Dillree v. Dillree

IN THE COURT OF APPEALS OF NORTH CAROLINA

2022-NCCOA-835

No. COA22-423

Filed 20 December 2022

Moore County, No. 21 CVD 108

VERONICA JANE DILLREE, by and through her General Guardian, EMILY
TOBIAS, Plaintiff,

v.

HARRY DILLREE, and his Attorney-In-Fact, LISA WILCOX, Defendants.

Appeal by Defendants-Appellants from orders entered 1 November 2021 by

Judge Warren McSweeney in Moore County District Court. Heard in the Court of

Appeals 15 November 2022.

Wilson, Reives, Silverman & Doran, PLLC, by Jonathan Silverman, for
Plaintiff-Appellee.

Wyrick Robbins Yates & Ponton LLP, by Charles W. Clanton, K. Edward
Greene, and Jessica B. Heffner, for Defendants-Appellants.

INMAN, Judge.

¶1 This appeal presents an issue not previously decided by this Court: whether a

general guardian has the power to cause a legal separation on behalf of an

incompetent spouse for the purpose of bringing an equitable distribution claim.

Construing our General Statutes and applying precedent from the divorce context,

we hold a guardian is not so authorized.
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I. FACTUAL & PROCEDURAL BACKGROUND

¶2 The record tends to show the following:

¶3 Defendant-Appellant Harry Dillree and Jane Dillree, originally college

sweethearts in the 1950s, eventually married in the 1980s, after both had children

from previous marriages. For decades, the Dillrees had a loving marriage: they

shared common interests, golfed and travelled together, and were affectionate toward

each other. The couple owned and lived in a home in Pinehurst, North Carolina, and

Mr. Dillree retired early so he could spend more time with his wife.

A. Ms. Dillrees’ Mental Decline and Guardianship Proceedings

¶4 In 2014, Ms. Dillree was diagnosed with Alzheimer’s disease. As her condition

deteriorated, Mr. Dillree stepped away from his hobbies to care for her. According to

Mr. Dillree’s adult daughter, Defendant-Appellant Laura Wilcox, the Dillrees’

relationship remained loving during this time and neither of them indicated they

wanted to leave the marriage. Ms. Wilcox never saw verbal or physical abuse or any

other indication the two were unhappy.

¶5 However, in January 2017, one of Ms. Dillree’s adult daughters, Susan Allen,

observed Mr. Dillree making disparaging comments to Ms. Dillree because of her

condition. On 19 January 2017, Ms. Dillree’s other adult daughter, Valerie Hunter,

filed with the Moore County Clerk of Superior Court a petition to declare Ms. Dillree

incompetent. The petition, accompanied by a letter from Ms. Dillree’s treating
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physician, alleged that Mr. Dillree was incapable of providing his wife with proper

care because he failed to administer her Alzheimer’s medication, fed her once a day

at most, and neglected to take her to medical appointments, in part because of his

own cognitive decline. It further alleged that Mr. Dillree was verbally and physically

abusive toward Ms. Dillree. The clerk appointed a guardian ad litem to investigate

the allegations in the petition and to represent Ms. Dillree’s interest in the

proceeding. The guardian ad litem visited the Dillrees’ home that afternoon, spoke

with both Mr. and Ms. Dillree, and filed an affidavit with the clerk reporting her

observations.

¶6 The next day, on the pretense of taking them out for lunch, Ms. Hunter drove

the Dillrees to the Moore County Courthouse to appear for a hearing on the motion.

The clerk adjudicated Ms. Dillree incompetent and appointed Plaintiff-Appellee

Emily Tobias as the interim guardian of Ms. Dillree’s person and estate. Ms. Tobias

took custody of Ms. Dillree immediately following the hearing.

¶7 Ms. Dillree was initially hospitalized and then transferred to a care facility to

ensure her well-being and to keep her physically separate from Mr. Dillree. Ms.

Tobias determined the separation was necessary, in part, because Ms. Dillree did not

have the capacity to consent to sex with her husband but expressed that she enjoyed

sexual activity with him. By the end of the month, Ms. Tobias had Ms. Dillree
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transferred to Penick Village, an assisted living facility with a memory care unit in

Pinehurst. The Dillrees have lived apart since then.

¶8 In March 2017, the trial court appointed Ms. Tobias as her general guardian.

The order found that Ms. Dillree’s “medical and mental condition requires more care,

attention, and safety control than her 80-year-old husband is capable of providing

without professional assistance,” that the Dillrees “have substantial financial assets,

but it is not in the best interests of [Ms. Dillree] to dissolve all of her assets for division

into a Guardianship account,” and that the general guardian shall approve visitation

schedules for Mr. Dillree with Ms. Dillree at Penick Village in accord with her “best

interests” and “wishes.” Ms. Dillree has not been restored to competency, and she has

remained at Penick Village.

B. Mr. Dillree’s Mental Decline

¶9 Mr. Dillree became distraught after his wife’s removal from their marital

home, and his mental condition deteriorated. Ms. Tobias allowed Mr. Dillree limited

visits with his wife for one to two hours at a time despite his requests to spend the

day with her. Mr. Dillree’s behavior made Penick Village staff and visitors

uncomfortable, and he threatened to harm staff if they did not let him see his wife.

He was then prohibited from the facility. In April 2018, after Mr. Dillree told his

neuropsychologist about a plan to kidnap his wife from Penick Village, he was
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involuntarily committed to a psychiatric facility and a petition was filed by Penick

Village staff to have him declared incompetent.

¶ 10 In exchange for dismissal of the involuntary commitment and incompetency

proceedings, Ms. Wilcox moved her father to a care facility in Libertyville, Illinois

where she lives. Mr. Dillree has since then been diagnosed with Alzheimer’s disease,

and Ms. Wilcox was appointed his guardian to represent his interests in this

litigation. Mr. Dillree, through counsel, requested that Ms. Dillree be moved to the

same facility or area so that they could be together or near each other. Ms. Tobias did

not respond. In January 2019, and again in November 2019, counsel for Mr. Dillree

filed motions to alter the guardianship and to have Ms. Dillree moved to Illinois. The

trial court denied each of those motions.

C. Disputes Regarding Mr. Dillree’s Financial Support of Ms. Dillree

¶ 11 The parties disagree about Mr. Dillree’s financial support of his wife and her

care since she was removed from their home.

¶ 12 In the four years between January 2017 and January 2021, Ms. Tobias had

received a total of $1,090,803 for Ms. Dillree’s benefit from various sources, including

approximately $7,000 per month in proceeds from a long-term care insurance policy.

¶ 13 Years before the Dillrees’ cognitive decline, they had planned their estates

together, with each being the beneficiary of the other’s separate will and trust. But

in July 2017, a few months after Ms. Dillree was deemed incompetent, Mr. Dillree
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amended the Declaration of the Harry D. Dillree Trust to remove Ms. Dillree as the

beneficiary and Ms. Allen, her daughter, as a co-trustee.

¶ 14 In August 2020, while preparing tax returns, Ms. Tobias learned of a Morgan

Stanley account jointly owned by Mr. and Ms. Dillree worth over four million dollars.

She asked Mr. Dillree’s attorney to evenly divide and distribute funds in the account.

One month later, the parties agreed via e-mail that Mr. Dillree would pay $15,000

per month for Ms. Dillree’s 24-hour care as well as guardian fees then accrued in the

amount of $77,000, and Ms. Tobias would not pursue distribution of funds from the

joint brokerage account.

¶ 15 In addition to the jointly titled Morgan Stanley account, Ms. Dillree and Mr.

Dillree each hold separate brokerage accounts in trust in values exceeding

$8,000,000. Because of Mr. and Ms. Dillree’s incapacity, their respective children are

now successor trustees of their trusts. Ms. Tobias contends the brokerage accounts

held by these trusts constitute marital and divisible property subject to equitable

distribution. Since entry of the orders appealed from, the trial court has allowed

joinder of the Harry D. Dillree Trust and the Veronica Jane Dillree Trust to this

action.

D. Equitable Distribution Proceeding

¶ 16 In January 2021, four years after Ms. Dillree was adjudicated incompetent and

removed from the marital home, Ms. Tobias filed a complaint on behalf of Ms. Dillree
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against Mr. Dillree and his attorney-in-fact and daughter, Ms. Wilcox (collectively

“Defendants-Appellants”), seeking, pursuant to N.C. Gen. Stat. §§ 50-20, 50-22

(2021), interim distribution of marital property, equitable distribution, and injunctive

relief. The trial court entered a temporary restraining order (“TRO”) to enjoin and

restrain Defendants-Appellants from engaging in any conduct that would cause the

disappearance, waste, or conversion of the Dillrees’ joint Morgan Stanley brokerage

account. One month later, the trial court entered orders continuing and modifying

the TRO to allow Defendants-Appellants to spend funds necessary to care for Mr.

Dillree.

¶ 17 In March 2021, Defendants-Appellants filed motions to dismiss the complaint

pursuant to North Carolina Rules of Civil Procedure 12(b)(1) and 12(b)(6), for lack of

subject matter jurisdiction, standing, and failure to state a claim upon which relief

can be granted. Ms. Tobias, Ms. Allen, Ms. Wilcox, a staff member at Penick Village,

and Nolan Hill, a close family friend, testified at the hearing on the motions. The trial

court took the matter under advisement, and in November 2021 denied both motions

to dismiss. Defendants-Appellants filed timely written notice of appeal.

II. ANALYSIS

A. Appellate Jurisdiction

¶ 18 “Interim equitable distribution orders are by nature preliminary to entry of a

final equitable distribution judgment and thus are interlocutory.” Hunter v. Hunter,
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126 N.C. App. 705, 707, 486 S.E.2d 244, 245 (1997) (citing Veazey v. Durham, 231

N.C. 357, 362, 57 S.E.2d 377, 381 (1950)). Pursuant to our General Statutes, however,

a party may appeal from an interlocutory order that affects a substantial right. N.C.

Gen. Stat. § 7A-27(b)(3)a. (2021). “A substantial right is a legal right affecting or

involving a matter of substance as distinguished from matters of form: a right

materially affecting those interests which a man is entitled to have preserved and

protected by law: a material right.” Estate of Redden v. Redden, 179 N.C. App. 113,

116, 632 S.E.2d 794, 797 (2006) (citation and quotation marks omitted). “[T]he right

itself must be substantial and the deprivation of that substantial right must

potentially work injury to [appellant] if not corrected before appeal from final

judgment.” Goldston v. Am. Motors Corp., 326 N.C. 723, 726, 392 S.E.2d 735, 736

(1990) (citation omitted). The appellant has the burden to establish that a substantial

right will be affected unless the appellant is allowed immediate appeal from an

interlocutory order. McConnell v. McConnell, 151 N.C. App. 622, 625, 566 S.E.2d 801,

804 (2002).

¶ 19 Defendants-Appellants acknowledge their appeal is interlocutory in nature,

but they allege the trial court’s restraining orders and injunction affect a substantial

right and work injury to them in several ways: (1) the orders deprive them of their

right to freely manage and use the property in the joint brokerage account; (2)

Plaintiff-Appellee’s other pending motions for joinder of both spouses’ trusts and
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interim distribution would require Defendants-Appellants to pay and deplete assets

in the fund; (3) the pending motion for attorney’s fees would require a not

insignificant payment; (4) payment of statutory guardian fees, up to five percent of

assets, would constitute burdensome litigation costs; (5) the orders create the

possibility of inconsistent verdicts; and (6) the orders interfere with Mr. Dillree’s

constitutional right to marry.

¶ 20 In the alternative, Defendants-Appellants request we exercise our discretion

under Rule 2 of the North Carolina Rules of Appellate Procedure to reach the merits

of this appeal. Rule 2 allows this Court to suspend its rules “[t]o prevent manifest

injustice to a party, or to expedite decision in the public interest[.]” N.C. R. App. P. 2

(2022). Plaintiff-Appellee does not object to this Court reaching the issues presented

in this interlocutory appeal to promote judicial economy and ensure an expeditious

resolution of this case. Plaintiff-Appellee also notes the trial court certified this

matter as affecting a substantial right pursuant to Section 7A-27(b)(3)a., but that

certification does not appear in the record on appeal.

¶ 21 Because, as explained below, Defendants-Appellants’ challenge to the trial

court’s subject matter jurisdiction is meritorious and our decision will result in final

resolution of this matter and is in the public interest, we invoke Rule 2 to hear this

appeal.

B. 12(b)(1) Motion to Dismiss for Lack of Subject Matter Jurisdiction
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¶ 22 Defendants-Appellants contend the trial court erred in denying their 12(b)(1)

motion to dismiss for lack of subject matter jurisdiction because Mr. and Ms. Dillree

never legally separated, and, if they did, Ms. Dillree’s guardian did not have the

authority to cause the separation. Our General Statutes and precedent support

reversing the trial court’s denial of Defendant’s motion to dismiss on this ground.

1. Standard of Review

¶ 23 The plaintiff bears the burden of demonstrating subject matter jurisdiction.

Harper v. City of Asheville, 160 N.C. App. 209, 217, 585 S.E.2d 240, 245 (2003). We

review a motion to dismiss under Rule 12(b)(1) for lack of subject matter jurisdiction

de novo. Morgan-McCoart v. Matchette, 244 N.C. App. 643, 645, 781 S.E.2d 809, 811

(2016). On de novo review of a 12(b)(1) motion for lack of subject matter jurisdiction,

this Court “considers the matter anew,” including matters outside the pleadings, “and

freely substitutes its own judgment for that of the trial court.” Bradford v. Bradford,

279 N.C. App. 109, 2021-NCCOA-447, ¶ 9 (2021) (citation omitted). Statutory

construction is also a question of law reviewed de novo on appeal. Id.

2. Equitable Distribution & Separation Law

¶ 24 A party may file an equitable distribution claim at any time after a husband

and wife begin living separate and apart from each other. N.C. Gen. Stat. § 50-21(a)

(2021). See also id. § 50-20(k) (“The rights of the parties to an equitable distribution

of marital property and divisible property are a species of common ownership, the
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rights of respective parties vesting at the time of the parties’ separation.”). A trial

court does not have subject matter jurisdiction over an equitable distribution claim

before the date of separation. See Standridge v. Standridge, 259 N.C. App. 834, 836-

38, 817 S.E.2d 463, 465-66 (2018) (vacating an order for equitable distribution

because both parties raised a claim for equitable distribution prior to the date of

separation).

¶ 25 The same test employed to determine the date of separation in divorce

proceedings applies in the equitable distribution context. Hall v. Hall, 88 N.C. App.

297, 299, 363 S.E.2d 189, 191 (1987). Separation “begins on the date the parties

physically separate with the requisite intention that the separation remain

permanent[.]” Bruce v. Bruce, 79 N.C. App. 579, 582, 339 S.E.2d 855, 858 (1986)

(emphasis added). Living separate and apart “implies the living apart for such a

period in such a manner that those in the neighborhood may see that the husband

and wife are not living together.” Dudley v. Dudley, 225 N.C. 83, 86, 33 S.E.2d 489,

491 (1945) (quotation marks and citations omitted). “When the parties objectively

have held themselves out as man and wife and the evidence is not conflicting, we need

not consider the subjective intent of the parties.” Schultz v. Schultz, 107 N.C. App.

366, 373, 420 S.E.2d 186, 190 (1992). However, if the evidence is conflicting, the trial

court must consider subjective intent. See id. at 372, 420 S.E.2d at 190; Byers v. Byers,

222 N.C. 298, 304, 22 S.E.2d 902, 906 (1942) (“There must be at least an intention on
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the part of one of the parties to cease cohabitation, and this must be shown to have

existed at the time alleged as the beginning of the separation period[.]”).

a. At best, there is conflicting evidence of a public showing that the Dillrees
were legally separated.

¶ 26 Defendants-Appellants contend Finding of Fact 35, that “there has been a

public showing of separation between the Dillrees” based on specified events

occurring after Ms. Dillree was adjudicated incompetent, is unsupported by the

evidence and amounts to legal error. Although Ms. Tobias had custody of Ms. Dillree’s

person as her guardian as of 20 January 2017 and ultimately removed Ms. Dillree

from the marital home, Defendants-Appellants argue this physical separation did not

establish a legal separation for the purposes of equitable distribution.

¶ 27 Though neither party addressed the nature of Finding 35 in their appellate

briefs, at oral argument, counsel for Defendants-Appellants contended the

determination that the parties held themselves out as separated is a conclusion of

law, based on a summary of findings in the trial court’s order. To the extent the trial

court applied legal principles to the facts, its determination is a mixed question of law

and fact, fully reviewable on appeal. Hinton v. Hinton, 250 N.C. App. 340, 347, 792

S.E.2d 202, 206 (2016).

¶ 28 Our Court has concluded that living under different roofs and ceasing sexual

relations do not, absent other evidence, constitute a separation. Lin v. Lin, 108 N.C.
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App. 772, 775-76, 425 S.E.2d 9, 10-11 (1993). Further, there is no separation “when

the association between [spouses] has been of such character as to induce others who

observe them to regard them as living together in the ordinary acceptation of that

descriptive phrase.” In re Estate of Adamee, 291 N.C. 386, 392, 230 S.E.2d 541, 546

(1976).

¶ 29 The trial court’s order appointing Ms. Tobias as general guardian provided

visitation for Mr. Dillree with Ms. Dillree at Penick Village in accordance with her

“best interests” and “wishes.” Ms. Tobias testified that she physically separated the

Dillrees because Mr. Dillree could no longer provide proper care for Ms. Dillree and

Ms. Dillree was unable to consent to sex as an incompetent person. No evidence in

the record reflects that, prior to commencing this action, Ms. Tobias indicated the

Dillrees were legally separated. Nolan Hill, a close friend of the couple, testified that

Mr. Dillree became upset and sad when he could not visit his wife, and Mr. Hill did

not understand the Dillrees to be legally separated.

¶ 30 Plaintiff-Appellee cites several other of the trial court’s findings to support the

conclusion that there has been a public showing of the Dillrees’ separation. She

enumerates the following examples listed in Finding 35: (1) Mr. Dillree changed his

estate plans; (2) counsel negotiated Ms. Dillree’s financial support; and (3) the

“proceedings between Mr. Dillree and those acting on Ms. Dillree’s behalf” were

adversarial in nature. It is not apparent from the record that any member of the
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public, including those in the Dillrees’ community, knew this information, much less

that either Mr. or Ms. Dillree brought it to anyone else’s attention. Plaintiff-Appellee

has cited no legal authority to support the trial court’s determination based on the

evidence of record.

¶ 31 Because, at best, there is conflicting evidence about whether the Dillrees

objectively held themselves out as legally separated while they were physically

separated as a result of their guardianships and medical conditions, we must consider

the subjective intent of the parties. See Schultz, 107 N.C. App. at 372, 420 S.E.2d at

190.

b. A guardian may not substitute subjective intent for an incompetent spouse
and cause a separation for purposes of equitable distribution.

¶ 32 Defendants-Appellants argue: (1) there is no evidence Ms. Dillree formed the

subjective intent to permanently separate from Mr. Dillree before she was

adjudicated incompetent; and (2) Ms. Tobias, as Ms. Dillree’s guardian, does not have

the statutory authority to cause a marital separation for the purposes of equitable

distribution on behalf of Ms. Dillree. Construing our General Statutes together and

applying our precedent, we agree.

¶ 33 Ms. Tobias testified that she physically separated the Dillrees because Mr.

Dillree could no longer provide proper care for Ms. Dillree and because she could not

consent to sexual activity: “[Mr. Dillree]’s behavior was such that we needed to keep
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her safe. . . Issues developed from the interim hearing where she was unable to give

consent and she didn’t recognize him, and so we had to keep him physically separate

from her as far as a marital sexual nature.” Staff from Penick Village echoed Ms.

Tobias’ concern. Ms. Tobias further testified Ms. Dillree had “no capacity to

participate in a decision” about her placement. In March 2017, two months after Ms.

Dillree was removed from the marital home, the trial court found that her “current

medical and mental condition requires more care, attention, and safety control than

her 80-year-old husband is capable of providing without professional assistance.” The

guardian ad litem report detailed Ms. Dillree’s cognitive difficulties. Because Ms.

Dillree was deemed incompetent, she could not form the requisite subjective intent

to separate from Mr. Dillree for purposes of equitable distribution. See Moody v.

Moody, 253 N.C. 752, 757, 117 S.E.2d 724, 727 (1961) (holding a husband was not

capable of forming the requisite intent to separate for a divorce based on mutual

consent because he was “not then rational” after a serious brain injury); Hall, 88 N.C.

App. at 299, 363 S.E.2d at 191.

¶ 34 It is well settled that general guardians are prohibited from maintaining an

action for divorce on behalf of an incompetent person based on a year-long separation.

Freeman v. Freeman, 34 N.C. App. 301, 304, 237 S.E.2d 857, 859 (1977) (“The

majority rule that a suit for divorce is so personal and volitional that it cannot be

maintained by a guardian on behalf of an incompetent is sound.”). Chapter 50 of our
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General Statutes has incorporated this general prohibition: “a guardian appointed in

accordance with Chapter 35A of the General Statutes . . . may commence, defend,

maintain, arbitrate, mediate, or settle any action authorized by this Chapter on

behalf of an incompetent spouse. However, only a competent spouse may commence

an action for absolute divorce.” N.C. Gen. Stat. § 50-22 (2021). Subsection 50-21(a) of

Chapter 50 sets forth the general procedures for equitable distribution: “At any time

after a husband and wife begin to live separate and apart from each other, a claim

for equitable distribution may be filed and adjudicated[.]” However, neither this

statute nor any other expressly grants a guardian the power to cause a separation for

the purposes of equitable distribution or divorce.

¶ 35 Chapter 35A of our General Statutes provides for incompetency and

guardianship. A general guardian is “[a] guardian of both the estate and the person.”

N.C. Gen. Stat. § 35A-1202(7) (2021). A guardian of the person is “appointed solely

for the purpose of performing duties relating to the care, custody, and control of a

ward.” Id. § 35A-1202(10). Section 35A-1241 confers the guardian of the person the

power to take custody of the person of the ward and to establish the place of abode of

the ward. § 35A-1241(a)(1)-(2). A guardian of the estate, by contrast, is “appointed

solely for the purpose of managing the property, estate, and business affairs of a

ward.” § 35A-1202(9). A general guardian or guardian of the estate has the “power to

perform in a reasonable and prudent manner every act that a reasonable and prudent
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person would perform incident to the collection, preservation, management, and use

of the ward’s estate to accomplish the desired result of administering the ward’s

estate legally and in the ward’s best interest,” to include: taking possession of the

ward’s estate; maintaining any appropriate action to recover possession of the ward’s

property; completing performance of contracts; and continuing any business venture

entered into by the ward. § 35A-1251(1),(3),(4),(15).

¶ 36 Interpreting Chapters 50 and 35A to discern a guardian’s authority relative to

domestic relations law, we are guided by several canons of statutory construction.

First, and perhaps most instructive, “[w]hen multiple statutes address a single

matter or subject, they must be construed together, in pari materia, to determine the

legislature’s intent. Statutes in pari materia must be harmonized, to give effect, if

possible, to all provisions without destroying the meaning of the statutes involved.”

DTH Media Corp. v. Folt, 374 N.C. 292, 300, 841 S.E.2d 251, 257 (2020) (citations

and quotation marks omitted). While separate chapters of our General Statutes,

Sections 50-22 and 35A-1241, 35A-1251 address the same subject matter––the

authority of a guardian to act on behalf of an incompetent person––and Section 50-

22 explicitly cross-references Chapter 35A. Interpreting Section 50-22 to prohibit a

guardian from causing a separation for purposes of equitable distribution does not

otherwise limit the guardian’s powers under Sections 35A-1241 and 35A-1251 to

maintain an action to recover possession of the ward’s property. The Legislature did
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not provide a mechanism in Chapter 50 for a guardian to seek the incompetent

person’s assets.

¶ 37 Second, our Legislature is presumed to have full knowledge of prior and

existing law. Polaroid Corp. v. Offerman, 349 N.C. 290, 303, 507 S.E.2d 284, 294

(1998) abrogated on other grounds by Lenox, Inc. v. Tolson, 353 N.C. 659, 548 S.E.2d

513 (2001). Relevant here, at the time it enacted Section 50-22 and the prohibition of

a guardian filing for absolute divorce on behalf of an incompetent person, in

particular, we presume the General Assembly was aware of our precedents that: (1)

an incompetent spouse is not capable of forming the requisite intent to separate for a

divorce, Moody, 253 N.C. at 757, 117 S.E.2d at 727; (2) the separation requirement

for divorce is the same for purposes of equitable distribution, Hall, 88 N.C. App. at

299, 363 S.E.2d at 191; (3) separation begins at the time of physical separation where

one party has formed the intent for the separation to be permanent, Bruce, 79 N.C.

App. at 582, 339 S.E.2d at 858; and (4) the trial court does not have subject matter

jurisdiction over a claim for equitable distribution if it is filed prior to the date of

separation, Standridge, 259 N.C. App. at 836, 817 S.E.2d at 465.

¶ 38 Next, “words must be given their common and ordinary meaning, nothing else

appearing.” In re Clayton-Marcus Co., 286 N.C. 215, 219, 210 S.E.2d 199, 202-03

(1974) (citation omitted). Subsection 35A-1251(3) authorizes a guardian “to maintain

any appropriate action or proceeding to recover possession of any of the ward’s
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property, to determine the title thereto, or to recover damages for any injury done to

any of the ward’s property[.]” (Emphasis added). Chapter 35A does not define the

term “maintain” in its definitions section. See § 35A-1202 (providing definitions for

the Subchapter). Merriam-Webster’s Dictionary defines “maintain” as “to keep in an

existing state,” “to preserve,” or “to continue.” We interpret “maintain” in the context

of Subsection 35A-1251(3), alongside Section 50-22, to authorize a guardian to

continue an action for equitable distribution only when the claim already exists at

the time the guardianship is formed, not after. In other words, pursuant to Section

50-22, a guardian would be authorized to bring an action for equitable distribution

on behalf of an incompetent person who had been legally separated prior to

incompetency. And a general guardian would be authorized to bring suit for equitable

distribution where the other, presumably competent, spouse caused the physical

separation with the requisite intent, because subject matter jurisdiction existed prior

to the guardianship, so long as the guardian does not allege intent on behalf of the

incompetent spouse.

¶ 39 A fourth canon of statutory construction helps us determine whether Chapter

35A or 50 ultimately governs the issue before us. “When two statutes deal with the

same subject matter the statute which is addressed to a specific aspect of the subject

matter takes precedence over the statute which is general in application unless the

General Assembly intended to make the general statute controlling.” In re Greene,
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297 N.C. 305, 310, 255 S.E.2d 142, 146 (1979). Because Section 50-22 applies

specifically to divorce and alimony “action[s] on behalf of an incompetent,” it “takes

precedence over” the general powers granted to guardians under Sections 35A-1251

and 35A-1241. See id.

¶ 40 The legislative history of Chapter 50 further bolsters our reading of the

statutes that a general guardian lacks the authority to cause marital separation on

behalf of an incompetent spouse. Section 50-22 was amended in 2009 to: (1) expand

the persons authorized to maintain an action authorized by Chapter 50 to attorneys-

in-fact, any guardian appointed under Chapter 35A, and guardians ad litem; and (2)

remove a provision that the trial court may order equitable distribution on behalf of

an incompetent spouse without entering a decree of divorce after the parties have

been separated for one year. 2009 N.C. Sess. Laws 366, ch. 224, § 1.

¶ 41 Our interpretation is also consistent with precedent holding that a guardian

may not substitute his or her intent for that of an incompetent person as to the

disposition of property. See, e.g., Grant v. Banks, 270 N.C. 473, 485, 155 S.E.2d 87,

95-96 (1967) (holding a guardian or trustee is without power to rewrite or alter

provisions of the will of his ward, such as by commingling funds, so as to destroy the

testamentary intent of the testator); Tighe v. Michal, 41 N.C. App. 15, 22, 254 S.E.2d

538, 544 (1979) (holding a person ceases to be able to form testamentary intent when

a person becomes mentally incompetent).
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¶ 42 Plaintiff-Appellee contends that the Legislature could have limited a

guardian’s ability to pursue equitable distribution or divorce from bed and board

pursuant to N.C. Gen. Stat. § 50-7 (2021) on behalf of an incompetent spouse in the

same manner it did for absolute divorce pursuant to Section 50-22, had it so intended.

But Section 50-7 does not require the intent necessary for absolute divorce and

equitable distribution. As a policy matter, she argues adopting Defendants-

Appellants’ interpretation of the statutes would “render a [g]eneral [g]uardian’s right

to maintain an equitable distribution action meaningless to protect her ward’s estate

[under Chapter 35A] if the guardian could not determine whether her ward was

separated.” Plaintiff-Appellee relies on an unpublished decision from this Court, In

re: Estate of Lisk, 250 N.C. App. 507, 793 S.E.2d 286 (2016) (unpublished), in which

the trial court determined a guardian of the person had legal authority to, and did,

cause a marital separation on behalf of an incompetent spouse, to further justify Ms.

Tobias’ action in this case. But the guardian’s authority to cause the separation was

not challenged on appeal. Lisk is neither binding nor persuasive.

¶ 43 As with divorce, the decision to legally separate from one’s spouse for equitable

distribution, is deeply “personal and volitional,” Freeman, 34 N.C. App. at 304, 237

S.E.2d at 859. Based on the plain language of the divorce and guardian provisions

and considering the legislative history of Section 50-22, we hold a general guardian

lacks the authority to cause a legal separation on behalf of an incompetent spouse for
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purposes of equitable distribution. Because the guardian could not create a marital

separation, Mr. and Ms. Dillree were not legally separated, so the trial court was

without subject matter jurisdiction to hear the equitable distribution claim. See

Standridge, 259 N.C. App. at 836, 817 S.E.2d at 465 (“Where a claim for equitable

distribution is filed prior to the date of separation, the trial court does not have

subject matter jurisdiction over the claim.”) (citing Atkinson v. Atkinson, 132 N.C.

App. 82, 90, 510 S.E.2d 178, 182 (1999) (J. Greene, dissenting)); N.C. Gen. Stat. § 1A-

1, Rule 12(h)(3) (2021) (“Whenever it appears by suggestion of the parties or

otherwise that the court lacks jurisdiction of the subject matter, the court shall

dismiss the action.”); § 50-21(a); § 50-20(k). Thus, we reverse the trial court’s denial

of Defendants-Appellants’ motion to dismiss for lack of subject matter jurisdiction

and remand for the trial court to dismiss Plaintiff-Appellee’s complaint with

prejudice.

¶ 44 Our decision shall not be construed to limit, in any way, a guardian’s statutory

authority to physically separate an incompetent person from their spouse where it is

in the incompetent person’s best interest. See § 35A-1241(a)(1)-(2). And, our decision

notwithstanding, general guardians are not altogether foreclosed from accessing

marital assets on behalf of an incompetent spouse. For example, a guardian may

petition the trial court for a constructive trust. See generally Bowen v. Darden, 241

N.C. 11, 13-14, 84 S.E.2d 289, 292 (1954) (“[A] constructive trust ordinarily arises out
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of the existence of fraud, actual or presumptive—usually involving the violation of a

confidential or fiduciary relation—in view of which equity transfers the beneficial

title to some person other than the holder of the legal title.”). A guardian may also

seek a charging order for the distribution of payments for the incompetent person’s

health care. See, e.g., McVicker v. McVicker, 234 N.C. App. 478, 762 S.E.2d 533 (2014)

(unpublished) (concluding “a charging order was one, but not the sole, remedy

available to plaintiff to enforce the distributive award”). Finally, in the event of

spousal abuse, a guardian unequivocally has the authority to take custody of the

incompetent person, as Ms. Tobias has done in this case. See § 35A-1241(a)(1)-(2).

III. CONCLUSION

¶ 45 Based on the foregoing reasons, we reverse the trial court’s orders denying

Defendants-Appellants’ motions to dismiss because the trial court was without

subject matter jurisdiction.

REVERSED.

Judges ARROWOOD and CARPENTER concur.