201 S.E.2d 557 | N.C. Ct. App. | 1974
Franklin Lewis ROBUCK
v.
Jennie G. ROBUCK.
Court of Appeals of North Carolina.
*561 Robert S. Swain, Asheville, for plaintiff appellee.
Boyce, Mitchell, Burns & Smith by Robert E. Smith, Raleigh, for defendant appellant.
VAUGHN, Judge.
We see nothing in the agreement of the parties signed 1 March 1971 which, as a matter of law, bars defendant's right to defend the action brought against her and to assert her cross action. G.S. § 50-16.6(b), on which the Court relied, provides: "(b) Alimony, alimony pendente lite, and counsel fees may be barred by an express provision of a valid separation agreement so long as the agreement is performed." (Emphasis added.) The agreement in question contains no such provision, express or implied. Moreover, on its face, it does not appear to be a "separation agreement" for there is no agreement to separate or to live separately and apart. The recital that party of the first part is contemplating the filing of a complaint for divorce does not specify the grounds. Indeed, the basis for the contemplated divorce action may well have been the very grounds she now seeks to assert by way of her defense and cross action. Defendant agreed to accept alimony for the time stated but did not agree to relinquish her right to additional alimony or any other right arising out of the marriage except "she will have no further interest in the businesses or properties owned by the Party of the Second Part." The agreement appears to be a property settlement and not a separation agreement which, under appropriate circumstances, might be used as a defense against the matters raised in defendant's responsive pleading.
Reversed.
CAMPBELL and HEDRICK, JJ., concur.
