Pettus v. Pettus

Court of Appeals of North Carolina

Pettus v. Pettus

302 S.E.2d 261, 62 N.C. App. 141, 1983 N.C. App. LEXIS 2802

CourtCourt of Appeals of North Carolina

DecidedMay 3, 1983

DocketNo. 8221DC559

StatusPublished

This text of 302 S.E.2d 261 (Pettus v. Pettus) 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

Pettus v. Pettus, 302 S.E.2d 261, 62 N.C. App. 141, 1983 N.C. App. LEXIS 2802 (N.C. Ct. App. 1983).

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Opinion

HEDRICK, Judge.

The only question presented by this appeal is whether the trial court erred in denying the defendant’s motion, under N.C. Gen. Stat. § 1A-1, Rule 60(b), to set aside the judgment of absolute divorce entered on 15 February 1982. The defendant argues the Court was without authority to enter a judgment of absolute divorce because she at all times demanded a trial by jury, pursuant to N.C. Gen. Stat. § 1A-1, Rules 38 and 39, and that she had not waived at any time her right to trial by jury. We agree.

In her answer to plaintiffs complaint seeking a divorce based on one year’s separation, the defendant demanded a trial by jury. On 15 February 1982 Judge Keiger entered a judgment of absolute divorce without affording defendant a trial by jury. On 17 February 1982 the defendant moved, pursuant to N.C. Gen. Stat. § 1A-1, Rule 60(b), to have the judgment of absolute divorce set aside. Judge Harrill denied this motion on 12 March 1982, and the defendant appealed.

Our decision is controlled by N.C. Gen. Stat. § 50-10 and Edwards v. Edwards, 42 N.C. App. 301, 256 S.E. 2d 728 (1979). The [142]*142judgment must be vacated and the cause will be remanded to the District Court for a trial by jury.

Vacated and remanded.

Chief Judge VAUGHN and Judge Arnold concur.

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HEDRICK, Judge.

The only question presented by this appeal is whether the trial court erred in denying the defendant’s motion, under N.C. Gen. Stat. § 1A-1, Rule 60(b), to set aside the judgment of absolute divorce entered on 15 February 1982. The defendant argues the Court was without authority to enter a judgment of absolute divorce because she at all times demanded a trial by jury, pursuant to N.C. Gen. Stat. § 1A-1, Rules 38 and 39, and that she had not waived at any time her right to trial by jury. We agree.

In her answer to plaintiffs complaint seeking a divorce based on one year’s separation, the defendant demanded a trial by jury. On 15 February 1982 Judge Keiger entered a judgment of absolute divorce without affording defendant a trial by jury. On 17 February 1982 the defendant moved, pursuant to N.C. Gen. Stat. § 1A-1, Rule 60(b), to have the judgment of absolute divorce set aside. Judge Harrill denied this motion on 12 March 1982, and the defendant appealed.

Our decision is controlled by N.C. Gen. Stat. § 50-10 and Edwards v. Edwards, 42 N.C. App. 301, 256 S.E. 2d 728 (1979). The [142]*142judgment must be vacated and the cause will be remanded to the District Court for a trial by jury.

Vacated and remanded.

Chief Judge VAUGHN and Judge Arnold concur.

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Bluebook (online)

302 S.E.2d 261, 62 N.C. App. 141, 1983 N.C. App. LEXIS 2802, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pettus-v-pettus-ncctapp-1983.

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