Justice MEYER dissenting.

Justices MITCHELL and WHICHARD join in this dissenting opinion.

PARKER, Justice.

On 9 January 1989 plaintiff filed an action for absolute divorce which included claims for alimony and equitable distribution. During the pendency of plaintiff's action, on 2 February 1989 defendant filed an action for absolute divorce. On 13 March 1989 judgment of absolute divorce was granted in defendant's action. Thereafter, plaintiff on 8 October 1990 voluntarily dismissed her action pursuant to N.C.G.S. § 1A-1, Rule 41(a)(1) but filed a new action asserting her claims for alimony and equitable distribution on 18 February 1991 within the one-year period permitted under Rule 41(a)(1). Defendant moved under N.C.G.S. § 1A-1, Rule 12(b)(6) to dismiss the action, and the trial court granted the motion. Plaintiff appealed and the Court of Appeals affirmed the dismissal.

This Court granted plaintiff's petition for discretionary review. Stegall v. Stegall, 334 N.C. 439, 433 S.E.2d 170 (1993). The question presented for our review is whether plaintiff's claims for alimony and equitable distribution, asserted in her new action filed pursuant to Rule 41(a)(1), were barred by the judgment of absolute divorce. We agree with plaintiff's contention that the claims were not barred and reverse the decision of the Court of Appeals.

The pertinent provisions of N.C.G.S. § 50-11 provide:

(a) After a judgment of divorce from the bonds of matrimony, all rights arising out of the marriage shall cease and determine except as hereinafter set out, and either party may marry again without restriction arising from the dissolved marriage.

. . . .

(c) Except in case of divorce obtained with personal service on the defendant spouse, either within or without the State, upon the grounds of the adultery of the dependent spouse, a decree of absolute divorce shall not impair or destroy the right of a spouse to receive alimony and other rights provided for such spouse under any judgment or decree of a court rendered before or at the time of the rendering of the judgment [of] absolute divorce.

. . . .

(e) An absolute divorce obtained within this State shall destroy the right of a spouse to an equitable distribution of the marital property under G.S. 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 G.S. 1A-1, Rule 4 and the defendant failed to appear in the action for divorce.

N.C.G.S. § 50-11(a), (c), (e) (1987). In addition,

[n]otwithstanding the provisions of this section, any divorce obtained under G.S. 50-5.1 or G.S. 50-6 by a supporting spouse shall not affect the rights of a dependent spouse with respect to any action for alimony or alimony pendente lite that is pending at the time the judgment [of] divorce is granted.

N.C.G.S. § 50-19(c) (1987) (repealed effective Oct. 1, 1991).

The rules of civil procedure provide as follows:

If an action commenced within the time prescribed therefor, or any claim therein, is dismissed without prejudice under this subsection, a new action based on the same claim may be commenced within one year after such dismissal unless a stipulation filed under (ii) of this subsection shall specify a shorter time.

N.C.G.S. § 1A-1, Rule 41(a)(1) (1990).

Applying these principles, the Court of Appeals reasoned that the rights to equitable distribution and alimony are lost after divorce, Stegall v. Stegall, 110 N.C. App. 655, 656, 430 S.E.2d 460, 461 (1993); and we reaffirm this general rule. Nevertheless, the court also explicitly recognized that Chapter 50 clearly contemplates the survival of those rights under certain circumstances. Id. Reasoning further from Banner v. Banner, 86 N.C. App. 397, 358 S.E.2d 110 (1987), overruled on other grounds by Stachlowski v. Stach, 328 N.C. 276, 401 S.E.2d 638 (1991), the court said that N.C.G.S. § 50-11(a) "operates as an absolute bar to any claim for alimony which is not pending when judgment of divorce is entered, and Rule 41(a) has no effect on that bar." Id. at 657, 430 S.E.2d at 462. The court also concluded that a claim for equitable distribution not pending when judgment of divorce is entered is similarly barred. In concluding plaintiff's claims were properly dismissed, the court stated that "the claims which plaintiff pursues now are not the claims which were pending when judgment of divorce was entered. When plaintiff voluntarily dismissed the original claims, they terminated and no suit was pending thereafter." Id. We find, however, that the court erred in declining to apply Rule 41(a)(1) to preserve plaintiff's claims since neither Chapter 50 nor case law requires such a result.

Initially, we expressly disavow the language in the Court of Appeals' opinion indicating that the claims for alimony and equitable distribution in plaintiff's second action were not the same claims for alimony and equitable distribution alleged in plaintiff's original action as required by Rule 41(a)(1). Plaintiff filed a new civil action, but the claims therein, as best as can be determined from the record and briefs, were the same claims as in the first civil action.

Further, in Banner, Albert Banner filed an action for absolute divorce based on one year's separation from Pauline Banner. Mrs. Banner answered and counterclaimed for alimony but failed to set forth abandonment as the ground on which the counterclaim was based. At the pretrial conference the trial court denied Mrs. Banner's motion to amend her counterclaim; and her renewed motion at trial, which commenced on the same day, was also denied. Trial proceeded on the divorce action only. Before resting, Mrs. Banner took a voluntary dismissal pursuant to Rule 41(a)(1) of her counterclaim and also withdrew her answer. The court granted an absolute divorce, and judgment was entered on 25 April 1984. In the meantime, on 20 April 1984, Mrs. Banner filed an action seeking alimony and alimony pendente lite, citing the ground of abandonment. Mr. Banner's motion for summary judgment was granted. Banner, 86 N.C. App. at 398-99, 358 S.E.2d at 110-11.

On Mrs. Banner's appeal from summary judgment dismissing her action, the court reasoned that the action was barred "because the parties were already divorced." Id. at 401, 358 S.E.2d at 112. Mrs. Banner argued that under Rule 58, her action for alimony and alimony pendente lite was filed prior to entry of the divorce judgment. Therefore, her action was pending at the time the divorce judgment was entered and her alimony claim was still valid. However, the court found that although formal entry of judgment took place after Mrs. Banner's action was filed, she was "fully aware of the terms of" the divorce. Id. at 403, 358 S.E.2d at 113. Since "the judgment could not be formally entered until Mrs. Banner's counsel had reviewed it[,] Mrs. Banner should not now be allowed to file a new alimony claim, when she was responsible for the delay in" entry of the judgment. Id. Moreover, "[t]he divorce judgment here was granted in open court on 5 April 1984. At that time there was no action for alimony or alimony pendente lite pending. Therefore, any claim for alimony brought after that date was barred." Id. (emphasis added). Further, as to Mrs. Banner's contention that her Rule 41(a)(1) voluntary dismissal kept her action alive and pending for one year, the court said that termination of the alimony counterclaim by means of voluntary dismissal meant "there was no alimony action pending at the time the divorce judgment was granted." Id. at 404, 358 S.E.2d at 114 (emphasis added). The instant case is distinguishable from Banner in that when the parties' divorce judgment was entered, plaintiff's claim for alimony was pending.

Since plaintiff's claim for equitable distribution was also pending, the instant case is also distinguishable from Howell v. Howell, 321 N.C. 87, 361 S.E.2d 585 (1987), wherein defendant wife failed to respond to plaintiff husband's action for absolute divorce but filed an action for equitable distribution after judgment of absolute divorce was entered. Further, Carter v. Carter, 102 N.C. App. 440, 402 S.E.2d 469 (1991), is also distinguishable for similar reasons. In Carter, plaintiff husband filed an action for absolute divorce and equitable distribution; defendant wife did not respond; plaintiff took a voluntary dismissal of his equitable distribution claim; and judgment of absolute divorce was entered. Defendant moved to set aside the judgment, and the trial court reaffirmed the decree but attempted to reserve the equitable distribution claim. The court held that the trial court could not "nullify the consequences of defendant's failure to assert her claim for equitable distribution prior to the entry of judgment of divorce." Id. at 446, 402 S.E.2d at 472.

In Lutz v. Lutz, 101 N.C. App. 298, 399 S.E.2d 385, disc. rev. denied, 328 N.C. 732, 404 S.E.2d 871 (1991), plaintiff husband filed an action for absolute divorce and equitable distribution. Defendant wife did not file a timely answer, and the trial court granted plaintiff a judgment of absolute divorce, continuing the issue of equitable distribution. After the judgment was entered, defendant filed an answer to plaintiff's complaint and moved for unequal distribution of the marital property. Thereafter, plaintiff took a Rule 41(a)(1) dismissal of his equitable distribution claim. Id. at 300, 399 S.E.2d at 386-87. On appeal defendant contended the trial court erred in dismissing her claim for equitable distribution. However, citing N.C.G.S. § 50-11(e), the court said defendant's right to equitable distribution was destroyed by the judgment of absolute divorce. Further, her claim was not preserved by the exception in section 50-11(e) for such claims asserted prior to judgment of absolute divorce or by the exception in section 50-11(f), which applies to cases wherein the trial court lacks personal jurisdiction over the defendant or jurisdiction to dispose of the property. Id. at 301, 399 S.E.2d at 387. The court did not address whether, having taken a Rule 41(a)(1) dismissal after judgment of absolute divorce was entered, plaintiff could have refiled, within the one-year period provided by the rule, his equitable distribution claim asserted before entry of the judgment.

Before this Court, defendant contends that the provisions of Chapter 50 and Rule 41(a)(1) are in conflict; and, therefore, Chapter 50 should control and bar plaintiff's claims. We disagree with this contention. Chapter 50 clearly contemplates that if properly asserted before divorce the right to equitable distribution may survive a judgment of absolute divorce; and if a claim for alimony is pending at the time a divorce judgment is entered, the right to alimony may survive the judgment. Banner teaches that even properly asserted alimony rights may be lost by the taking of a voluntary dismissal before entry of judgment of absolute divorce. Lutz left open the question of whether an equitable distribution claim asserted before entry of judgment of absolute divorce could, after entry of judgment, be dismissed and refiled under Rule 41(a)(1). We now hold that if alimony and equitable distribution claims are properly asserted, whether by the filing of an action or raising of counterclaims, and are not voluntarily dismissed pursuant to Rule 41(a)(1) until after judgment of absolute divorce is entered, a new action based on those claims may be filed within the one-year period provided by the rule.

In the instant case, plaintiff properly asserted her claims for alimony and equitable distribution before entry of judgment of absolute divorce. Since she did not take a voluntary dismissal of her action before entry of judgment of divorce, the claims were pending when judgment of absolute divorce was entered and were not destroyed by the judgment. Therefore, we hold the Court of Appeals erred in affirming the trial court's dismissal of the action.

REVERSED.