Winborne v. Winborne

Court of Appeals of North Carolina

Winborne v. Winborne

282 S.E.2d 487, 54 N.C. App. 189, 1981 N.C. App. LEXIS 2786

CourtCourt of Appeals of North Carolina

DecidedOctober 6, 1981

DocketNo. 816SC209

StatusPublished

Cited by2 cases

This text of 282 S.E.2d 487 (Winborne v. Winborne) 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.

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Winborne v. Winborne, 282 S.E.2d 487, 54 N.C. App. 189, 1981 N.C. App. LEXIS 2786 (N.C. Ct. App. 1981).

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Opinion

WEBB, Judge.

We believe we are governed by Hepler v. Burnham, 24 N.C. App. 362, 210 S.E. 2d 509 (1975) in which case the parties entered into a separation agreement which provided:

“It is understood and agreed that the parties hereto, prior to separation, resided at 739 Fairfield Street, Burlington, North Carolina, and the party of the first party (sic), wife now resides in and shall be permitted to continue to reside in and at said location unmolested, and party of the second part does hereby lease said premises to party of the [190]*190first part, free of any rent, for her continued use of said premises as her home during the existence of this agreement.”

In Hepler this Court held that by executing the separation agreement, the petitioner had modified and limited his right to partition the property. We believe the agreement in the case sub judice is sufficiently similar to Hepler so that we would have to overrule that case to sustain the position of the appellee. In each case the gravamen of the separation agreement as to the disposition of the entirety property is that the respondent will be allowed to live in the house so long as he or she meets certain conditions. There is no dispute that the respondent has met the conditions in this case.

It was error for the court not to dismiss the petition. We reverse and remand for an order consistent with this opinion.

Reversed and remanded.

Judges Vaughn and Arnold concur.

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WEBB, Judge.

We believe we are governed by Hepler v. Burnham, 24 N.C. App. 362, 210 S.E. 2d 509 (1975) in which case the parties entered into a separation agreement which provided:

“It is understood and agreed that the parties hereto, prior to separation, resided at 739 Fairfield Street, Burlington, North Carolina, and the party of the first party (sic), wife now resides in and shall be permitted to continue to reside in and at said location unmolested, and party of the second part does hereby lease said premises to party of the [190]*190first part, free of any rent, for her continued use of said premises as her home during the existence of this agreement.”

In Hepler this Court held that by executing the separation agreement, the petitioner had modified and limited his right to partition the property. We believe the agreement in the case sub judice is sufficiently similar to Hepler so that we would have to overrule that case to sustain the position of the appellee. In each case the gravamen of the separation agreement as to the disposition of the entirety property is that the respondent will be allowed to live in the house so long as he or she meets certain conditions. There is no dispute that the respondent has met the conditions in this case.

It was error for the court not to dismiss the petition. We reverse and remand for an order consistent with this opinion.

Reversed and remanded.

Judges Vaughn and Arnold concur.

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282 S.E.2d 487, 54 N.C. App. 189, 1981 N.C. App. LEXIS 2786, Counsel Stack Legal Research, https://law.counselstack.com/opinion/winborne-v-winborne-ncctapp-1981.

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