{ "id": 4156804, "name": "KAREN CARPENTER, Plaintiff v. CHRISTOPHER SCOTT CARPENTER, Defendant", "name_abbreviation": "Carpenter v. Carpenter", "decision_date": "2008-04-15", "docket_number": "No. COA07-786", "first_page": "755", "last_page": "762", "citations": [ { "type": "official", "cite": "189 N.C. App. 755" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "623 S.E.2d 263", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634571, 12634572, 12634573 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/se2d/623/0263-01", "/se2d/623/0263-02", "/se2d/623/0263-03" ] }, { "cite": "614 S.E.2d 328", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633132 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "335" }, { "page": "334", "parenthetical": "quotation omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/614/0328-01" ] }, { "cite": "182 S.E.2d 605", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1971, "pin_cites": [ { "page": "606" } ], "opinion_index": 0 }, { "cite": "12 N.C. App. 140", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8547895 ], "year": 1971, "pin_cites": [ { "page": "141" } ], "opinion_index": 0, "case_paths": [ "/nc-app/12/0140-01" ] }, { "cite": "284 S.E.2d 523", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "55 N.C. App. 86", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526756 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc-app/55/0086-01" ] }, { "cite": "463 S.E.2d 411", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "413", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "120 N.C. App. 689", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11917626 ], "year": 1995, "pin_cites": [ { "page": "691", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/120/0689-01" ] }, { "cite": "210 S.E.2d 190", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "pin_cites": [ { "parenthetical": "order granting wife's motion to strike husband's affirmative defenses to a divorce proceeding is reversed because defenses could defeat divorce action based on separation" } ], "opinion_index": 0 }, { "cite": "286 N.C. 260", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565164 ], "year": 1974, "pin_cites": [ { "parenthetical": "order granting wife's motion to strike husband's affirmative defenses to a divorce proceeding is reversed because defenses could defeat divorce action based on separation" } ], "opinion_index": 0, "case_paths": [ "/nc/286/0260-01" ] }, { "cite": "225 S.E.2d 640", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1976, "pin_cites": [ { "page": "643" } ], "opinion_index": 0 }, { "cite": "29 N.C. App. 618", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8556868 ], "year": 1976, "pin_cites": [ { "page": "623" } ], "opinion_index": 0, "case_paths": [ "/nc-app/29/0618-01" ] }, { "cite": "447 S.E.2d 510", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1994, "pin_cites": [ { "page": "512" }, { "page": "512" } ], "opinion_index": 0 }, { "cite": "116 N.C. App. 351", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523998 ], "weight": 3, "year": 1994, "pin_cites": [ { "page": "353" }, { "page": "353" } ], "opinion_index": 0, "case_paths": [ "/nc-app/116/0351-01" ] }, { "cite": "330 S.E.2d 664", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1985, "opinion_index": 0 }, { "cite": "75 N.C. App. 325", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525814 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc-app/75/0325-01" ] }, { "cite": "248 S.E.2d 103", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "108" } ], "opinion_index": 0 }, { "cite": "38 N.C. App. 310", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553539 ], "year": 1978, "pin_cites": [ { "page": "316" } ], "opinion_index": 0, "case_paths": [ "/nc-app/38/0310-01" ] }, { "cite": "214 S.E.2d 281", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "pin_cites": [ { "page": "284" } ], "opinion_index": 0 }, { "cite": "25 N.C. App. 522", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8555114 ], "year": 1975, "pin_cites": [ { "page": "525" } ], "opinion_index": 0, "case_paths": [ "/nc-app/25/0522-01" ] }, { "cite": "574 S.E.2d 688", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "691", "parenthetical": "citing Trust Co. v. Akelaitis, 25 N.C. App. 522, 525, 214 S.E.2d 281, 284 (1975)" } ], "opinion_index": 0 }, { "cite": "155 N.C. App. 598", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9251266 ], "year": 2002, "pin_cites": [ { "page": "601", "parenthetical": "citing Trust Co. v. Akelaitis, 25 N.C. App. 522, 525, 214 S.E.2d 281, 284 (1975)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/155/0598-01" ] }, { "cite": "323 S.E.2d 294", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "305" } ], "opinion_index": 0 }, { "cite": "312 N.C. 326", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4757351 ], "year": 1984, "pin_cites": [ { "page": "341" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0326-01" ] }, { "cite": "140 S.E.2d 17", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "pin_cites": [ { "page": "23" } ], "opinion_index": 0 }, { "cite": "263 N.C. 560", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571966 ], "year": 1965, "pin_cites": [ { "page": "568" } ], "opinion_index": 0, "case_paths": [ "/nc/263/0560-01" ] }, { "cite": "310 S.E.2d 338", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1984, "pin_cites": [ { "page": "344-45" }, { "page": "344" } ], "opinion_index": 0 }, { "cite": "310 N.C. 93", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2396970 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "104" }, { "page": "103" } ], "opinion_index": 0, "case_paths": [ "/nc/310/0093-01" ] }, { "cite": "243 S.E.2d 904", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "906", "parenthetical": "Parties who have been duly served with summons are required to give their defense that attention which a man of ordinary prudence usually gives his important business, and the failure to do so is not excusable" } ], "opinion_index": 0 }, { "cite": "36 N.C. App. 346", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553370 ], "year": 1978, "pin_cites": [ { "page": "347", "parenthetical": "Parties who have been duly served with summons are required to give their defense that attention which a man of ordinary prudence usually gives his important business, and the failure to do so is not excusable" } ], "opinion_index": 0, "case_paths": [ "/nc-app/36/0346-01" ] }, { "cite": "262 S.E.2d 716", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "718-19" } ], "opinion_index": 0 }, { "cite": "45 N.C. App. 287", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548432 ], "year": 1980, "pin_cites": [ { "page": "290-91" } ], "opinion_index": 0, "case_paths": [ "/nc-app/45/0287-01" ] }, { "cite": "548 S.E.2d 535", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2001, "pin_cites": [ { "page": "540", "parenthetical": "internal citations and quotations omitted" }, { "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "144 N.C. App. 79", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11432859 ], "year": 2001, "pin_cites": [ { "page": "87", "parenthetical": "internal citations and quotations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/144/0079-01" ] }, { "cite": "360 N.C. 78", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3789190, 3790698, 3793132, 3793873, 3791767, 3790329, 3790458 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/nc/360/0078-06", "/nc/360/0078-04", "/nc/360/0078-07", "/nc/360/0078-02", "/nc/360/0078-03", "/nc/360/0078-05", "/nc/360/0078-01" ] }, { "cite": "171 N.C. App. 58", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8434676 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "66" }, { "page": "66" } ], "opinion_index": 0, "case_paths": [ "/nc-app/171/0058-01" ] }, { "cite": "302 S.E.2d 809", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "308 N.C. 536", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4707621 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/308/0536-01" ] }, { "cite": "588 S.E.2d 20", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2003, "pin_cites": [ { "page": "25", "parenthetical": "citing Byrd v. Mortenson, 308 N.C. 536, 302 S.E.2d 809 (1983)" }, { "page": "25", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "161 N.C. App. 20", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8955097 ], "weight": 2, "year": 2003, "pin_cites": [ { "page": "25", "parenthetical": "citing Byrd v. Mortenson, 308 N.C. 536, 302 S.E.2d 809 (1983)" }, { "page": "25" } ], "opinion_index": 0, "case_paths": [ "/nc-app/161/0020-01" ] } ], "analysis": { "cardinality": 772, "char_count": 18264, "ocr_confidence": 0.738, "pagerank": { "raw": 3.0795358113676016e-07, "percentile": 0.8578988581959798 }, "sha256": "7c7cbd12efc5189ec81043bfc258c76c4cc1a74b1e9fc76c9d9e7999e2fe433a", "simhash": "1:f5c940ba7c6f6c14", "word_count": 2992 }, "last_updated": "2023-07-14T16:47:52.494477+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges HUNTER and STROUD concur." ], "parties": [ "KAREN CARPENTER, Plaintiff v. CHRISTOPHER SCOTT CARPENTER, Defendant" ], "opinions": [ { "text": "CALABRIA, Judge.\nChristopher Scott Carpenter (\u201cdefendant\u201d) appeals an order granting Karen Carpenter\u2019s (\u201cplaintiff\u2019) motion to strike defendant\u2019s answer and motion for judgment on the pleadings. We reverse.\nDefendant and plaintiff were married on 30 April 1994. Two minor children were born of the marriage. The parties separated on 31 October 2005 and entered into a separation agreement and property settlement (\u201cseparation agreement\u201d) on 3 November 2005.\nOn 30 August 2006, plaintiff filed a verified complaint alleging breach of the separation agreement for defendant\u2019s failure to pay spousal support, child support, and other expenses defendant had agreed to pay. Plaintiff asked the court to order defendant to specifically perform under the separation agreement. Defendant was served with the complaint on 21 September 2006. Defendant timely filed for an extension of time and the trial court extended the time for defendant to file his answer through 20 November 2006.\nBy 1 December 2006, since defendant had not filed an answer, plaintiff filed a motion for judgment on the pleadings. The same day, plaintiff filed a notice of hearing for the motion for judgment on the pleadings for 18 December 2006 and mailed a copy to defendant. Defendant responded by filing an \u00bfnswer on 15 December 2006 that denied all material allegations in the complaint, raised several defenses, and asserted counterclaims against plaintiff for absolute divorce and a computation of child support according to the North Carolina Child Support Guidelines (\u201cAnswer\u201d).\nOn 20 December 2006, plaintiff filed a motion to strike defendant\u2019s Answer (\u201cmotion to strike\u201d). The same day, plaintiff filed a notice of hearing for 8 January 2007. Upon defendant\u2019s motion, the hearing was continued to 5 February 2007. A notice of hearing on plaintiff\u2019s motion to strike was filed and served on 10 January 2007.\nOn 5 February 2007, Davie County District Court Judge Mary F. Covington (\u201cJudge Covington\u201d) called the case for hearing. Plaintiff\u2019s counsel was present at calendar call. Defendant\u2019s counsel sent a fax to the court stating he would be present at 10:30 a.m. At 11 a.m., the trial court heard the pending motions. Neither defendant nor his counsel were present. Judge Covington granted the motion to strike.\nJudge Covington then heard plaintiffs motion for judgment on the pleadings. Plaintiff presented evidence to support her allegation that defendant did not pay child support and post-separation support. Judge Covington granted judgment on the pleadings for the plaintiff. At 11:56 a.m. the same morning, defendant filed an affidavit asserting he verified his answer in good faith and did not have an intention to delay the proceeding. An order granting plaintiffs motions was entered on 7 February 2007. Defendant appeals.\nAs a preliminary matter, we note that defendant did not include the standard of review in his brief, as required by the North Carolina Rules of Appellate Procedure. N.C.R. App. P. 28(b)(6) (2007). However, this rule violation does not merit sanctions. Dogwood Dev. & Mgmt. Co., LLC v. White Oak Transp. Co., 192 N.C. \u2014, \u2014 S.E.2d. -, (2008) (nonjurisdictional appellate rule violations that do not rise to the level of a substantial failure or gross violation do not merit sanctions).\nI. Standard of Review\n\u201cA motion to strike an answer is addressed to the sound discretion of the trial court and its ruling will not be disturbed absent an abuse of discretion.\u201d Broughton v. McClatchy Newspapers, Inc., 161 N.C. App. 20, 25, 588 S.E.2d 20, 25 (2003) (citing Byrd v. Mortenson, 308 N.C. 536, 302 S.E.2d 809 (1983)).\nThis Court reviews a trial court\u2019s grant of a motion for judgment on the pleadings de novo. Toomer v. Branch Banking & Tr. Co., 171 N.C. App. 58, 66, 614 S.E.2d 328, 335, disc. rev. denied, 360 N.C. 78, 623 S.E.2d 263 (2005). \u201cJudgment on the pleadings, pursuant to Rule 12(c), is appropriate when all the material allegations of fact are admitted in the pleadings and only questions of law remain.\u201d Groves v. Community Hous. Corp., 144 N.C. App. 79, 87, 548 S.E.2d 535, 540 (2001) (internal citations and quotations omitted). \u201cJudgments on the pleadings are disfavored in law, and the trial court must view the facts and permissible inferences in the light most favorable to the non-moving party.\u201d Id. (citations omitted).\nII. The Hearing\nDefendant argues the trial court erred in hearing plaintiff\u2019s motion to strike and motion for judgment on the pleadings because counsel was not present at the hearing, and the trial judge demonstrated bias in favor of the plaintiff. We disagree.\nA trial court does not abuse its discretion in hearing a motion where counsel had adequate notice of the hearing and failed to demonstrate excusable neglect for failure to appear for the hearing. Chris v. Hill, 45 N.C. App. 287, 290-91, 262 S.E.2d 716, 718-19 (1980).\nNorth Carolina Rules of Civil Procedure, Rule 6(d) requires written motions and \u201cnotice of the hearing thereof\u2019 to be served no later than five days before the time specified for the hearing. N.C.R. Civ. P. 6(d) (2007). Defendant had adequate notice of the hearing as evidenced by the calendar request and notice of hearing in the record. The written motion for the judgment on the pleadings was mailed to defendant along with a notice of hearing. The day of the hearing, defendant notified the trial court he would be present at 10:30 a.m. The trial court heard the motions after 11 a.m., after determining that defense counsel made no further contact with the trial court. We conclude the trial court did not abuse its discretion in hearing the motions. See Texas Western Financial Corp. v. Mann, 36 N.C. App. 346, 347, 243 S.E.2d 904, 906 (1978) (Parties who have been duly served with summons are required to give their defense that attention which a man of ordinary prudence usually gives his important business, and the failure to do so is not excusable).\nDefendant argues the trial judge\u2019s comments during the hearing were inappropriate and contrary to the Code of Judicial Conduct, Canon 3A(3), 2007 Ann. R. N.C. 445, requiring judges to be patient, dignified and courteous to litigants.\n\u201cMore than a bare possibility of prejudice from a remark of the judge is required to overturn a verdict or a judgment.\u201d Colonial Pipeline Co. v. Weaver, 310 N.C. 93, 104, 310 S.E.2d 338, 344-45 (1984). Our Supreme Court recognizes that a judge\u2019s inappropriate comments in the presence of the jury impedes impartiality of the trial process, yet \u201cit is incumbent upon the appellant\u201d to show prejudice by these remarks. Id., 310 N.C. at 103, 310 S.E.2d at 344; Upchurch v. Funeral Home, 263 N.C. 560, 568, 140 S.E.2d 17, 23 (1965); State ex rel. Edmisten v. Tucker, 312 N.C. 326, 341, 323 S.E.2d 294, 305 (1984).\nHere, the trial judge ruled on plaintiff\u2019s motion for judgment on the pleadings in a non-jury proceeding. Defendant argues Judge Covington\u2019s comment, \u201cwhy waste everyone\u2019s time,\u201d in responding to plaintiff\u2019s counsel\u2019s protest to the judge that he \u201cdid not get to argue,\u201d \u201cestablishes a predisposition and bias against Defendant\u2019s counsel\u201d and such comments violate the Code of Judicial Conduct and \u201cconstitute conduct prejudicial to the administration of justice. ...\u201d Whether or not the judge\u2019s comments violated the Code of Judicial Conduct is the province of the Judicial Standards Commission. N.C. Gen. Stat. \u00a7 7A-374.1 (2007). Defendant was prejudiced by his failure to appear in court which was the result of his neglect. This assignment of error is overruled.\nIII. Motion to Strike\nRule 12(f) of the North Carolina Rules of Civil Procedure, allows the court to strike \u201cfrom any pleading any insufficient defense or any redundant, irrelevant, immaterial, impertinent, or scandalous matter.\u201d N.C.R. Civ. P. 12(f) (2005). \u201cA motion to strike an answer is addressed to the sound discretion of the trial court and its ruling will not be disturbed absent an abuse of discretion.\u201d Broughton, 161 N.C. App. at 25, 588 S.E.2d at 25 (citation omitted). \u201cA motion under Rule 12(f) is a device to test the legal sufficiency of an affirmative defense.\u201d Faulconer v. Wysong and Miles Co., 155 N.C. App. 598, 601, 574 S.E.2d 688, 691 (2002) (citing Trust Co. v. Akelaitis, 25 N.C. App. 522, 525, 214 S.E.2d 281, 284 (1975)). \u201cMatter should not be stricken unless it has no possible bearing upon the litigation. If there is any question as to whether an issue may arise, the motion [to strike] should be denied.\u201d Shellhorn v. Brad Ragan, Inc., 38 N.C. App. 310, 316, 248 S.E.2d 103, 108 (1978).\nDefendant argues the trial court erred in granting the motion to strike because his answer was filed before the hearing on the motion to strike and motion for judgment on the pleadings. We agree that the trial court erred in granting plaintiff\u2019s motion to strike because failure to timely file an answer is not grounds for striking a pleading under Rule 12(f) and defendant\u2019s Answer raised matters which could have a possible bearing on the litigation.\nIt is error for a court to grant a motion to strike a pleading that was untimely filed in the absence of a showing that the pleading violates Rule 12(f). According to the plain language of North Carolina Rules of Civil Procedure, Rule 12(f), untimely filing is not grounds for striking a pleading. See N.C. Gen. Stat. \u00a7 1A-1, Rule 12(f) (2007) (\u201c[T]he judge may order stricken from any pleading any insufficient defense or any redundant, irrelevant, immaterial, impertinent, or scandalous matter.\u201d). In Joe Newton, Inc. v. Tull, 75 N.C. App. 325, 330 S.E.2d 664 (1985), this Court addressed whether the trial court should have granted a motion to strike an answer that was untimely filed. In that case, the plaintiff also moved for a default judgment after the answer had been filed, in part on the basis that the answer was untimely. The trial court granted summary judgment for defendants and plaintiff appealed. This Court concluded that even if the motion to strike were allowed, summary judgment for defendants would still be proper because there was an affirmative defense raised in the defendants\u2019 answer. Untimely filing did not preclude the sufficiency of the answer. Id.\nSimilarly in Fieldcrest Cannon Employees Credit Union v. Mabes, 116 N.C. App. 351, 447 S.E.2d 510 (1994), this Court reversed default judgment for plaintiff where the default judgment was entered after granting plaintiff\u2019s motion to strike the answer and counterclaim. Defendant obtained an extension of time to file his answer. Defendant filed his answer late and plaintiff moved to strike the answer and counterclaim and for an entry of default and default judgment. This Court concluded no prejudice resulted in the late filing and \u201cthat justice is better served by allowing the parties to fully litigate their claims.\u201d Id., 116 N.C. App. at 353, 447 S.E.2d at 512.\nIn support of plaintiff\u2019s motion to strike, plaintiff contends defendant\u2019s failure to timely file his answer violated Rule 12(a) of the North Carolina Rules of Civil Procedure. Plaintiff cites Fagan v. Hazzard, 29 N.C. App. 618, 623, 225 S.E.2d 640, 643 (1976) in support of her argument.\nIn Fagan, defendant assigned error to the trial court\u2019s finding that defendant did not show excusable neglect to support filing his untimely answer. After defendant filed a late answer, plaintiff moved to strike the answer. \u201cBased upon the findings, the [trial] court concluded that \u2018(n)o excusable neglect (had) been shown by the defendant in failing to timely file [an] answer to the complaint and entered an order striking the answer and counterclaim and denying defendant\u2019s motion for leave to file an answer and counterclaim. [\u2019]\u201d Id. This Court applied North Carolina Rule of Civil Procedure Rule 6(b) and determined the trial court\u2019s finding that defendant failed to show excusable neglect in filing an untimely answer was supported by the record. Id. Under Rule 6(b) of the North Carolina Rules of Civil Procedure, the trial court in its discretion, for cause shown, may extend the time period for a response to a pleading, if the request is made before the time has expired. N.C.R. Civ. P. 6(b) (2007). If time has expired, the trial court may allow an action \u201cwhere the failure to act was the result of excusable neglect.\u201d Id.\nThe relevant issue in Fagan was whether the trial court erred in finding a lack, of excusable neglect. The Fagan court did not address whether an untimely filing is sufficient grounds for a court to strike an answer under Rule 12(f). Here, as in Fieldcrest Cannon, defendant filed his answer after he received an extension of time, and plaintiff moved to strike the answer as untimely. The motion to strike was improperly granted because untimely filing is not one of the grounds to strike a pleading under Rule 12(f) and \u201cjustice is better served by allowing the parties to fully litigate their claims.\u201d Fieldcrest Cannon, 116 N.C. App. at 353, 447 S.E.2d at 512.\nMore importantly, defendant\u2019s Answer raised seven defenses and two counterclaims. Pleadings should not be stricken unless the matter cannot have any possible bearing on the litigation. Shellhom, supra. Defendant raised several defenses to plaintiff\u2019s breach of contract claim. Some of the defenses included that the separation agreement was not supported by consideration; that vital and relevant information was concealed from him; that the terms of the separation agreement are substantively and procedurally unconscionable; and that enforcement of the separation agreement was contingent upon defendant\u2019s employment. In addition, defendant counterclaimed for absolute divorce and calculation of child support and the defenses and counterclaims could have a possible bearing on the litigation. See Harrington v. Harrington, 286 N.C. 260, 210 S.E.2d 190 (1974) (order granting wife\u2019s motion to strike husband\u2019s affirmative defenses to a divorce proceeding is reversed because defenses could defeat divorce action based on separation). We conclude the trial court abused its discretion in striking defendant\u2019s Answer.\nIV. Motion for Judgment on the Pleadings\nNext we examine the issue of whether the trial court erred in granting plaintiff\u2019s motion for judgment on the pleadings.\nNorth Carolina Rule of Civil Procedure, Rule 12(c) provides that \u201c[a]fter the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings.\u201d A motion for judgment on the pleadings should not be granted unless the movant clearly establishes that no material issue of fact remains to be resolved and that he is entitled to judgment as a matter of law. Toomer, 171 N.C. App. at 66, 614 S.E.2d at 334 (quotation omitted). \u201cSince a judgment on the pleadings is a summary procedure with the decision being final, these motions must be carefully examined to ensure that the non-moving party is not prevented from receiving a full and fair hearing on the merits.\u201d Garrett v. Winfree, 120 N.C. App. 689, 691, 463 S.E.2d 411, 413 (1995) (citation omitted). Judgment on the pleadings is not favored by law and the trial court is required to view the facts and permissible inferences in the light most favorable to the nonmovant. Flexolite Electrical v. Gilliam, 55 N.C. App. 86, 284 S.E.2d 523 (1981).\nIn Yancey v. Watkins, 12 N.C. App. 140, 141, 182 S.E.2d 605, 606 (1971), defendants moved for a judgment on the pleadings after plaintiff filed an amended complaint, but before defendants filed their amended answer. This Court vacated the trial court\u2019s grant of defendants\u2019 motion for judgment on the pleadings because it determined the pleadings were not closed. Id.\nHere, plaintiff\u2019s motion for judgment on the pleadings was predicated on her motion to strike defendant\u2019s Answer. If the trial court had not stricken the Answer, the pleadings would not have been closed. Judgment on the pleadings is improper if the pleadings are not closed. Since we conclude the trial court improperly struck defendant\u2019s Answer, the trial court\u2019s allowance of plaintiff\u2019s motion for judgment on the pleadings also was error. We reverse and remand for a hearing on the merits.\nReversed and remanded.\nJudges HUNTER and STROUD concur.", "type": "majority", "author": "CALABRIA, Judge." } ], "attorneys": [ "Law Office of E. Edward Vogler, Jr., P.A., by E. Edward Vogler, Jr. and Emily R. Hunter, for plaintiff-appellee.", "Harrell Powell, Jr., for defendant-appellant." ], "corrections": "", "head_matter": "KAREN CARPENTER, Plaintiff v. CHRISTOPHER SCOTT CARPENTER, Defendant\nNo. COA07-786\n(Filed 15 April 2008)\n1. Pleadings\u2014 motion to strike \u2014 absence of counsel \u2014 notice of hearing\nThe trial court did not abuse its discretion by hearing plaintiff\u2019s motion to strike defendant\u2019s answer and motion for judgment on the pleadings in the absence of defense counsel where defendant had adequate notice of the hearing.\n2. Judges\u2014 comment on counsel\u2019s failure to appear \u2014 prejudice due to counsel\u2019s neglect\nDefendant was not prejudiced in a hearing on plaintiff\u2019s motions to strike defendant\u2019s answer and for judgment on the pleadings where the judge said, \u201cWhy waste everybody\u2019s time\u201d when plaintiff\u2019s counsel protested that he had not been able to argue. Defendant was prejudiced by his failure to appear in court, which was the result of his neglect, and whether the judge\u2019s comments violated the Code of Judicial Conduct is the province of the Judicial Standards Commission.\n3. Pleadings\u2014 motion to strike \u2014 timeliness of answer\nThe trial court abused its discretion by striking defendant\u2019s answer because failure to timely file an answer is not grounds for striking a pleading under N.C.G.S. \u00a7 1A-1, Rule 12(f), and defendant\u2019s answer raised matters which could have a possible bearing on the litigation.\n4. Pleadings\u2014 judgment on the pleadings \u2014 pleadings not closed\nThe trial court erred by granting plaintiff\u2019s motion for judgment on the pleadings where the motion was predicated on plaintiff\u2019s motion to strike defendant\u2019s answer, and that motion was improperly allowed. Judgment on the pleadings is not proper if the pleadings are not closed, and the pleadings here would not have been closed if the court had not stricken the answer.\nAppeal by defendant from order entered 7 February 2007 by Judge Mary F. Covington in D\u00e1vie County District Court. Heard in the Court of Appeals 9 January 2008. \u2022\nLaw Office of E. Edward Vogler, Jr., P.A., by E. Edward Vogler, Jr. and Emily R. Hunter, for plaintiff-appellee.\nHarrell Powell, Jr., for defendant-appellant." }, "file_name": "0755-01", "first_page_order": 787, "last_page_order": 794 }