McKnight v. McKnight

212 S.E.2d 902 (1975) 25 N.C. App. 246

Hilda Gentry McKNIGHT
v.
Don B. McKNIGHT.

No. 7521DC13.

Court of Appeals of North Carolina.

April 2, 1975.

Hamilton C. Horton, Jr., Winston-Salem, for plaintiff appellee.

Hall, Scales & Cleland by Roy G. Hall, Jr., Winston-Salem, for defendant appellant.

HEDRICK, Judge.

Assignments of error 1, 2, 4, 6 and 10 raise the question of whether plaintiff's claim under the provisions of the separation agreement entered into on 17 January 1969 is barred by the judgment of absolute divorce entered on 19 January 1970.

G.S. § 50-11(a) in pertinent part provides: "After a judgment of divorce from the bonds of matrimony, all rights arising out of the marriage shall cease and determine. . .."

Defendant argues that since plaintiff's claim is based on a right arising out of the marriage it did not survive the judgment of absolute divorce because of the plain language of G.S. § 50-11(a). The fallacy in defendant's argument is that plaintiff's claim is based on a right arising out of contract which survives a judgment of absolute divorce, see Hamilton v. Hamilton, 242 N.C. 715, 89 S.E.2d 417 (1955); Stanley v. Stanley, 226 N.C. 129, 37 S.E.2d 118 (1946); Jenkins v. Jenkins, 225 N.C. 681, 36 S.E.2d 233 (1945); Williford v. Williford, 10 N.C.App. 451, 179 S.E.2d 114 (1971); Sebastian v. Kluttz, 6 N.C.App. 201; 170 S.E.2d 104 (1969); 2 Lee, North Carolina Family Law § 192, not a right arising out of the marriage which was terminated by the judgment of absolute divorce. These assignments of error are overruled.

By assignments of error 3, 8, and 9, defendant contends the trial court erred in allowing "evidence of defendant's alleged arrearages accruing after the action was filed and permitting plaintiff's eleventh-hour motion to amend the complaint.. . ."

G.S. § 1A-1, Rule 15, Rules of Civil Procedure, in pertinent part, provides:

"(b) Amendments to conform to the evidence.—When issues not raised by the pleadings are tried by the express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, either before or after judgment, but failure so to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues raised by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be served thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense upon the merits. * * *

"(d) Supplemental pleadings.—Upon motion of a party the court may, upon reasonable notice and upon such terms as are just, permit him to serve a supplemental pleading setting forth transactions or occurrences or events which may have happened since the date of the pleading sought to be supplemented, whether or not the original pleading is defective in its statement of a claim for relief or defense."

The distinction between supplemental pleadings and amendments is that supplemental pleadings relate to occurrences, transactions and events which may have happened since the date of the pleadings sought to be supplemented; whereas, amendments relate to occurrences, transactions and events that could have been, but for some reason were not, alleged in the pleadings sought to be amended. Williams v. Freight Lines, 10 N.C.App. 384, 179 S.E.2d 319 (1971). Therefore, although designated as an "amendment", plaintiff's allegations with respect to the failure of the defendant to make his support payments from January 1974 to the date of trial was in effect a supplementary pleading. See New Amsterdam Casualty Company v. Waller, 323 F.2d 20 (4th Cir. 1963); 3 Moore's Federal Practice § 15.16[1].

In any event, since both motions to amend and motions to file supplemental pleadings are granted in the discretion of the trial judge, Minnesota Min. & Mfg. Co. v. Superior Insulating Tape Co., 284 F.2d 478 (8th Cir. 1960); Galligan v. Smith, 14 N.C.App. 220, 188 S.E.2d 31 (1972); 3 Moore's Federal Practice § 15.16[3], we perceive no prejudice to the defendant in the court allowing the "motion to amend". Furthermore, since the amount of defendant's arrearage under the contract was an issue raised by the pleadings, since the amendment only served to bring the cause of action up to date, and since the amount of support the defendant was obligated to pay for the first eight months of 1974 was to be determined from defendant's income in 1973, it was not error for the trial judge either to permit the plaintiff to introduce evidence of defendant's arrearage between the date she filed this action, 8 January 1974, and the date of trial or to allow the plaintiff to "amend" her complaint to include the additional amount owed to her. These assignments of error are overruled.

Next, defendant contends the court erred in instructing the jury that an officer of the court had examined into the facts and certified that the separation agreement was fair to both parties. Under the pleadings and the evidence, the instruction challenged by this exception was, as characterized by the defendant, gratuitous. However, since the defendant admitted entering into the contract and neither the pleadings nor the evidence raised an issue as to whether the agreement was fair to either party, we do not perceive how the gratuitous and erroneous remarks of the judge could have prejudiced the defendant.

Finally, defendant contends the court erred in not instructing the jury as requested that any ambiguities in the separation agreement would be resolved against the party drafting it. The requested instruction is a rule of construction bottomed on the premise that there is an ambiguity in the contract. Windfield Corp. v. Inspection Co., 18 N.C.App. 168, 196 S.E.2d 607 (1973). Where the contract is plain and unambiguous, the construction of the agreement is a matter of law for the court. Yates v. Brown, 275 N.C. 634, 170 S.E.2d 477 (1969). The issues submitted to the jury obviously do not require any construction of the contract. The defendant did not request that additional issues be submitted to the jury or object to the issues submitted. It is clear from the issues submitted that the trial judge had already determined that the contract was plain and unambiguous and there would have been no reason for the judge to have given the requested instruction in any form. This assignment of error is overruled.

We find and hold that the trial in the district court was without prejudicial error.

No error.

PARKER and CLARK, JJ., concur.