subject: North Carolina Divorce Jury Trial Counterclaim Lawyers Attorneys [print this page] CATHY ANN ARNEY vCATHY ANN ARNEY v. BILLY RAY ARNEY
COURT OF APPEALS OF NORTH CAROLINA
Plaintiff filed her complaint on 2 December 1983 seeking an absolute divorce based on a year's separation, and seeking custody and support of the parties' minor child. On 28 December 1983 the defendant filed an "Answer and Counterclaim and Notice of Hearing" (hereinafter "answer") in which he admitted the facts alleged as the basis for the absolute divorce, realleged these same facts in his own request for an absolute divorce and counterclaimed for custody and child support.
This pleading did not contain a demand for a jury trial. On the day scheduled for hearing on plaintiff's action for absolute divorce, 9 February 1984, defendant filed and served a document demanding a jury trial on all issues. The trial court denied defendant's demand for jury trial and granted plaintiff an absolute divorce. Defendant husband appealed a judgment of absolute divorce from the Catawba County District Court (North Carolina) in favor of plaintiff wife.
ISSUES:
Did the trial court err when it ruled that defendant had waived his right to a jury trial on the issue of absolute divorce?
DISCUSSION:
Rule 38(b) of the North Carolina Rules of Civil Procedure provides in part that "[a]ny party may demand a trial by jury of any issue triable of right by a jury by serving upon the other parties a demand therefor in writing at any time after commencement of the action and not later than 10 days after the service of the last pleading directed to such issue." A demand for a jury trial made within 10 days of a reply to a counterclaim that does not necessarily cover issues raised in the complaint and answer is not timely made, unless the counterclaim involved arises out of the subject matter of the complaint and is therefore compulsory. Defendant's answer is directed to the issue of absolute divorce, admitting as it does all allegations relevant to that issue. Custody and child support are manifestly not in the nature of compulsory counterclaims to an action for absolute divorce.The denial of a belated demand for a jury trial is within the discretion of the trial court.The judgment granting plaintiff an absolute divorce is without error.
JUDGMENT:
The court affirmed the judgment of absolute divorce against the husband.
Disclaimer:
These summaries are provided by the SRIS Law Group. They represent the firm's unofficial views of the Justices' opinions. The original opinions should be consulted for their authoritative content
North Carolina Divorce Jury Trial Counterclaim Lawyers Attorneys
