An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA003-946


Filed: 17 August 2004


v .                         Guilford County
                            No. 01 CVD 4121

    Appeal by plaintiff from judgment and order entered 30 March 2001, order entered 9 April 2003, and order entered 1 May 2003 by Judge Wendy M. Enochs in District Court, Guilford County. Heard in the Court of Appeals 21 April 2004.

    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.
    Judges TIMMONS-GOODSON and TYSON concur.
    Report per Rule 30(e).

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