Jenkins v. Jenkins

• Decision Date: 12 December 1945
• Docket Number: 669
• Citation: 36 S.E.2d 233,225 N.C. 681
• Parties: JENKINS v. JENKINS.
• Court: North Carolina Supreme Court

36 S.E.2d 233

225 N.C. 681

JENKINS v. JENKINS.

No. 669

Supreme Court of North Carolina

December 12, 1945

Plaintiff instituted this action to recover sums alleged to be due under a separation agreement between her and the defendant, her former husband.

Plaintiff alleged that while she and defendant were about to separate they entered into a contract wherein it was agreed that plaintiff should have the care and custody of the two children, and that defendant should pay her $60 per month and $10 per month for each child while with her; that after two years had elapsed defendant obtained an absolute divorce on the ground of two years' separation, and thereafter failed and refused to make any payments to her; that one of the children is now in the U. S. Army and defendant is making the required payments for the other. She prayed judgment for past-due monthly installments at $60 per month amounting to $540.

Defendant admitting the material allegations of the complaint, set up the plea of res judicata as a defense to the action, and based his plea on the following grounds: That in the divorce action this plaintiff (the defendant there) answered and set up the separation agreement now sued on and asked for judgment that she recover $70 per month according to the terms of the agreement. Upon the verdict in the divorce action on the three issues of (1) marriage, (2) two years' separation and (3) residence judgment was rendered by Judge Sink granting divorce, and awarding the custody of the children to the plaintiff herein. Finding that one of the children was in the U. S. Army and that the defendant herein was responsible for the maintenance of the other child until his twentieth birthday 'by reason of the deed of separation set forth in the further answer,' it was ordered that defendant herein pay $10 per month for maintenance of the second child.

On the hearing of the present action it was stipulated that jury trial be waived and that, as all the facts appeared in the pleadings and record in this case and in the divorce action the trial judge should therefrom decide the question of law now raised and determine the rights of the parties.

Under this stipulation, the court held that the facts thus presented were insufficient to support the plea of res judicata, and adjudged that plaintiff recover of defendant the amounts due under the contract. Defendant excepted and appealed.

Z H. Howerton, of Greensboro, for plaintiff.

Harry R. Stanley and E. Kermit Hightower, both of Greensboro, for defendant.

DEVIN Justice.

The only question presented by the appeal is the correctness of the ruling below that plaintiff was not estopped to maintain her action on the contract between herself and the defendant set out in the complaint. The question of the validity of the contract is not presented, and it seems to have been conceded by the defendant that under the decisions of this Court in Archbell v. Archbell, 158 N.C. 408, 74 S.E. 327 Ann.Cas.1913D, 261, and Lentz v. Lentz, 193 N.C. 742, 138 S.E. 12, the binding effect of the contract between the parties, if otherwise valid, is not affected by the subsequent divorce decree. The single assignment of error brought forward poses the question whether the...