MacMillan v. MacMillan
| Decision Date | 03 April 2012 |
| Docket Number | No. COA11–1158.,COA11–1158. |
| Citation | 723 S.E.2d 173 |
| Parties | Carol S. MacMILLAN, Plaintiff, v. Jerrold H. MacMILLAN, Defendant. |
| Court | North Carolina Court of Appeals |
OPINION TEXT STARTS HERE
Appeal by plaintiff from order entered 7 July 2011 by Judge Chester Davis in Forsyth County District Court. Heard in the Court of Appeals 8 February 2012.
William W. Walker of Craige, Brawley, Lipfert & Walker, LLP, attorney for plaintiff.
No brief filed by defendant.
Carol S. MacMillan (plaintiff) appeals from an order dismissing her motion in the cause for failure to state a claim upon which relief can be granted. After careful consideration, we reverse.
In 1955 plaintiff married Jerrold MacMillan, and in 1985 the couple divorced in Massachusetts. Around this time, plaintiff and Jerrold executed a separation agreement which provided in part that “[Jerrold] agrees that his last will and testament, or other instrument will provide Twenty–Thousand Dollars ($20,000.00) for [plaintiff] on the death of [Jerrold.]” In January 1985, Jerrold was living in Winston–Salem, so plaintiff sought to have the separation agreement registered in this state. On 25 March 1985, the Forsyth County District Court entered an order, registering the separation agreement. Then on 4 September 1985, the court entered a consent judgment, which addressed additional issues between plaintiff and Jerrold. That consent judgment modified the existing separation agreement such that “[Jerrold] will provide in his last will and testament, through insurance, or, if [Jerrold] dies intestate and without insurance, by hereby recognizing that plaintiff has a valid claim against defendant's estate for the payment of $18,000.00 to plaintiff upon [Jerrold's] death.”
Jerrold died in May 2010. He was survived by his wife, Mary MacMillan (defendant). Jerrold's will contained a specific bequest of $18,000.00 to plaintiff, pursuant to their agreement. However, at the time of his death Jerrold's estate had assets totaling only $7,500.00. Those assets were then distributed to defendant as part of her year's allowance as the surviving spouse, pursuant to this state's general statutes. Defendant also received more than $35,000 .00 from Jerrold's life insurance policies and IRA account.
On 1 February 2011, plaintiff filed a motion in the cause, requesting that the court impose a constructive trust for her benefit on the funds received by defendant as a result of Jerrold's death. Defendant then filed a motion to dismiss for, among other things, failure to state a claim upon which relief can be granted. On 7 July 2011, the trial court entered an order granting defendant's motion and dismissing plaintiff's suit for failure to state a claim upon which relief can be granted. Plaintiff now appeals.
Stanback v. Stanback, 297 N.C. 181, 185, 254 S.E.2d 611, 615 (1979) (citations omitted). “This Court must conduct a de novo review of the pleadings to determine their legal sufficiency and to determine whether the trial court's ruling on the motion to dismiss was correct.” Leary v. N.C. Forest Prods., Inc., 157 N.C.App. 396, 400, 580 S.E.2d 1, 4,aff'd per curiam,357 N.C. 567, 597 S .E.2d 673 (2003).
On appeal, plaintiff argues against each of the grounds asserted in defendant's motion to dismiss. However, the order at issue states that the motion to dismiss was granted on only one ground, failure to state a claim. Thus, we will only address plaintiff's argument with regards to whether the trial court erred in dismissing her suit for failure to state a claim. Upon review of plaintiff's pleading, we conclude that the trial court erred in...
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MacMillan v. MacMillan
...be granted. Carol gave notice of appeal to this Court from the trial court's July 2011 order.In MacMillan v. MacMillan(MacMillan I), ––– N.C.App. ––––, 723 S.E.2d 173 (2012) (unpublished), this Court considered whether the trial court erred by dismissing Carol's Motion in the Cause on the g......