Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Sutton v. Sutton

Filed: April 6, 1982.

SAROBIA SUTTON
v.
KENNETH W. SUTTON



Appeal by defendant from Burris, Judge. Judgment entered 26 February and 5 March 1981 in District Court, Union County. Heard in the Court of Appeals 11 March 1982.

Arnold, Judge. Judges Clark and Webb concur.

Arnold

Defendant's sole argument on appeal is that the trial court erred in denying his motion for a paternity test. Defendant contends that the 1976 divorce judgment is not determinative of the issue of paternity because the court made no findings of fact concerning that issue. It is true that no express finding on this issue

was set forth in the divorce order. However, plaintiff raised the issue in her complaint and the court impliedly addressed it by granting defendant visitation privileges and ordering him to pay child support. Moreover, defendant failed to appear or to raise his defense in the original action although he was properly served with process. As this Court stated in Williams v. Holland, 39 N.C. App. 141, 148, 249 S.E.2d 821, 826 (1978), "[i]t is a well established principle in North Carolina . . . that a valid judgment is binding on the parties to it 'as to all issuable matters contained in the pleadings, including all material and relevant matters within the scope of the pleadings, which the parties, in the exercise of due diligence, could and should have brought forward." Bruton v. Light Co., 217 N.C. 1, 7, 6 S.E.2d 822, 826 (1940)."

The trial court correctly held that defendant's failure to deny paternity in the original action between the parties, wherein the issue was duly raised in the complaint, operates as a bar to the defense in the subsequent action between the same parties.

Affirmed.

Disposition

Affirmed.

19820406

© 1998 VersusLaw ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.