¶1concurring in part and dissenting in part, with separate opinion.
¶2I concur with the majority’s opinion insofar as it (1) dismisses the plaintiff’s appeal of the trial court’s denial of plaintiff’s motion for summary judgment, and (2) holds that the trial court erred by dismissing plaintiff’s contractual alimony action on the ground that plaintiff failed to file an alimony claim before the divorce was granted in the previous action. However, on the issue of whether the trial court erred by dismissing plaintiff’s action on the ground that defendant’s bankruptcy discharged his liability for alimony payments, I cannot agree with all the issues discussed and opinions expressed by the majority.
¶3First, the majority acknowledges that jurisdiction has not been raised. Since the issue of jurisdiction has not been raised and has no bearing on our decision, I find any discussion of jurisdiction inappropriate.
¶4Second, the majority orders that the case be remanded to the trial court for an evidentiary hearing to determine the parties’ intent in signing the Separation Agreement dated 2 April 1987. I strongly disagree with that result.
¶5The defendant filed a motion to dismiss, without filing an answer. The issue of the parties’ intent in signing the Agreement was not raised in any pleading, order, or brief. Thus, the majority errs in raising that issue. The only issue before us on appeal is straightforward and simple: does defendant’s bankruptcy automatically discharge his obligation to pay contractual alimony? The answer is a simple “No,” under 11 U.S.C.S. § 523(a)(5) (1978 & Cum. Su'pp. *291990). The majority’s discussion of intent and all the related matters is inappropriate and potentially confusing.
¶6This Court should do no more than reverse the trial court’s order of dismissal. When the case returns to trial court for further actions, the issues discussed by the majority may or may not be raised.
¶7I vote simply to reverse.