Divorce--absolute divorce complaint--answer denying allegations--summary judgment
Defendant wife's verified answer generally denying the allegations of plaintiff husband's
verified complaint for absolute divorce was insufficient to raise a genuine issue of material fact,
and the trial court properly granted plaintiff's motion for summary judgment on his divorce
claim. Appeal by defendant from judgment signed 17 December 1997 by
Judge Jerry F. Waddell in Pamlico County District Court. Heard
in the Court of Appeals 5 January 1999.
Peter Mack, Jr., for plaintiff-appellee.
David H. Rogers, for defendant-appellant.
GREENE, Judge.
Kathleen Daniel (Defendant) appeals from the trial court's
order granting of Faron Daniel's (Plaintiff) motion for summary
judgment.
On 8 August 1997, Plaintiff filed a verified complaint with
the Clerk of Court in Pamlico County seeking an absolute divorce.
In his complaint, Plaintiff alleges, inter alia: (1) "3. The
parties were intermarried on July 1, 1989 and are still
intermarried"; (2) "5. For more than one year next preceding the
institution of this action the parties have lived continuously
separate and apart from each other, to wit: June 8, 1996"; (3)
"6. At the time the parties separated it was the intention of the
Plaintiff to live thereafter permanently separate and apart from
the Defendant"; and (4) "9. That the Plaintiff is entitled and
should be granted an absolute divorce from the Defendant."
Plaintiff also requested that his verified complaint be "taken asan affidavit upon which the [trial] Court may base all of its
orders in this case."
On 5 September 1997, Defendant filed a verified motion to
dismiss, answer, and counterclaim (collectively, answer) wherein
she states, inter alia, "P# 5, 6 and 9 of the Complaint are
denied." Defendant also moved to dismiss Plaintiff's complaint
and filed a counterclaim for alimony, child custody of both
children, and child support. In addition, Defendant requested
that her answer "be allowed and taken as Defendant's affidavit in
support of her allegations and statements upon which may be based
all Orders of this Court."
On 30 September 1997, Plaintiff moved for summary judgment
on his request for an Absolute Divorce,
(See footnote 1)
and his motion was
granted on 17 December 1997, nunc pro tunc, 24 October 1997.
Defendant filed notice of appeal on 20 November 1997, assigning
error to the trial court's determination that there was no
triable issue of material fact with respect to Plaintiff's claim
for Absolute Divorce.
The dispositive issue is whether Defendant's answergenerally denying the allegations of Plaintiff's complaint for
Absolute Divorce is sufficient to raise a genuine issue of
material fact.
A party moving for summary judgment has the burden of
establishing the lack of any genuine issue of material fact and
that he is entitled to a judgment as a matter of law. N.C.G.S. §
1A-1, Rule 56(c) (1990); Pembee Mfg. Corp. v. Cape Fear Constr.
Co., 313 N.C. 488, 491, 329 S.E.2d 350, 353 (1985); N.C.G.S. §
50-10(d) (1995) (summary judgment appropriate for absolute
divorce based on one year separation). If the moving party meets this burden, "an adverse party may not rest upon the mere
allegations or denials of his pleading, but his response, by
affidavits or as otherwise provided in this rule, must set forth
specific facts showing that there is a genuine issue for trial."
N.C.G.S. § 1A-1, Rule 56(e) (1990) (emphasis added). "If [the
non-movant] does not so respond, summary judgment, if
appropriate, shall be entered against him." Id. A verified
pleading may be treated as an affidavit for summary judgment
purposes if it: (1) is made on personal knowledge; (2) sets forth
such facts as would be admissible into evidence; and (3) shows
affirmatively that the affiant is competent to testify to the
matters stated therein. N.C.G.S. § 1A-1, Rule 56(e) (1990); Page
v. Sloan, 281 N.C. 697, 705, 190 S.E.2d 189, 194 (1972).
In this case, Plaintiff's verified complaint satisfies the
requisite criteria to be treated as an affidavit, and establishes
the parties had lived continuously separate and apart for one
year, with the intention of Plaintiff to live permanently
separate and apart. The affidavit/complaint raises no issues of
material fact and establishes Plaintiff's entitlement to an
Absolute Divorce based on a one-year separation with an intention
on the part of Plaintiff to remain separate and apart.
(See footnote 2) See
Earles v. Earles, 29 N.C. App. 348, 349, 224 S.E.2d 284, 286 (1976) ("[T]here must be both a physical separation and an
intention on the part of at least one of the parties to cease
matrimonial cohabitation."). Defendant, therefore, had the
burden of bringing forth specific facts showing there was a
genuine issue for trial or in the absence of such a showing, that
Plaintiff was not entitled to judgment. In her verified answer,
which is treated as an affidavit because it satisfies the
requisite criteria, Defendant simply made a general denial of the
pertinent allegations of Plaintiff's complaint. This general
denial is insufficient to "set forth [the] specific facts" at
issue for trial, as required by Rule 56(e), and Defendant thus
failed to rebut Plaintiff's motion for summary judgment. See
Amoco Oil Co. v. Griffin, 78 N.C. App. 716, 718, 338 S.E.2d 601,
602 (an answer re-affirmed by an affidavit "which only generally
denies the allegations of the complaint fails to raise a genuine
issue of fact"), disc. review denied, 316 N.C. 374, 342 S.E.2d
889 (1986). Accordingly, the trial court properly granted
Plaintiff's motion for summary judgment on his claim for Absolute
Divorce.
Affirmed.
Judges JOHN and HUNTER concur.
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