Perkins v. Perkins

Court of Appeals of North Carolina

Perkins v. Perkins

463 S.E.2d 552, 120 N.C. App. 638, 1995 N.C. App. LEXIS 900

CourtCourt of Appeals of North Carolina

DecidedNovember 7, 1995

DocketNo. 94-1364

StatusPublished

This text of 463 S.E.2d 552 (Perkins v. Perkins) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Perkins v. Perkins, 463 S.E.2d 552, 120 N.C. App. 638, 1995 N.C. App. LEXIS 900 (N.C. Ct. App. 1995).

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Opinion

PER CURIAM

The issue in this appeal is the proper construction of a paragraph found in a separation agreement and property settlement entered into by the parties on 5 November 1992 and incorporated into judgment entered 12 November 1992. The paragraph provides:

[639]*639Husband shall pay to wife for the maintenance and support of his children the sum of $1,000.00 per month, said sum to be paid on or before the first day of each calendar month beginning November 1, 1992, and continuing thereafter in a like amount until each child marries, otherwise becomes emancipated, finishes college, or attains the age .of twenty-two (22) years, whichever shall first occur, (emphasis added)

Defendant argues the italicized words terminate his support duty when each child reaches the age of 18. The trial court rejected this argument and found the phrase to be ambiguous. The court then concluded that it was the intent of the parties that the support continue as long as each child was in college but not after each turned twenty-two or got married. This conclusion was based in part on a verified pleading filed by defendant in a prior proceeding to modify child support in which he alleged the intent of the parties was “that if a child was enrolled in and attending college then defendant would pay child support for that child until that child graduated from college or attained the age of twenty-two years.”

We affirm the decision of the trial court. We find defendant’s construction illogical, and will not allow him to take a position contrary to one he asserted in an earlier proceeding. “[H]is mouth is shut, and he shall not say, that is not true which he had before in a solemn manner asserted to be the truth.” Crawford v. Crawford, 214 N.C. 614, 618, 200 S.E. 421, 423 (1939) (quoting Armfield v. Moore, 44 N.C. 157, 161 (1852)).

Affirmed.

Panel Consisting of:

Judges EAGLES, LEWIS and JOHN

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PER CURIAM

The issue in this appeal is the proper construction of a paragraph found in a separation agreement and property settlement entered into by the parties on 5 November 1992 and incorporated into judgment entered 12 November 1992. The paragraph provides:

[639]*639Husband shall pay to wife for the maintenance and support of his children the sum of $1,000.00 per month, said sum to be paid on or before the first day of each calendar month beginning November 1, 1992, and continuing thereafter in a like amount until each child marries, otherwise becomes emancipated, finishes college, or attains the age .of twenty-two (22) years, whichever shall first occur, (emphasis added)

Defendant argues the italicized words terminate his support duty when each child reaches the age of 18. The trial court rejected this argument and found the phrase to be ambiguous. The court then concluded that it was the intent of the parties that the support continue as long as each child was in college but not after each turned twenty-two or got married. This conclusion was based in part on a verified pleading filed by defendant in a prior proceeding to modify child support in which he alleged the intent of the parties was “that if a child was enrolled in and attending college then defendant would pay child support for that child until that child graduated from college or attained the age of twenty-two years.”

We affirm the decision of the trial court. We find defendant’s construction illogical, and will not allow him to take a position contrary to one he asserted in an earlier proceeding. “[H]is mouth is shut, and he shall not say, that is not true which he had before in a solemn manner asserted to be the truth.” Crawford v. Crawford, 214 N.C. 614, 618, 200 S.E. 421, 423 (1939) (quoting Armfield v. Moore, 44 N.C. 157, 161 (1852)).

Affirmed.

Panel Consisting of:

Judges EAGLES, LEWIS and JOHN

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463 S.E.2d 552, 120 N.C. App. 638, 1995 N.C. App. LEXIS 900, Counsel Stack Legal Research, https://law.counselstack.com/opinion/perkins-v-perkins-ncctapp-1995.

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