{
  "id": 8549815,
  "name": "PATRICIA W. BEVERLY v. TED M. BEVERLY",
  "name_abbreviation": "Beverly v. Beverly",
  "decision_date": "1979-09-18",
  "docket_number": "No. 7826DC1163",
  "first_page": "60",
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      "year": 1977,
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      "reporter": "N.C. App.",
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      "reporter": "S.E.2d",
      "year": 1953,
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      "cite": "237 N.C. 462",
      "category": "reporters:state",
      "reporter": "N.C.",
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    {
      "cite": "117 S.E. 2d 826",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1961,
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    {
      "cite": "253 N.C. 620",
      "category": "reporters:state",
      "reporter": "N.C.",
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      "year": 1961,
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  "last_updated": "2023-07-14T16:43:38.047576+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Judges Hedrick and Vaughn concur."
    ],
    "parties": [
      "PATRICIA W. BEVERLY v. TED M. BEVERLY"
    ],
    "opinions": [
      {
        "text": "ARNOLD, Judge.\nDefendant first argues that plaintiff failed to carry her burden of proving that she is entitled to judgment as a matter of law, which is required for summary judgment. G.S. 1A-1, Rule 56(c). He points to the fact that her complaint is unverified, and that she offered no affidavit or other material to support her motion. However, G.S. 1A-1, Rule 56(c) provides that pleadings may be considered on a motion for summary judgment, and G.S. 1A-1, Rule 11(a) indicates that as a general rule, pleadings need not be verified. Furthermore, G.S. 1A-1, Rule 56(a) provides that a party may move \u201cwith or without supporting affidavits\u201d for a summary judgment. Plaintiff complied with the requirements for a summary judgment motion.\nThe parties\u2019 separation agreement provides that \u201c[t]he Husband shall pay to the Wife, for her support and maintenance, the sum of $265.00 per month.\u201d Defendant argues that it was the intent of the parties that these payments should continue only until the wife was capable of supporting herself.\nThe payments at issue are not alimony, but periodic payments provided for by a contract. See Stanley v. Cox, 253 N.C. 620, 117 S.E. 2d 826 (1961). A separation agreement, like any other contract, turns upon the intent of the parties. Bowles v. Bowles, 237 N.C. 462, 75 S.E. 2d 413 (1953). By affidavit, the defendant presented evidence that before signing the separation agreement he \u201chad a discussion with . . . the plaintiff, and ... told her that I was not going to pay her alimony forever and did further state to her that I was quite willing to pay her a reasonable amount of support for her until such time as the plaintiff could adjust to being employed and could be making her own way without my help. She did not say much about that but the agreement entered into was signed after that discussion.\u201d Defendant argues that the consideration of this evidence to \u201cclarify the writing\u201d would not violate the parol evidence rule.\nWithout ruling on the parol evidence question, we find that, even if this evidence were considered, defendant has not presented sufficient evidence to show that there exists a genuine issue as to the termination date for the periodic payments. Defendant\u2019s affidavit, at most, shows that he expressed to the plaintiff his unwillingness to make payments to her indefinitely. It does not show that it was the intent of both the parties that he would cease making payments when she became able to support herself. See 17 Am. Jur. 2d, Contracts \u00a7 18 (an objective manifestation of mutual assent is necessary to form a contract). As we said in Grady v. Grady, 29 N.C. App. 402, 403-04, 224 S.E. 2d 282, 283 (1976), \u201c[t]he effect of the agreement is not controlled by what one of the parties intended or understood.\u201d Summary judgment for plaintiff on this issue was proper.\nThe separation agreement also provides that \u201c[t]he Husband shall pay to the Wife, for the support and maintenance of the children of the marriage, the sum of $450.00 per month and such child support shall not be reduced until the youngest child of the marriage reaches 18 years of age, at which time all child support shall cease.\u201d Defendant, relying upon Goodson v. Goodson, 32 N.C. App. 76, 231 S.E. 2d 178 (1977), contends that he is entitled to credit of $112.50 (one-fourth of the child support amount) for each month that the parties\u2019 son Mike has been living with him rather than with plaintiff. Plaintiff would have us read the language of the separation agreement literally and allow no reduction in support payments.\nIn Goodson v. Goodson, id., plaintiff father who was ordered to pay child support to his ex-wife sought credit against his obligation for expenses he incurred for clothing, recreation and medical treatment. We determined that credit should be allowed to prevent an injustice. Likewise in the case before us we are persuaded by equitable considerations that credit is necessary. It is uncontradicted that Mike went to live with defendant at plaintiff\u2019s request. An injustice would result if defendant were not given some credit for amounts spent for Mike\u2019s support. Therefore, we remand for the trial court to determine the amount of credit to which defendant is entitled.\nAffirmed in part.\nReversed and remanded in part.\nJudges Hedrick and Vaughn concur.",
        "type": "majority",
        "author": "ARNOLD, Judge."
      }
    ],
    "attorneys": [
      "Samuel M. Millette for plaintiff appellee.",
      "Wardlow, Knox, Knox, Robinson & Freeman, by William G. Robinson & John S. Freeman, for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "PATRICIA W. BEVERLY v. TED M. BEVERLY\nNo. 7826DC1163\n(Filed 18 September 1979)\n1. Rules of Civil Procedure \u00a7 56\u2014 summary judgment \u2014complaint unverified \u2014 no supporting material offered \u2014sufficiency of motion\nPlaintiff complied with the requirements for a summary judgment motion though her complaint was unverified and though she offered no affidavit or other material to support her motion.\n2. Husband and Wife \u00a7 11\u2014 separation agreement \u2014duration of support payments \u2014intent of parties\nIn an action to recover payments due under a separation agreement, there was no merit to defendant\u2019s contention that it was the intent of the parties that payments for maintenance and support should continue only until plaintiff wife was capable of supporting herself, since defendant\u2019s affidavit showed only his unwillingness to make payments to plaintiff indefinitely but did not show that it was the intent of both the parties that he would cease making payments when she became self-supporting.\n3. Husband and Wife \u00a7 11.1\u2014 separation agreement \u2014child support provisions \u2014 change in child custody \u2014amount of support changed\nThough a separation agreement between the parties provided that defendant should pay plaintiff child support of $450 per month and that such amount should not be reduced until the youngest child reached 18 years of age, defendant was nevertheless entitled to a credit against his obligation for the support of one of the children who, at plaintiff\u2019s request, went to live with defendant.\nAPPEAL by defendant from Cantrell, Judge. Judgment entered 6 October 1978 in Superior Court, MECKLENBURG County. Heard in the Court of Appeals 28 August 1979.\nPlaintiff alleges that the parties are divorced, and that defendant has failed to make payments due under their separation agreement. Defendant admits that he has paid $900 less than the agreement requires, but he seeks credit of one-fourth of the agreed-upon child support payments due to the fact that one of the children has been living with him rather than with the plaintiff. Defendant admits the genuineness of the separation agreement, which provides for monthly payments of $265 to the plaintiff and $450 child support.\nPlaintiff moved for summary judgment. In opposition to the motion defendant filed his affidavit, stating that it was the intent of the parties that he make payments to plaintiff only until she was able to support herself, which she is now able to do. In addition, he indicated that the parties\u2019 oldest son Mike had come to live with him at plaintiff\u2019s request, and that he had been able to support Mike only by reducing the total child support payments to plaintiff. Recently a second son had come to live with him, and his daughter had expressed a desire to do so as well.\nPlaintiff\u2019s motion for summary judgment was granted and defendant appeals.\nSamuel M. Millette for plaintiff appellee.\nWardlow, Knox, Knox, Robinson & Freeman, by William G. Robinson & John S. Freeman, for defendant appellant."
  },
  "file_name": "0060-01",
  "first_page_order": 88,
  "last_page_order": 91
}