DANNY RAY COLEMAN and SANDRA J. COLEMAN v. NORMAN F. SHIRLEN, JR. and wife, JESSIE SHIRLEN, NORMAN SHIRLEN, SR., and wife, REBA SHIRLEN and RONALD ALBERT SHIRLEN, 53 N.C. App. 573

Summary

The custodial parents filed suit alleging that defendants were involved in a civil conspiracy to abduct the custodial parents' child, which the parents had custody of pursuant to a separation agreement. Defendants filed a motion to dismiss, which was treated as a motion for summary judgment since evidence extraneous to the complaint was considered by the trial court. The trial court granted this motion. On appeal, the court reversed. Defendants' answer and affidavit alleged and described a material breach by the custodial parents of the parties' separation agreement. However, the court determined that language in the separation agreement implied that the promises contained therein were intended to be mutually independent. Thus, the court held that defendants' assertion that the custodial parents' breach was material was controverted by the language of the contract since failure to perform an independent promise did not excuse nonperformance on the part of the other party. Accordingly, ...