{
  "id": 8527222,
  "name": "BARBARA KIRKLAND McCOMBS, RICKY DALE KIRKLAND and BOBBY GENE KIRKLAND, by his Guardian Ad Litem v. ENOCH KIRKLAND",
  "name_abbreviation": "McCombs v. Kirkland",
  "decision_date": "1985-08-06",
  "docket_number": "No. 8427DC730",
  "first_page": "336",
  "last_page": "338",
  "citations": [
    {
      "type": "official",
      "cite": "76 N.C. App. 336"
    }
  ],
  "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": [],
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  "last_updated": "2023-07-14T20:46:57.071049+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Judges Arnold and Cozort concur."
    ],
    "parties": [
      "BARBARA KIRKLAND McCOMBS, RICKY DALE KIRKLAND and BOBBY GENE KIRKLAND, by his Guardian Ad Litem v. ENOCH KIRKLAND"
    ],
    "opinions": [
      {
        "text": "PHILLIPS, Judge.\nPlaintiffs sued to recover $9,488.90 of defendant because he received the benefit of certain social security checks in that amount rather than them. After discovery was completed both parties moved for summary judgment and upon the motions being heard the court granted defendant\u2019s motion and dismissed plaintiffs\u2019 action. In our judgment the order was correct, for the evidence recorded contains no material conflict and shows that plaintiffs had no right to the checks involved.\nPlaintiff Barbara Kirkland McCombs is the former wife of defendant, who she divorced in July 1978. Plaintiffs Ricky Dale Kirkland, born in 1962, and Bobby Gene Kirkland, born in 1965, are their children. Defendant was disabled in 1976 and each month beginning in February 1977 the Social Security Administration issued three checks in the amount of $120 for the benefit of his dependents; one check was made out to \u201cBarbara Kirkland for Bobby Gene Kirkland,\u201d one to \u201cBarbara Kirkland for Ricky Dale Kirkland,\u201d and the other to \u201cBarbara Kirkland for the children of Enoch Kirkland.\u201d At first the Social Security Administration routinely sent all three checks to the Independence National Bank (now Branch Bank & Trust Co.) in Stanley, where they were automatically deposited to a joint checking account that the parents, Enoch Kirkland and Barbara Kirkland, had there. But in September 1977, the parents separated and agreed, among other things, that \u201cthe monthly payment from the Social Security Administration currently in the amount of $120.00 for each child shall go to the wife, to be used for the support and maintenance of said children. Husband will cause said payments from the Social Security Administration to be deposited to the account of the wife.\u201d After that, as the separation agreement required, the monthly checks to Barbara Kirkland for Ricky Dale Kirkland and Bobby Gene Kirkland were sent to her bank and automatically deposited to her personal account, and these checks no longer concern us.\nThe checks that do concern us are those issued to \u201cBarbara Kirkland for the children of Enoch Kirkland.\u201d These checks, notwithstanding their wording, were dependent spouse payments issued under the authority of 42 U.S.C. 402(b)(1)(c), and plaintiffs concede in their brief that under the Social Security Act Barbara Kirkland ceased to be a dependent spouse after the \u201cdivorce on July 14, 1978 and Mrs. Kirkland\u2019s benefits should have terminated.\u201d But being unaware of the divorce, the Social Security Administration continued to send the checks to the parent\u2019s joint checking account until July 1982 and defendant used the funds as he saw fit. Barbara Kirkland McCombs knew nothing about these checks until shortly after they stopped and the Social Security Administration notified her that she had been receiving payments that she was not entitled to. She then contacted defendant and when he refused to pay the funds involved over to her, plaintiffs sued to recover them. Though the plaintiffs allege in the complaint that the checks were issued for the support of the minor children and thus equitably belonged to them, no evidence to support this theory was presented. Instead, the evidence indisputably shows that the checks were issued as dependent spouse payments in the mistaken belief that Barbara Kirkland was still the lawful wife of the defendant. That this evidence also establishes that defendant had no right to receive and spend the checks breathes no life into plaintiffs\u2019 claim. To win their case plaintiffs must prove that they had a legal or equitable right to receive the checks or their proceeds, and their own evidence shows that they had no such right.\nAffirmed.\nJudges Arnold and Cozort concur.",
        "type": "majority",
        "author": "PHILLIPS, Judge."
      }
    ],
    "attorneys": [
      "Rankin & Standi, by James W. Standi, for plaintiff appellants.",
      "Harris, Bumgardner & Carpenter, by Don H. Bumgardner and R. Dennis Lorance, for defendant appellee."
    ],
    "corrections": "",
    "head_matter": "BARBARA KIRKLAND McCOMBS, RICKY DALE KIRKLAND and BOBBY GENE KIRKLAND, by his Guardian Ad Litem v. ENOCH KIRKLAND\nNo. 8427DC730\n(Filed 6 August 1985)\nSocial Security and Public Welfare \u00a7 2\u2014 dependent spouse payments to husband-no right of recovery by wife and children\nDefendant\u2019s ex-wife and her children had no legal or equitable right to recover the proceeds of dependent spouse payment checks issued by the Social Security Administration to defendant in the mistaken belief that defendant and his ex-wife were still lawfully married to each other.\nAppeal by plaintiffs from Carpenter, Judge. Order entered 18 April 1984 in District Court, GASTON County. Heard in the Court of Appeals 12 March 1985.\nRankin & Standi, by James W. Standi, for plaintiff appellants.\nHarris, Bumgardner & Carpenter, by Don H. Bumgardner and R. Dennis Lorance, for defendant appellee."
  },
  "file_name": "0336-01",
  "first_page_order": 370,
  "last_page_order": 372
}