Lisa Diann Crew v. Sidney Ellis Tillotson, Jr.

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2017-CA-01011-COA

LISA DIANN CREW APPELLANT/
CROSS-APPELLEE

v.

SIDNEY ELLIS TILLOTSON JR. APPELLEE/
CROSS-APPELLANT

DATE OF JUDGMENT: 06/21/2017
TRIAL JUDGE: HON. VICKI R. BARNES
COURT FROM WHICH APPEALED: WARREN COUNTY CHANCERY COURT
ATTORNEYS FOR APPELLANT: MARTY CRAIG ROBERTSON
WILLIAM CLINTON PENTECOST
ROBERT MARVIN PEEBLES
ATTORNEYS FOR APPELLEE: B. BLAKE TELLER
JOSHUA LAWRENCE DIXON
NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS
DISPOSITION: ON DIRECT APPEAL: AFFIRMED. ON
CROSS-APPEAL: AFFIRMED - 08/20/2019
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

BEFORE CARLTON, P.J., TINDELL AND McDONALD, JJ.

TINDELL, J., FOR THE COURT:

¶1. A North Carolina court granted Sidney Ellis Tillotson Jr. (Ellis) and Lisa Crew a

divorce. Lisa then filed a complaint for equitable distribution in the Warren County

Chancery Court. Relevant to this appeal, the chancellor determined that certain stock and

other assets Ellis acquired during the marriage from Tillotson Enterprises Inc. (TEI) failed

to constitute marital property. On appeal, Lisa argues the chancellor erroneously classified

TEI’s stock and other assets as nonmarital property, which resulted in an inequitable
distribution of the marital estate. On cross-appeal, Ellis contends the chancellor erred by not

finding that Lisa’s complaint for equitable distribution was barred by res judicata. Finding

no error, we affirm the chancellor’s judgment.

FACTS

¶2. Lisa and Ellis married in December 1978. During their marriage, they had two sons

and resided in Vicksburg, Mississippi. The parties separated on September 21, 2013. On

December 4, 2013, Lisa filed a divorce complaint with the Warren County Chancery Court.

Ellis responded and counterclaimed for separate maintenance, spousal support, and other

relief.

¶3. In January 2014, Lisa moved to North Carolina. In a complaint dated October 21,

2014, she filed for divorce in North Carolina. Lisa’s North Carolina divorce complaint made

no request for equitable distribution. On January 15, 2015, Lisa filed a motion with the

Warren County Chancery Court to dismiss her Mississippi divorce complaint without

prejudice. On February 17, 2015, the Warren County Chancery Court granted Lisa’s motion

and dismissed her Mississippi divorce complaint without prejudice.

¶4. In a May 1, 2015 judgment, a North Carolina court granted the parties a divorce. Six

days later, on May 7, 2015, Lisa filed a complaint with the Warren County Chancery Court

for equitable distribution and other relief. Lisa asked that the chancellor give full faith and

credit to the North Carolina divorce decree “and proceed to determine the financial

components of the dissolution of the parties’ marriage.” Ellis answered and denied that Lisa

was entitled to any relief. He also moved to dismiss Lisa’s complaint on the basis that her

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failure to raise equitable distribution in the North Carolina divorce proceeding barred the

issue in any subsequent proceeding.

¶5. On December 7, 2015, the chancellor entered a final judgment on Ellis’s motion to

dismiss. The chancellor found that Lisa’s failure to request equitable distribution in the

North Carolina court neither waived the issue nor barred her from raising it in the current

proceeding. The chancellor determined that the North Carolina court lacked the authority

to divide the parties’ marital estate because the court possessed neither personal nor in rem

jurisdiction over Ellis. The chancellor therefore denied Ellis’s motion to dismiss. Ellis filed

an unsuccessful motion to reconsider the denial of his motion to dismiss. He then

unsuccessfully sought an interlocutory appeal from the Mississippi Supreme Court.

¶6. In March and September 2016, the chancellor held a five-day trial on Lisa’s complaint

for equitable distribution of the marital estate. During the course of the trial, the parties

signed an agreed order giving Ellis exclusive ownership of the former marital home in

Vicksburg. Following the trial’s conclusion, the chancellor entered a 91-page memorandum

opinion and final judgment on June 21, 2017.

¶7. The chancellor found that in 1991 Ellis and Lisa formed a partnership titled E&L

Plantation through which Ellis continued his ongoing work of farming certain properties he

leased from others. While Lisa never farmed on the property or operated any equipment, she

did perform some bookkeeping for E&L Plantation. E&L Plantation was formed at a time

when Ellis’s father, Sidney Ellis Tillotson Sr. (Senior), sought to purchase some land. Senior

used equipment he had accumulated as collateral for a farm loan that E&L Plantation

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obtained. Senior later acquired about 1,200 acres of land from Sim Ramsey Jr. for $780,000.

E&L Plantation paid Senior $25,000 in rent for property that the partnership rented from

Senior. Ellis testified that he used the farm loan obtained by E&L Plantation to pay Senior

the $25,000 in rent. Ellis’s brother, Mark Tillotson, and a tenant named Roy Goode also paid

$25,000 each in rent to Senior. Senior used these rent sums, plus another $25,000 that he

provided himself, to make the $100,000 down payment on the 1,200 acres. Pursuant to a

deed of trust executed by Senior, Ramsey financed the remaining $680,000 for Senior to

purchase the land.

¶8. In May 1994, Senior formed TEI. The corporation issued 333 and 1/3 shares of stock

each to Senior, Ellis, and Mark. Also in 1994, Senior signed a deed and conveyed certain

property he had purchased from Ramsey to TEI. Ellis testified that around 1995 his father

and brother both began to experience serious financial problems. Senior and Mark

eventually surrendered their stock, which totaled 666 and 2/3 shares, back to TEI. As a

result, on January 3, 1996, Ellis became TEI’s sole shareholder.

¶9. Ellis testified that he farmed under E&L Plantation until Lisa filed for a divorce.

According to Ellis, E&L Plantation’s profits were used to pay bills for the marital household.

E&L Plantation rented TEI’s property. In 1995, E&L Plantation lost money, and Ellis and

Lisa used $30,000 from Lisa’s 401K account to keep the partnership afloat. Some of the

money was also used to remodel the marital home, which the parties used as collateral for

E&L Plantation in 1996. Lisa testified that she was not responsible for the debt on any

businesses other than E&L Plantation.

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¶10. On June 3, 2004, TEI purchased real property from Ernest Thomas. On June 12,

2007, TEI also purchased real property from James and Mary Duke. Ellis had been renting

the Dukes’ property since 1986. Ellis testified that no marital assets were used to purchase

the Dukes’ property. Instead, he stated that TEI purchased the Dukes’ property by obtaining

a loan from River Hills Bank and that rent sums from TEI’s hunting and farming leases were

used to pay the bank loan.

¶11. Lisa and Ellis stipulated to the chancellor that TEI owned three pieces of equipment

valued at $20,700. The chancellor also found that TEI owned four separate tracts of land

with appraised values totaling $3,101,000. The debt on the real property amounted to

$602,095.53, and the equity in the real property amounted to $2,498,904.47. The chancellor

therefore found TEI’s real property had a total value of $3,121,700, with the debt amounting

to $602,095.53 and the equity amounting to $2,519,604.47.

¶12. The chancellor found that the major source of contention between the parties was

whether TEI and its accumulated assets and liabilities constituted marital assets. Although

Lisa contended TEI was a marital asset, Ellis testified that the corporation was a gift from

his father that failed to constitute a marital asset. Ellis therefore asserted that Lisa was not

entitled to any equitable distribution of TEI or its assets. The chancellor concluded that

Senior did, in fact, give the TEI stock to Ellis as a gift, that Lisa did not actively participate

in TEI or its business decisions, and that Lisa did not contribute to or invest in TEI’s

operations. In addition, the chancellor determined that TEI’s real property and equipment

were purchased solely with TEI’s funds and/or loans. As a result, the chancellor also found

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that TEI’s assets never constituted marital property. Further, the chancellor concluded that

TEI’s nonmarital assets were never converted into or commingled with marital assets.

¶13. After classifying the parties’ assets as either marital or nonmarital, the chancellor

considered the Ferguson1 factors and equitably divided the marital estate. The chancellor

found the total value of the marital estate to be $845,237.34. The chancellor awarded Lisa

assets totaling $478,497.78 (57% of the marital estate) and made her responsible for

$160,444.97 of the marital debt. This amounted to an equity award of $318,052.81. The

chancellor awarded Ellis assets totaling $366,739.56 (43% of the marital estate). The

chancellor next analyzed the Armstrong2 factors and denied Lisa’s request for alimony. The

chancellor also denied the parties’ requests for attorney’s fees and court costs. Aggrieved,

Lisa appeals the chancellor’s classification of TEI and its assets as nonmarital property and

her distribution of the marital estate based on this classification. Ellis cross-appeals and

asserts the chancellor erroneously denied both his motion to dismiss Lisa’s equitable-

distribution complaint and his motion to reconsider the denial.

DISCUSSION

I. Res Judicata

¶14. We first address Ellis’s argument on cross-appeal that he voluntarily submitted to

North Carolina’s jurisdiction during the divorce proceeding and that North Carolina’s

statutory law therefore required Lisa to either raise the issue of equitable distribution or else

1
Ferguson v. Ferguson, 639 So. 2d 921, 928 (Miss. 1994).
2
Armstrong v. Armstrong, 618 So. 2d 1278, 1280 (Miss. 1993).

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abandon the claim altogether. Because Lisa failed to assert the claim in the divorce action,

Ellis contends she is barred from raising the issue in a subsequent proceeding. Ellis therefore

argues the chancellor erred by not finding that res judicata barred Lisa’s Mississippi action

for equitable distribution. On the basis of this argument, Ellis asks this Court to reverse and

render the chancellor’s judgment. Alternatively, Ellis asks that we affirm the chancellor’s

determination as to equitable distribution. We review questions of law, such as issues of

jurisdiction, de novo. See Pierce v. Pierce, 132 So. 3d 553, 560 (¶12) (Miss. 2014).

¶15. With regard to the application of res judicata in divorce cases, this Court previously

explained:

The doctrine of res judicata reflects the refusal of the law to tolerate a
multiplicity of litigation. It is a doctrine of public policy designed to avoid the
expense and vexation attending multiple lawsuits, conserve judicial resources,
and foster reliance on judicial action by minimizing the possibilities of
inconsistent decisions. Res judicata bars all issues that might have been (or
could have been) raised and decided in the initial suit, plus all issues that were
actually decided in the first cause of action.

Article IV, § 1 of the United States Constitution requires that full faith
and credit be given to the judicial proceedings of sister states. However, those
proceedings are only entitled to full faith and credit where the rendering court
properly has subject matter and personal jurisdiction. The United States
Supreme Court has applied the Full Faith and Credit Clause in the context of
divorce actions.

Lofton v. Lofton, 924 So. 2d 596, 599 (¶¶14-15) (Miss. Ct. App. 2006) (citations and internal

quotation marks omitted). Our caselaw further recognizes “that a divorce action involving

multiple states is ‘divisible.’ That is, a divorce action involving one resident party and one

foreign party may or may not be able to adjudicate personal rights, though it can sever a

marriage as long as at least one party is a resident of that state.” Id. at 601 (¶27). In addition,

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“Mississippi law is clear that where the case in the foreign court is not decided on its merits,

while suit might be barred from any other court in the state where the judgment was

rendered[,] it is not res judicata in Mississippi.” Weiss v. Weiss, 579 So. 2d 539, 541 (Miss.

1991) (internal quotation mark omitted).

¶16. Here, Ellis contends the chancellor erroneously found that North Carolina did not

possess personal jurisdiction over him. We agree with Ellis that the record reflects he

voluntarily submitted to North Carolina’s personal jurisdiction when he entered a general

appearance in the divorce proceeding. Our analysis therefore focuses on Ellis’s arguments

that North Carolina statutory law required Lisa to raise equitable distribution in the divorce

proceeding there and that her failure to do so barred her from asserting the issue in a

subsequent action in Mississippi. Ellis relies on North Carolina General Statute Annotated

section 50-11(e) (2013), which provides:

An absolute divorce obtained within this State shall destroy the right of a
spouse to equitable distribution under [North Carolina General Statute
Annotated section] 50-20 unless the right is asserted prior to judgment of
absolute divorce; except, the defendant may bring an action or file a motion in
the cause for equitable distribution within six months from the date of the
judgment in such a case if service of process upon the defendant was by
publication pursuant to . . . [North Carolina General Statute Annotated section]
1A-1, Rule 4 and the defendant failed to appear in the action for divorce.

¶17. The North Carolina divorce judgment adjudicated three matters. The divorce decree

granted the parties an absolute divorce under North Carolina law, allowed Lisa to resume the

use of her maiden name, and allowed Lisa’s attorney to withdraw from the case. No dispute

exists that Lisa’s North Carolina divorce complaint never raised the issue of equitable

distribution and that the matter was therefore neither litigated in nor adjudicated by the North

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Carolina divorce proceeding. Lisa argues, however, that the North Carolina court lacked in

rem jurisdiction to dispose of the parties’ property located outside the state. For this reason,

Lisa asserts that she did not attempt to raise the issue in the divorce proceeding and that her

failure to do so poses no bar to her current Mississippi action. To support her argument, Lisa

cites North Carolina General Statute Annotated section 50-11(f), which states:

An absolute divorce by a court that lacked personal jurisdiction over the absent
spouse or lacked jurisdiction to dispose of the property shall not destroy the
right of a spouse to equitable distribution under [section] 50-20 if an action
or motion in the cause is filed within six months after the judgment of divorce
is entered.

(Emphasis added).

¶18. As the United States Supreme Court has previously recognized:

[W]hen claims to the property itself are the source of the underlying
controversy between the plaintiff and the defendant, it would be unusual for
the State where the property is located not to have jurisdiction. . . . The State’s
strong interests in assuring the marketability of property within its borders and
in providing a procedure for peaceful resolution of disputes about the
possession of that property would also support jurisdiction, as would the
likelihood that important records and witnesses will be found in the State.

Shaffer v. Heitner, 433 U.S. 186, 207-08 (1977) (footnotes omitted).

¶19. As we have already noted, Mississippi recognizes divisible divorce actions. Lofton,

924 So. 2d at 601 (¶27). Here, during the North Carolina divorce proceeding, neither party

ever raised the issue of equitable distribution of their marital property located in Mississippi.

Further, as reflected by its decree, the North Carolina court never addressed the issue.

Normally, under North Carolina statutory law, a party’s failure to raise equitable distribution

waives the issue in a future proceeding. N.C. Gen. Stat. Ann. § 50-11(e). But as the North

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Carolina Supreme Court has recognized, exceptions do exist. “Chapter 50 clearly

contemplates the survival of those rights [to equitable distribution and alimony] under certain

circumstances[,]” and section 50-11(f) provides an exception that “applies to cases wherein

the trial court lacks personal jurisdiction over the defendant or jurisdiction to dispose of the

property.” Stegall v. Stegall, 444 S.E.2d 177, 179, 180 (N.C. 1994).

¶20. We believe that such circumstances exist in the instant case. Because the North

Carolina court never exercised jurisdiction to dispose of the parties’ marital property, the

grant of divorce did not destroy Lisa’s right to equitable distribution under section 50-11(f)

because she filed such an action within six months of the entry of divorce. We therefore find

no error in the chancellor’s determination that res judicata failed to bar Lisa’s action in

Mississippi. Accordingly, we find that Ellis’s argument as to this assignment of error lacks

merit.

II. Equitable Distribution

¶21. With regard to the chancellor’s actual distribution of the marital estate, Lisa argues

the chancellor manifestly erred by classifying TEI and its assets as nonmarital property. The

chancellor determined that Ellis acquired the TEI stock as a gift from his father. Lisa

contends, however, that the stock fails to satisfy the requirements for a gift. She further

asserts the stock is marital property because Ellis acquired it during their marriage through

a corporate issuance of shares. In addition, even if this Court finds Senior gave the stock to

Ellis as a gift, Lisa claims that TEI and its assets later became marital property through

commingling and through Lisa’s contributions to the accumulation of marital assets.

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Arguing that the chancellor’s improper classification of the stock resulted in an inequitable

distribution of the marital estate, Lisa asks this Court to reverse the chancellor’s judgment

as to this issue and to remand for further proceedings.

¶22. “This Court employs a limited standard of review of property division and distribution

in divorce cases.” Parrish v. Parrish, 245 So. 3d 519, 522 (¶5) (Miss. Ct. App. 2017). When

supported by substantial evidence, we leave the chancellor’s opinion undisturbed unless the

chancellor abused her discretion, was manifestly wrong or clearly erroneous, or applied an

erroneous legal standard. Id. As previously discussed, we review questions of law de novo.

Id.

¶23. “In ordering an equitable distribution, chancellors are directed to (1) classify the

parties’ assets as marital or separate, (2) determine the value of those assets, and (3) divide

the marital estate equitably based upon the factors set forth in Ferguson[ v. Ferguson, 639

So. 2d 921, 928 (Miss. 1994)].” Weaver v. Weaver, 247 So. 3d 374, 376 (¶7) (Miss. Ct. App.

2018). “The law presumes that all property acquired or accumulated during marriage is

marital property.” Stroh v. Stroh, 221 So. 3d 399, 409 (¶27) (Miss. Ct. App. 2017) (citing

Hemsley v. Hemsley, 639 So. 2d 909, 914 (Miss. 1994)). A spouse claiming that certain

assets are separate, nonmarital property may rebut the presumption by proving that the

disputed “assets are attributable to . . . [his or her separate estate] prior to the marriage or

outside the marriage.” Id. For instance, “[p]roperty acquired in a spouse’s individual

capacity through an inter-vivos gift or inheritance is separate property, even if such property

is acquired during the marriage.” Rhodes v. Rhodes, 52 So. 3d 430, 441 (¶40) (Miss. Ct.

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App. 2011). To establish the receipt of a valid inter-vivos gift, a party must prove the

following by clear and convincing evidence: (1) “the donor was competent to make a gift”;

(2) “the donation was a voluntary act[,] and the donor had donative intent”; (3) “the gift must

be complete and not conditional”; (4) “delivery was made”; and (5) “the gift was

irrevocable.” West v. Johnson (In re Estate of Johnson), 237 So. 3d 698, 705 (¶16) (Miss.

2017).

¶24. In determining that Ellis acquired his TEI stock as a gift and classifying TEI and its

assets as nonmarital property, the chancellor relied on testimony not only from Ellis but also

from Lisa; the parties’ oldest son, Derek; Goode; and another tenant named Kenny Ellerbe.

The testimony from these witnesses touched on each element necessary for a valid inter-vivos

gift and supported a finding that each element was met. Substantial credible evidence

showed that Senior freely and voluntarily signed the deed that conveyed land to TEI; that

Senior intended the transfer of stock to Ellis and his brother, Mark, to be a gift; that Senior

was competent both at the time the initial stock transfer occurred and at the time he

surrendered his shares of stock back to TEI; that Ellis paid no compensation for any of the

TEI stock he received; and that the gift was complete and irrevocable after being made.

¶25. In addition, substantial credible evidence supported the chancellor’s findings that Lisa

did not actively participate in or contribute to TEI, its business decisions, or its business

operations; that TEI purchased its real property and equipment using funds and/or loans

obtained solely from TEI itself; and that TEI’s assets were nonmarital and were never

converted into or commingled with marital property. Ellis testified that no marital assets

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were used to purchase TEI’s real property and that none of his or Lisa’s income ever went

into TEI. Ellis further testified that TEI’s expenses were paid through income generated

from TEI’s hunting and farming leases. During her own testimony, Lisa confirmed that she

was never a stockholder in TEI and that she never held any responsibility for TEI’s loans or

debt. Multiple witnesses further stated that Lisa did take part in any of TEI’s business

operations and that she rarely even set foot on TEI’s property other than for certain social

events.

¶26. Upon review, we find that sufficient evidence supports the chancellor’s

determinations that Ellis received the TEI stock as a gift and that TEI and its assets remained

Ellis’s separate property. We therefore cannot say that the chancellor manifestly erred by

classifying TEI and its assets as nonmarital property. As a result, we also decline to find an

inequitable distribution of the marital estate based on the chancellor’s classification of TEI

and its assets as Ellis’s separate property.

CONCLUSION

¶27. We find no error in the chancellor’s determination that res judicata failed to bar Lisa’s

complaint for equitable distribution. Further, upon considering the chancellor’s equitable

distribution of the marital estate, we find no error in her classification of TEI and its assets

as nonmarital property. We therefore affirm the chancellor’s judgment.

¶28. ON DIRECT APPEAL: AFFIRMED. ON CROSS-APPEAL: AFFIRMED.

CARLTON, P.J., GREENLEE, WESTBROOKS, McDONALD, LAWRENCE
AND McCARTY, JJ., CONCUR. J. WILSON, P.J., DISSENTS WITH SEPARATE
WRITTEN OPINION, JOINED BY BARNES, C.J., AND C. WILSON, J.

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J. WILSON, P.J., DISSENTING:

¶29. I would hold that Ellis was entitled to a dismissal of Lisa’s complaint for equitable

distribution because the Full Faith and Credit Clause requires our State’s courts to give res

judicata effect to the North Carolina judgment granting an absolute divorce. Therefore, I

would reverse and render a judgment of dismissal on Ellis’s cross-appeal.

¶30. North Carolina General Statute section 50-11(e) provides:

An absolute divorce obtained within this State shall destroy the right of a
spouse to equitable distribution under [section] 50-20 unless the right is
asserted prior to judgment of absolute divorce; except, the defendant may
bring an action or file a motion in the cause for equitable distribution within
six months from the date of the judgment in such a case if service of process
upon the defendant was by publication . . . and the defendant failed to appear
in the action for divorce.

N.C. Gen. Stat. Ann. § 50-11(e) (2013).

¶31. In this case, Lisa obtained an absolute divorce in North Carolina. The exception that

follows the semicolon in section 50-11(e) does not apply because Ellis was served with a

copy of the summons and complaint, appeared in the action, and admitted all facts required

for an absolute divorce under North Carolina law. Therefore, because Lisa failed to assert

a claim to equitable distribution prior to the judgment of absolute divorce, the judgment

“destroy[ed]” her right to equitable distribution. Id.3

3
Lisa filed a prior complaint for divorce in Mississippi, which may have included a
claim for equitable distribution, although the complaint from the first Mississippi action does
not appear to be part of the record in this case. However, Lisa obtained a dismissal without
prejudice of the first Mississippi action before she obtained an absolute divorce in North
Carolina. Under North Carolina law, a claim for equitable distribution that is voluntarily
dismissed before entry of a judgment of absolute divorce does not preserve a claim for
equitable distribution. Rhue v. Pace, 598 S.E.2d 662, 667 (N.C. Ct. App. 2004) (citing
Stegall v. Stegall, 444 S.E.2d 177, 181 (N.C. 1994)).

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¶32. The Full Faith and Credit Clause, U.S. Const. Art. IV, § 1, as implemented by

Congress, 28 U.S.C. § 1738, requires the courts of each State to give full faith and credit to

an out-of-state divorce decree. See, e.g., Johnson v. Muelberger, 340 U.S. 581, 587 (1951).

In addition, “[f]ull faith and credit . . . generally requires every State to give to a judgment

at least the res judicata effect which the judgment would be accorded in the State which

rendered it.” Durfee v. Duke, 375 U.S. 106, 109 (1963). Therefore, we must give the North

Carolina judgment at least the res judicata effect that it would have in North Carolina. That

is, we are required to recognize that the North Carolina judgment “destroy[s]” Lisa’s right

to equitable distribution. N.C. Gen. Stat. Ann. § 50-11(e).

¶33. The majority argues that we are not required to give full res judicata effect to the

North Carolina judgment because a divorce decree is “divisible.” However, the cases that

the majority cites do not permit us to ignore the res judicata effect of a valid foreign

judgment. In Weiss v. Weiss, 579 So. 2d 539 (Miss. 1991), the Court held that a party could

pursue alimony in Mississippi after the entry of a Louisiana divorce decree because the

Louisiana decree clearly and specifically preserved her right to litigate her claim for alimony

at a later date. Id. at 540-41. In Pierce, supra, the Court held that a party could pursue

equitable distribution and alimony in Mississippi after the entry of a Washington divorce

decree because “the Washington court held that it lacked personal jurisdiction” over her and,

therefore, lacked jurisdiction to award alimony or divide the marital estate. Pierce, 132 So.

3d at 557-58, 561 (¶¶1, 3, 6, 19).4 Similarly, in Lofton v. Lofton, 924 So. 2d 596 (Miss. Ct.

4
This holding is consistent with on-point United States Supreme Court precedent.
See Estin v. Estin, 334 U.S. 541, 548-49 (1948).

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App. 2006), this Court held that a party could pursue alimony after the entry of a Florida

divorce decree because the Florida court lacked personal jurisdiction over her and, therefore,

lacked jurisdiction to award alimony. Id. at 602-04 (¶¶33-40).5

¶34. In this case, the North Carolina court clearly had personal jurisdiction over both Lisa

and Ellis, and the court’s judgment did not purport to preserve Lisa’s right to pursue

equitable distribution at a later date. Rather, the North Carolina court granted a standard

“absolute divorce” without any reservation, and we must give the judgment its ordinary res

judicata effect under North Carolina law. Durfee, 375 U.S. at 109. Therefore, the judgment

bars Lisa’s claim for equitable distribution. N.C. Gen. Stat. Ann. § 50-11(e).

¶35. The Constitution’s Full Faith and Credit Clause “altered the status of the States as

independent sovereigns. It ordered submission by one State even to hostile policies reflected

in the judgment of another State, because the practical operation of the federal system, which

the Constitution designed, demanded it.” Estin, 334 U.S. at 546 (citation omitted). We

cannot deny full faith and credit to a valid judgment entered in another State based solely on

our own state law on the nature or “divisibility” of a divorce decree. See id. at 545-46 (“The

Full Faith and Credit Clause is not to be applied, accordion-like, to accommodate our

personal predilections.”). In this case, the North Carolina court had jurisdiction over the

parties and entered a valid judgment, and the North Carolina judgment “destroy[s]” any

subsequent claim for equitable distribution. The Full Faith and Credit clause requires us to

5
In Lofton, the Mississippi court had entered an order requiring the husband to pay
separate maintenance prior to the entry of the Florida divorce decree, and the ex-wife had
petitioned the Mississippi court to convert the separate maintenance award into an alimony
award. See id. at 598 (¶¶4-8).

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give the North Carolina judgment that effect.

¶36. The majority also asserts that section 50-11(f) provides an exception to section 50-

11(e). Ante at ¶¶17, 19-21. However, section 50-11(f) applies only when the court that

granted the absolute divorce “lacked personal jurisdiction over the absent spouse or lacked

jurisdiction to dispose of the property.” N.C. Gen. Stat. § 50-11(f). In this case, Ellis was

served and filed an answer in the North Carolina action. He was not “absent,” and the North

Carolina court clearly had personal jurisdiction over both parties. Moreover, the majority

fails to explain why the North Carolina court would have lacked jurisdiction to dispose of

any marital property. North Carolina law specifically provides that “[r]eal or personal

property located outside of North Carolina is subject to equitable distribution . . . , and the

court may include in its order appropriate provisions to ensure compliance with the order of

equitable distribution.” N.C. Gen. Stat. § 50-21(a). Section 50-11(f) does not apply.

¶37. Citing section 50-11(e), the majority actually acknowledges that “[n]ormally, under

North Carolina statutory law, a party’s failure to raise equitable distribution waives the issue

in a future proceeding.” Ante at ¶19. However, the majority then argues that the normal rule

does not apply in this case because the parties failed to pursue equitable distribution in the

North Carolina proceeding. Ante at ¶¶20-21. If section 50-11(e) does not apply whenever

the parties fail to raise the issue of equitable distribution in the original divorce proceeding,

when does it ever apply? The majority’s reasoning renders the statute meaningless.

¶38. The majority ultimately confuses two different concepts. The fact that “the North

Carolina court never exercised jurisdiction to dispose of the marital property” (ante at ¶21)

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does not mean that the court “lacked jurisdiction” to do so under section 50-11(f). The North

Carolina court did not divide the marital property only because Lisa failed to assert a right

to equitable distribution prior to the entry of judgment. Her failure to assert that right is not

an exception to section 50-11(e). Rather, it is the reason that section 50-11(e) applies. Lisa’s

right to equitable distribution was “destroy[ed]” precisely because she failed to place the

issue before the North Carolina court. That is the whole point of the statute.

¶39. For the foregoing reasons, I would hold that the North Carolina judgment bars Lisa’s

claim for equitable distribution. Therefore, on Ellis’s cross-appeal, I would reverse and

render a judgment dismissing Lisa’s complaint. I respectfully dissent.

BARNES, C.J., AND C. WILSON, J., JOIN THIS OPINION.

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