Bland v. Bland
Decision Date | 03 April 1974 |
Docket Number | No. 7426DC139,7426DC139 |
Citation | 203 S.E.2d 639,21 N.C.App. 192 |
Parties | Dorothea C. BLAND v. Catherine M. BLAND, Executrix of Estate of Berry Jewel Bland. |
Court | North Carolina Court of Appeals |
Mullen, Holland & Harrell, P.A. by Graham C. Mullen, Gastonia, for plaintiff-appellee.
Anne M. Lamm and Basil L. Whitener, Gastonia, for defendant-appellant.
The first question presented is whether summary judgment is proper in this action. We hold that it is. The purpose of the summary judgment procedure provided by G.S. § 1A--1, Rule 56, is to ferret out those cases in which there is no genuine issue as to any material fact and in which, upon undisputed facts, a party is entitled to judgment as a matter of law. Savings & Loan Assoc. v. Trust Co., 282 N.C. 44, 191 S.E.2d 683 (1972); Haithcock v. Chimney Rock Co., 10 N.C.App. 696, 179 S.E.2d 865 (1971).
In this case, admissions in the pleadings, together with affidavits and other materials introduced at the hearing, are sufficient to establish the absence of any genuine issue as to any material fact and that only questions of law are presented.
The next question for our determination is whether the court erred in concluding as a matter of law that plaintiff's right to receive the $13.00 weekly support payments did not terminate with testate's death. We hold that the court erred in this conclusion.
The rights and obligations of the parties in this action are provided in the consent judgment entered on 19 January 1948. A consent judgment is the contract of the parties entered upon the records with the approval and sanction of a court of competent jurisdiction, and its provisions cannot be modified or set aside without consent of the parties except for fraud or mistake. Layton v. Layton, 263 N.C. 453, 139 S.E.2d 732 (1965). A consent judgment must be construed in the same manner as a contract to ascertain the intent of the parties. Webster v. Webster, 213 N.C. 135, 195 S.E.2d 362 (1938). It must be interpreted in the light of the controversy and the purposes intended to be accomplished by it. Spruill v. Nixon, 238 N.C. 523, 78 S.E.2d 323 (1953).
The consent judgment involved here obligated testate to pay plaintiff $13.00 per week 'until he is relieved therefrom by operation of law.' The question then arises as to when 'the law'--not a contract--relieves a husband from supporting his wife.
Interpreting the consent judgment in the light of the controversy in which it was entered and the purposes intended to be accomplished by it, we think the $13.00 weekly payments were, in effect, alimony. In Black's Law Dictionary, Fourth Edition, as a definition of 'alimony' we find: That being true, it would appear that the rule that would terminate a man's obligation to pay alimony ordered by the court would apply to testate's obligation to make support payments in this case.
As early as 1846, in Rogers v. Vines, 28 N.C. 293, 297, opinion by Chief Justice Ruffin, our Supreme Court said: Quoted with approval by Chief Justice Devin in Hester v. Hester, 239 N.C. 97, 100, 79 S.E.2d 248, 250 (1953).
In Crews v. Crews, 175 N.C. 168, 173, 95 S.E. 149, 152 (1918), the Supreme Court said: ...
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