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Athey v. Athey

Filed: November 3, 1981.

ALICE H. ATHEY
v.
JAMES K. ATHEY



Appeal by plaintiff from Alexander, Judge. Judgment entered 23 January 1981 in District Court, Forsyth County. Heard in the Court of Appeals 14 October 1981.

Arnold, Judge. Chief Judge Morris and Judge Becton concur.

Arnold

Plaintiff wife argues that the trial court erred in ordering that the parties' separation agreement entitled defendant husband to a summary judgment notwithstanding the parties' reconciliation or the defendant's breach of the terms of the agreement. She contends that the separation agreement was not a bar to her action because the parties had rescinded the agreement as to executory provisions when they reconciled and returned their separate property to the joint possession of both parties. Plaintiff further contends that the defendant had breached the agreement when he ceased making car payments six months after the parties separated, and that this breach relieved her from her covenant not to seek alimony.

Defendant husband cites this Court's holding in Potts v. Potts, 24 N.C. App. 673, 211 S.E.2d 815 (1975), for the rule that any provision of a separation agreement, including waiver of the wife's right to support, which has been fully executed prior to a reconciliation of the parties is unaffected by such a reconciliation. Conversely, any provision which has not been fully performed is

deemed waived by reconciliation of the parties. The defendant claims the terms of the separation agreement at issue here were fully executed prior to the reconciliation except for the requirement that he make plaintiff's car payments and that only this term was waived by the reconciliation since each provision of the agreement was independent.

We find defendant's reliance on Potts to be misplaced since the present case is distinguishable on its facts from the Potts case. In Potts, the parties had entered into a consent decree which could not be altered without court approval. See Kiger v. Kiger, 258 N.C. 126, 128 S.E.2d 235 (1962). In the case at bar, the parties executed only a Deed of Separation, a contract which could be altered or rescinded by the parties at any time. Plaintiff's claim that the parties' reconciliation and change of circumstances following execution of the separation agreement constituted rescission of the terms of the agreement presents a question of material fact which should have been submitted to the fact finder. Moreover, Potts involved an agreement which had been fully executed as to all of its terms. Here, defendant is attempting to rescind his own obligation under the agreement while he attempts to hold plaintiff to her covenants. Defendant's breach of his obligation to make plaintiff's car payments raises an issue of material fact as to whether plaintiff was thereby relieved of her obligation not to sue for alimony.

For the foregoing reasons, we hold that the trial court erred in entering summary judgment. Accordingly, the case is reversed and remanded for trial.

Reversed.

Disposition

Reversed.

19811103

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