Sutton v. Sutton

Annotate this Case

289 S.E.2d 618 (1982)

Sarobia SUTTON v. Kenneth W. SUTTON.

No. 8120DC727.

Court of Appeals of North Carolina.

April 6, 1982.

*619 Perry & Bundy by H. Ligon Bundy, Monroe, for plaintiff-appellee.

Charles D. Humphries, Monroe, for defendant-appellant.

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 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.

CLARK and WEBB, JJ., concur.