Cox v. Cox ( 1985 )

330 S.E.2d 506 (1985)

Brenda Pruett COX
v.
James A. COX.

No. 8417DC942.

Court of Appeals of North Carolina.

June 18, 1985.

Everett & Everett by James A. Everett, Elkin, for plaintiff-appellant.

Morrow & Reavis by John F. Morrow and Clifton R. Long, Jr., Winston-Salem, for defendant-appellee.

JOHNSON, Judge.

The sole issue is whether the court erred in granting summary judgment for defendant. For the following reasons we hold the trial court did err in granting summary judgment.

Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to judgment as a matter of law." G.S. 1A-1, Rule 56(c). An issue of material fact is one which may constitute a legal defense or is of such a nature as to affect the result of the action or is so essential that the party against whom it is resolved may not prevail; an issue is genuine if it can be supported by substantial evidence. Zimmerman v. Hogg & Allen, 286 N.C. 24, 209 S.E.2d 795 (1974). A party moving for summary judgment has the burden of showing that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law. Caldwell v. Deese, 288 N.C. 375, 218 S.E.2d 379 (1975). If the moving party meets its burden, the burden then shifts to the opposing party to set forth specific facts, through affidavits or otherwise, showing that there is a genuine issue for trial. G.S. 1A-1, Rule 56(e). The opposing party need not convince the trial court that he would prevail on the issue but only that a genuine issue exists. Lowe v. Bradford, 305 N.C. 366, 289 S.E.2d 363 (1982). In ruling upon the motion, the court must closely scrutinize the movant's papers while indulgently treating the non-movant's papers. Zimmerman v. Hogg & Allen, supra.

In the present case, defendant, as the party moving for summary judgment, carried his burden of proof through his affidavit accompanied by the divorce judgment and the separation agreement signed by plaintiff. The burden then shifted to plaintiff to show a genuine issue of material fact for trial. She produced an affidavit in which she averred that she had been coerced and forced into signing the separation agreement by defendant; that defendant had threatened her physically on several occasions prior to their separation, causing her to leave the marital home, once late at night, to avoid physical injury to herself; that defendant had a violent temper and had exhibited this violent temper on several occasions; that defendant had threatened to physically harm her if she did not sign the separation agreement; that these threats were made on the date the separation agreement was executed and prior thereto; and that fearing for her life, knowing her husband's temper, she signed the separation agreement. If plaintiff executed the separation agreement under duress or fear induced by wrongful acts or threats, the separation agreement is invalid and not a bar to equitable distribution unless the separation agreement was ratified by plaintiff. See Link v. Link, 278 N.C. 181, 179 S.E.2d 697 (1971). Plaintiff's affidavit, therefore, raises triable issues of fact as to whether the separation agreement was signed by plaintiff under duress, and if so, whether it was ratified by plaintiff. Since plaintiff's affidavit raises a genuine issue of material fact as to the validity of the separation agreement asserted in bar of the action for equitable distribution, the court improvidently granted defendant's motion for summary judgment. The court's judgment must be vacated and the cause remanded for a resolution of the factual issue.

Vacated and remanded.

WHICHARD AND EAGLES, JJ., concur.