dissenting.
The majority concludes that a third party to an equitable distribution action has the right under North Carolina’s constitution to trial by jury on a claim seeking imposition of a constructive trust on property to which the third party holds legal title. I disagree with the majority’s conclusion and, therefore, respectfully dissent.
In arriving at its conclusion, the majority distinguishes the present set of facts from those in Upchurch v. Upchurch, 122 N.C. App. 172, 468 S.E.2d 61 (1996) (“Upchurch I") and Upchurch v. *130Upchurch, 128 N.C. App. 461, 495 S.E.2d 738 (“Upchurch II"), disc. review denied, 348 N.C. 291, 501 S.E.2d 925 (1998). The majority notes that, unlike here, “the [third party] in Upchurch I and Upchurch II did not request a jury trial on the issue of property to which they held title.” On the basis of this distinction, the majority has construed the Upchurch decisions to “hold that a judge in an equitable distribution action may impose a constructive trust on property titled to a third party so long as that third party . . . does not ask for a jury.” I must disagree with this construction, as it is too broad. Quite simply, this Court in Upchurch I and II was not confronted with the single issue of whether a third party to an equitable distribution action may request a jury trial on the question of whether a constructive trust should be imposed on property to which the party holds title. Thus, the Upchurch cases in no way bear on the issue currently presented. Rather, I believe that our Supreme Court’s decision in Kiser v. Kiser, 325 N.C. 502, 385 S.E.2d 487 (1989), conclusively resolves the question now before us.
In Kiser, the Court examined the issue of whether a constitutional right to trial by jury exists in an action for equitable distribution. Answering this question in the negative, the Court stated that under its long-held interpretation of article I, section 25 of our constitution, the right to a jury trial is “found only where the prerogative existed by statute or at common law at the time the Constitution of 1868 was adopted.” Id. at 507, 385 S.E.2d at 490. Having articulated the dispositive rule, the Court held as follows:
The right to bring an action for equitable distribution of marital property did not exist prior to 1868, but was newly created by the General Assembly in 1981 with the passage of 1981 N.C. Sess. Laws ch. 815. Prior to the passage of this act the distribution of assets upon divorce depended on the application of other rules of law. Hence, there is no constitutional right to trial by jury on questions of fact arising in a proceeding for equitable distribution of marital assets under our longstanding interpretation of article I, section 25 and its predecessors, but rather any right to jury trial would have to be created by the express language of the act itself. No such right is contained in the equitable distribution statutes. Rather, the only reference to jury trial rights in the statutes says merely, “[n]othing in G.S. 50-20 or this section shall restrict or extend the right to trial by jury as provided by the Constitution of North Carolina.” N.C.G.S. § 50-21(c) (1987).
Id. at 508-09, 385 S.E.2d at 490.
*131It is the majority’s position that, in the case before us, the claim for constructive trust is separate and distinct from the action for equitable distribution, such that the party who holds title to the alleged trust property is entitled to have a jury decide the issue of whether such a trust exists. Contrary to the majority, I agree with the trial court that “[t]he issue of constructive trust is not a cause of action which is to be severed from other actions, but rather is a request for equitable relief within the equitable distribution action itself.” As such, all issues pertaining to the constructive trust are “questions of fact arising in a proceeding for equitable distribution of marital assets,” and thus, “there is no constitutional right to trial by jury.” Id. at 508, 385 S.E.2d at 490.
As for defendants’ contention that the trial court erred in denying their motion to sever the constructive trust issue from the equitable distribution action, I discern no error, since the trial judge is vested with broad discretion in determining whether severance is appropriate. In re Dunn, 129 N.C. App. 321, 326, 500 S.E.2d 99, 102, disc. review denied and review dismissed, 348 N.C. 693, 511 S.E.2d 645 (1998).
For the foregoing reasons, I vote to affirm the order of the District Court of Wilson County.