Bland v. Bland

203 S.E.2d 639 (1974) 21 N.C. App. 192

Dorothea C. BLAND
v.
Catherine M. BLAND, Executrix of Estate of Berry Jewel Bland.

No. 7426DC139.

Court of Appeals of North Carolina.

April 3, 1974.

Mullen, Holland & Harrell, P. A. by Graham C. Mullen, Gastonia, for plaintiff-appellee.

Anne M. Lamm and Basil L. Whitener, Gastonia, for defendant-appellant.

BRITT, Judge.

The first question presented is whether summary judgment is proper in this action. We hold that it is. The purpose of the summary judgment procedure provided by G.S. § 1A-1, Rule 56, is to ferret out those cases in which there is no genuine issue as to any material fact and in which, upon undisputed facts, a party is entitled to judgment as a matter of law. Savings & Loan Assoc. v. Trust Co., 282 N.C. 44, 191 S.E.2d 683 (1972); Haithcock v. Chimney Rock Co., 10 N.C.App. 696, 179 S.E.2d 865 (1971).

In this case, admissions in the pleadings, together with affidavits and other materials introduced at the hearing, are sufficient to establish the absence of any genuine issue as to any material fact and that only questions of law are presented.

The next question for our determination is whether the court erred in concluding as a matter of law that plaintiff's right to receive the $13.00 weekly support payments did not terminate with testate's death. We hold that the court erred in this conclusion.

The rights and obligations of the parties in this action are provided in the consent judgment entered on 19 January 1948. A consent judgment is the contract of the parties entered upon the records with the approval and sanction of a court of competent jurisdiction, and its provisions cannot be modified or set aside without consent of the parties except for fraud or mistake. Layton v. Layton, 263 N.C. 453, 139 S.E.2d 732 (1965). A consent judgment must be construed in the same manner as a contract to ascertain the intent of the parties. Webster v. Webster, 213 N.C. 135, 195 S.E. 362 (1938). It must be interpreted in the light of the controversy and the purposes intended to be accomplished by it. Spruill v. Nixon, 238 N.C. 523, 78 S.E.2d 323 (1953).

The consent judgment involved here obligated testate to pay plaintiff $13.00 per week "until he is relieved therefrom by operation of law." The question then arises as to when "the law"—not a contract—relieves a husband from supporting his wife.

Interpreting the consent judgment in the light of the controversy in which it was entered and the purposes intended to be accomplished by it, we think the $13.00 weekly payments were, in effect, alimony. In Black's Law Dictionary, Fourth Edition, as a definition of "alimony" we find: "Comes from Latin ``alimonia' meaning sustenance, and means, therefore, the sustenance or support of the wife by her divorced husband and stems from the common-law right of the wife to support by her husband. Eaton v. Davis, 176 Va. 330, 10 S. E.2d 893, 897." That being true, it would appear that the rule that would terminate a man's obligation to pay alimony ordered by the court would apply to testate's obligation to make support payments in this case.

As early as 1846, in Rogers v. Vines, 28 N.C. 293, 297, opinion by Chief Justice Ruffin, our Supreme Court said: ". . . Now, ``alimony' in its legal sense may be defined to be that proportion of the husband's estate which is judicially allowed and allotted to a wife for her subsistence and livelihood during the period of [their] separation. Poynter Marriage and Divorce, 246; Shelford on Mar. and Div. 586. In its nature, then, it is a provision for a wife separated from her husband, and it cannot continue after reconciliation or the death of either party . . . ." Quoted with approval by Chief Justice Devin in Hester v. Hester, 239 N.C. 97, 100, 79 S.E.2d 248, 250 (1953).

In Crews v. Crews, 175 N.C. 168, 173, 95 S.E. 149, 152 (1918), the Supreme Court said: ". . . Growing out of the obligation of the husband to properly support his wife, it [alimony] is not allowed with us as a matter of statutory right in divorces a vinculo. Duffy v. Duffy, 120 N.C. 346, 27 S.E. 28, and whether awarded as an incident to divorce a mensa et thoro or as an independent right under the present statute, and whether in specific property or current payments, it terminates on the death of either of the parties or on their reconciliation . . . ."

In 2 Lee, N.C. Family Law, § 154, at 82 (Supp.1972), we find: "Alimony, whether permanent or temporary, terminates on the death of either of the parties."

It is clear that in this jurisdiction the obligation imposed "by operation of law" to pay alimony terminates on the death of either of the parties; we think the same rule applies in the instant case, and that testate's legal obligation to make support payments to plaintiff terminated with his death.

The next question relates to the trial court's conclusion with respect to plaintiff's right to continue occupation of the residence, subject to specified conditions, and defendant's obligation to pay taxes on the residence. We hold that the court did not err in its conclusion on this question.

The "operation of law" provision of the consent judgment applied only to the support payments which testate was obligated to make. Provisions relating to the residence were contractual, unaffected by any "operation of law," and plaintiff's rights with respect to the residence survived testate's death.

Finally, we face the question of whether the trial court was authorized to enter summary judgment against defendant, the moving party. G.S. § 1A-1, Rule 56(c) provides, among other things, that summary judgment, when appropriate, may be rendered against the moving party. Under the facts in this case, we hold that the rendition of summary judgment against the moving party, to the extent hereinafter set forth, was appropriate.

For the reasons stated, the judgment appealed from is modified as follows: (1) Conclusions of law to the effect that testate's obligation to pay $13.00 per week for the support of plaintiff survived his death are vacated. (2) Paragraphs Numbered 1, 2 and 3 providing that plaintiff recover an aggregate of $390.00, representing $13.00 per week for thirty weeks following testate's death, and that defendant continue to pay plaintiff $13.00 per week from the assets of testate's estate until plaintiff's death or remarriage, are vacated. Except as so modified, the judgment is affirmed.

Modified and affirmed.

PARKER and VAUGHN, JJ., concur.