Brown v. Brown
Decision Date | 01 May 1974 |
Docket Number | No. 7415DC58,7415DC58 |
Citation | 21 N.C.App. 435,204 S.E.2d 534 |
Court | North Carolina Court of Appeals |
Parties | Lou Anna BROWN, v. Arthur W. BROWN. |
W. R. Dalton, Jr., Burlington, for plaintiff appellant.
Long, Ridge & Long by James E. Long, Graham, for defendant appellee.
The North Carolina Supreme Court laid down the rule to be followed in ruling on motions under Rule 12(b)(6) in Sutton v. Duke, 277 N.C. 94, 176 S.E.2d 161 (1970) where the Court stated:
'Under the 'notice theory of pleading' a statement of claim is adequate if it gives sufficient notice of the claim asserted 'to enable the adverse party to answer and prepare for trial, to allow for the application of the doctrine of Res judicata, and to show the type of case brought. . . .' Moore § 8.13. 'Mere vagueness or lack of detail is not ground for a motion to dismiss.' Such a deficiency 'should be attacked by a motion for a more definite statement.' Moore § 12.08 and cases cited therein.
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'(G)enerally speaking, the motion to dismiss under Rule 12(b)(6) may be successfully interposed to a complaint which states a defective claim or cause of action but not to one which was formerly labeled a 'defective statement of a good cause of action.' . . .'
In the case at bar the complaint reads:
'The plaintiff, complaining of the defendant, alleges:
1. That the plaintiff is a citizen and resident of Alamance County, North Carolina, and the defendant is a citizen and resident of Wake County, North Carolina.
2. That on the 21st day of December 1972 a Judgment was entered in the Court in El Paso County, Texas, having jurisdiction of the parties. That copy of said Judgment is attached hereto as Exhibit A and made a part hereof.
3. That among the provisions of said Judgment as a requirement that the defendant, by way of alimony to his wife, was required to sign over to the wife, the plaintiff herein, one-half of his retirement pay from the United States Army, which he would be entitled to if he retires on or before April 1, 1973. That the defendant retired from the United States Army prior to the 1st day of April, 1973.
That the defendant has failed and refused to cause the Army to pay one-half of the retirement benefits to the plaintiff as shown by plaintiff's Exhibit B, a copy of which is attached hereto and made a part hereof.
WHEREFORE the plaintiff, pursuant to the provisions of GS § 50--16.9(c) requests the Court to enter an Order either in words and figures as shown by the Texas judgment or by the same modified to such an extent as will permit the plaintiff to realize the benefits that the defendant is obligated to give her.
This 10th day of May, 1973.
DALTON & LONG
By: s/ W. R. Dalton, Jr.
(Verified by LOU ANNA BROWN this 10th day of May 1973)'
Plaintiff instituted this action under G.S. § 50--16.9(c) for modification of the Texas judgment apparently to provide for payment of one-half of the retirement pay by defendant to the plaintiff since the Army refused to make any payments to anyone other than the retired member. The defendant answered that no relief should be granted plaintiff under G.S. § 50--16.9(...
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