Sutton v. Sutton

Court of Appeals of North Carolina

Sutton v. Sutton

289 S.E.2d 618, 56 N.C. App. 740, 1982 N.C. App. LEXIS 2482

CourtCourt of Appeals of North Carolina

DecidedApril 6, 1982

Docket8120DC727

StatusPublished

Cited by4 cases

This text of 289 S.E.2d 618 (Sutton v. Sutton) 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

Sutton v. Sutton, 289 S.E.2d 618, 56 N.C. App. 740, 1982 N.C. App. LEXIS 2482 (N.C. Ct. App. 1982).

Pincite

Opinion

ARNOLD, Judge.

Defendant’s sole argument on appeal is that the trial court erred in denying his motion for a paternity test. Defendant contends that the 1976 divorce judgment is not determinative of the issue of paternity because the court made no findings of fact concerning that issue. It is true that no express finding on this issue *741 was set forth in the divorce order. However, plaintiff raised the issue in her complaint and the court impliedly addressed it by granting defendant visitation privileges and ordering him to pay child support. Moreover, defendant failed to appear or to raise his defense in the original action although he was properly served with process. As this Court stated in Williams v. Holland, 39 N.C. App. 141, 148, 249 S.E. 2d 821, 826 (1978), “[i]t is ,a well established principle in North Carolina . . . that a valid judgment is binding on the parties to it ‘as to all issuable matters contained in the pleadings, including all material and relevant matters within the scope of the pleadings, which the parties, in the exercise of due diligence, could and should have brought forward.’ Bruton v. Light Co., 217 N.C. 1, 7, 6 S.E. 2d 822, 826 (1940).”

The trial court correctly held that defendant’s failure to deny paternity in the original action between the parties, wherein the issue was duly raised in the complaint, operates as a bar to the defense in the subsequent action between the same parties.

Affirmed.

Judges CLARK and Webb concur.

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ARNOLD, Judge.

Defendant’s sole argument on appeal is that the trial court erred in denying his motion for a paternity test. Defendant contends that the 1976 divorce judgment is not determinative of the issue of paternity because the court made no findings of fact concerning that issue. It is true that no express finding on this issue *741 was set forth in the divorce order. However, plaintiff raised the issue in her complaint and the court impliedly addressed it by granting defendant visitation privileges and ordering him to pay child support. Moreover, defendant failed to appear or to raise his defense in the original action although he was properly served with process. As this Court stated in Williams v. Holland, 39 N.C. App. 141, 148, 249 S.E. 2d 821, 826 (1978), “[i]t is ,a well established principle in North Carolina . . . that a valid judgment is binding on the parties to it ‘as to all issuable matters contained in the pleadings, including all material and relevant matters within the scope of the pleadings, which the parties, in the exercise of due diligence, could and should have brought forward.’ Bruton v. Light Co., 217 N.C. 1, 7, 6 S.E. 2d 822, 826 (1940).”

The trial court correctly held that defendant’s failure to deny paternity in the original action between the parties, wherein the issue was duly raised in the complaint, operates as a bar to the defense in the subsequent action between the same parties.

Affirmed.

Judges CLARK and Webb concur.

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Bluebook (online)

289 S.E.2d 618, 56 N.C. App. 740, 1982 N.C. App. LEXIS 2482, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sutton-v-sutton-ncctapp-1982.

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