Smith v. Smith
| Decision Date | 23 May 1945 |
| Docket Number | 523. |
| Parties | SMITH v. SMITH |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Mecklenburg County Jeff D. Johnson, Jr., Special Judge.
Civil action for enforcement of payments by defendant to plaintiff pursuant to terms of separation agreement.
The record discloses that on February 6, 1941, defendant and plaintiff who were husband and wife, having separated on November 1, 1940, entered into a written separation agreement,--executed in conformity with the provisions of G.S. § 52-12, formerly C.S. § 2515,--which provides, that "in consideration of the mutual covenants and agreement as are herein set forth, the said parties hereto agree as follows:
2. That they have "made an agreeable division of their household and kitchen furniture".
3. That upon signing and delivery of the agreement the husband paid to his wife the sum of $1,800 in cash, and agreed to pay to her "while she shall remain undivorced from the party of the first part, or be unmarried", the sum of $150 per month beginning March 10, 1941, but in no event to exceed in the aggregate the sum of $7,200.
4. That the husband relinquishes all right, title and interest in the property of his wife, including right of curtesy, and to administer upon or share in distribution of her estate.
5. That the wife relinquishes all right, title and interest in the property of her husband, including right of dower and to administer upon or share in distribution of his estate.
6. That each releases the other from any and all claims arising in tort or in contract "down to the signing of this agreement".
7. That the husband "shall become the owner of all real estate now held" by them "by the entireties", and that she will join in the execution of deeds or instruments necessary to vest title thereto in him, or such other party as he may direct.
8. That the agreement shall be binding and shall remain in full force and effect "even though a divorce be had between the parties hereto".
Plaintiff alleges in her complaint, summarily stated, that by the terms of the separation agreement she has (a) conveyed and quitclaimed to defendant all her right, title and interest and right of dower in both real and personal property of defendant, and right to administer upon his estate and to a distributive share of his personalty; (b) relinquished to defendant "her right for maintenance and support from the defendant"; and (c) released defendant of liability in tort and in contract, for all of which he agreed to pay a certain sum of money, and to pay $7,200 of it at the rate of $150 per month beginning March 10, 1941; that defendant made the payments as agreed to and including March 10, 1943, but that, soon after obtaining a divorce on ground of two years' separation and without any reason therefor defendant quit paying, since which time installments amounting to $2,250 have fallen due under the terms of the agreement, and remain unpaid, after demand, and payment refused.
Defendant in answer to the various allegations of the complaint admits entering into the separation agreement, copy of which is attached to complaint, and avers that it is in writing and "speaks for itself as to all the terms and conditions thereof, except as the same was subsequently modified as hereinafter set forth". Defendant avers in substance that the various other allegations of the complaint are denied except in so far as "they may be found by the court to allege the true terms of the separation agreement".
And defendant, for a first further answer and defense, avers:
1. That it was the intention, understanding and agreement of the parties that the payment which "he" obligated himself to make under the terms of the separation agreement were to be conditioned upon the faithful compliance by the plaintiff with all of the obligations assumed by her in said agreement, and specifically the paragraph of said agreement numbered one, wherein she promised and agreed not to molest or disturb or speak disparagingly of him.
2. That if the court should hold as a matter of law that said agreement as drawn fails to express the true intention and agreement of the parties as hereinabove averred, then defendant alleges that such omission was due to the mutual mistake of the parties and to an error of draftsmanship, and he prays the court that said instrument may be reformed and made to speak the true intention, understanding and agreement of the parties.
And defendant, for a second further answer and defense avers (1) that within a short time after the execution of the separation agreement, plaintiff moved and established a residence out of the State, and, in breach of her agreement not to molest defendant or speak disparagingly of him, immediately entered upon a campaign of slander, vilification and personal abuse of him, which was carried on and continued with wrongful, malicious and evil intent until about the month of December, 1941, when he notified her, as he had a right to do, that, by reason of her constant breach of the separation agreement, he would no longer be bound thereby, and would seek such other relief as the law might afford him; (2) that thereafter and as a result of negotiations between their respective counsel, "the parties agreed that the payments provided for in said separation agreement should be resumed and continued and that defendant should forego resort to any other legal remedy as he might have, but that plaintiff should not thereafter violate the terms of the said agreement" relating to molesting, etc., "and that in the event she should do so the defendant's obligation to forego resort to other remedies or to make further payments pursuant to the terms of said agreement should cease and terminate"; (3) that though defendant did resume payments under said agreement, and faithfully complied with all the terms and conditions thereof, plaintiff, in violation of her express promise and agreement, continued to harass, molest, disturb and slander defendant in manner set out in defendant's third further answer and defense and counterclaim.
And defendant for a third further answer and defense and by way of counterclaim avers: That "plaintiff wilfully, maliciously and with evil intent and purpose violated her express agreement that she would not molest, disturb or speak disparagingly of defendant" in manner specified in detail, particularly in May, and the summer of 1942, and "shortly after the remarriage of this defendant, in the month of March, 1943", by reason of which "he has been held up to the public as one who is guilty of a breach of trust and of some crime; and charged expressly or by inference with crimes which would subject him to infamous and disgraceful punishment and imprisonment and would exclude him from decent and honorable society; that he has been humiliated, embarrassed and constantly placed in fear of his own life and safety; that the peace and tranquility of his home have been disturbed and injured; that his feelings have been outraged and damaged; and that he has been caused to endure great mental torture and suffering all to his great damage in the sum of $10,000." Defendant thereupon prays that plaintiff take nothing by her action, and that he recover of her the sum of $10,000.
Plaintiff in reply to defendant's first and second answers and defenses denies each separate averment. Plaintiff moved to strike from defendant's answer all of the allegations contained in his third further answer and defense and counterclaim, together with prayer for relief for that same is bottomed in tort, whereas the plaintiff's cause of action is on contract, and therefore, the two causes of action as alleged in the complaint and in said further answers, defenses and counterclaim cannot be prosecuted in the same action, and the attempt to join same constitutes a misjoinder of causes of action.
When the case came on for hearing, motion to strike was treated as a demurrer for the purposes of hearing; and the plaintiff demurred ore tenus to the first and second further answers and defenses set up by defendant, and moved for judgment pro confesso upon the allegations of the complaint.
The court, being of opinion that each of the said motions and demurrers should be overruled, entered judgment accordingly. Plaintiff excepted to each ruling and appeals to the Supreme Court and assigns error.
Paul R. Ervin, G.T. Carswell, and Carrie L. McLean, all of Charlotte, for plaintiff-appellant.
T.A. Adams and Brock Barkley, both of Charlotte, for defendant-appellee.
The questions involved on this appeal relate to the action of the court below (1) in overruling plaintiff's demurrer to the further answers and defenses and counterclaim of defendant, and (2) in denying plaintiff's motion for judgment pro confesso on the pleadings. As to these, we are of opinion that the challenge of plaintiff is well founded.
The plaintiff may in all cases demur to answer containing new matter, where, upon its face, it does not constitute a defense or counterclaim. Such demurrer shall be heard and determined as provided for demurrers to the complaint. G.S. § 1-141.
"The office of a demurrer is to test the sufficiency of a pleading, admitting, for the purpose, the truth of the...
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