorce from
Samuel J. Arispe (defendant) based on one year's separation.
Defendant did not file an answer to plaintiff's complaint. In an
order entered 30 March 2001, the trial court granted plaintiff an
absolute divorce.
Plaintiff's attorney filed a motion to set aside the divorce
judgment on 8 April 2003, pursuant to N.C. Gen. Stat. § 1A-1, Rule
60(b). Plaintiff's right to file claims for alimony and equitable
distribution had been terminated by the entry of the divorcejudgment. Plaintiff's motion was denied by the trial court in an
order entered on 9 April 2003.
Plaintiff subsequently filed a motion pursuant to Rules 52,
59, and 60 of the North Carolina Rules of Civil Procedure,
requesting that the trial court: (1) alter or amend the 30 March
2001 divorce judgment and 9 April 2003 order to indicate that
plaintiff had pending claims for post-separation support, alimony,
and equitable distribution, or (2) set aside the divorce judgment
on the basis of plaintiff's first motion pursuant to Rule 60(b), or
(3) declare the divorce judgment void for want of subject matter
jurisdiction. The trial court denied plaintiff's motion in an
order entered 1 May 2003. Plaintiff appeals.
N.C. Gen. Stat. . 50-8 (2003) provides "[i]n all actions for
divorce the complaint shall be verified in accordance with the
provisions of Rule 11 of the Rules of Civil Procedure and G.S.
1-148." See Boyd v. Boyd, 61 N.C. App. 334, 300 S.E.2d 569 (1983).
In Boyd, this Court noted, in support of its holding, that "'[i]n
a divorce action a verification is required as an essential part of
the complaint. . . . The want of a proper verification is a fatal
defect, and is a cause for dismissal of the action.'" Boyd, 61
N.C. App. at 336, 300 S.E.2d at 570 (citation omitted). A
verification is therefore necessary in order for the trial court to
obtain subject matter jurisdiction. Id.; see also Suzanne
Reynolds, Lee's North Carolina Family Law § 7.32 (5th ed. 1999)("The
Supreme Court has concluded that verification of the complaint is
jurisdictional so that the want of proper verification is cause fordismissal of the action."). "The court's lack of subject matter
jurisdiction cannot be waived and can be raised at any time,
including for the first time on appeal to this Court." In re
Triscari Children, 109 N.C. App. 285, 288, 426 S.E.2d 435, 437
(1993).
Neither party contends that plaintiff's complaint was properly
verified. Because we hold the trial court lacked subject matter
jurisdiction due to plaintiff's failure to verify her complaint, we
reverse the trial court's 30 March 2001 order and judgment which
granted the parties an absolute divorce. In view of the foregoing,
we need not review plaintiff's appeals from the orders dated 9
April 2003 and 1 May 2003. Furthermore, we need not consider
plaintiff's remaining assignment of error.
Reversed.
Judges TIMMONS-GOODSON and TYSON concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***