JOHNNY BRANTLEY, Plaintiff v. DARRELL CROCKET WATSON, CO-EXECUTOR OF THE ESTATE OF RACHEL A. BRANTLEY and WILLIAM WOODWARD WEBB, CO-EXECUTOR OF THE ESTATE OF RACHEL A. BRANTLEY, Defendants, 115 N.C. App. 393

ARNOLD, Chief Judge. Judgment on the pleadings may be granted when the movant establishes that no material issues of fact exist and that the movant is entitled to judgment as a matter of law. Minor v. Minor, 70 N.C. App. 76, 318 S.E.2d 865, disc. review denied, 312 N.C. 495, 322 S.E.2d 558 (1984). Defendants admitted all the material factual allegations in the complaint, and no unresolved factual issues are otherwise raised by the pleadings. In the absence of any factual issues or defenses raised in defendants’ answer, the application of N.C. Gen.

Stat. §§ 28A-15-6 and 28A-15-9 was clear, and the judge’s decision was one of law.

G.S. § 28A-15-6 provides that: Upon the determination by the United States Treasury Department of an overpayment of income tax by a married couple filing a joint federal income tax return, one of whom has died since the filing of such return or where a joint federal income tax return is filed on behalf of a husband and wife, one of whom has died prior to the filing of the return, any refund of the tax by reason of such overpayment, if not in excess of five hundred dollars ($500.00), shall be the sole and separate property of the surviving spouse.

Regarding the amount of a refund in excess of $500.00, G.S. § 28A-15-9 provides that “one half of any additional sums shall be the sole and separate property of the surviving spouse.” The funds in question cannot be considered anything other than an income tax refund. Plaintiff and his wife’s estate filed a joint income tax return, defendants mailed the $25,000.00 check to the Internal Revenue Service to be applied in advance toward income tax liability, and the Internal Revenue Service applied the funds toward the parties’ joint income tax liability.

Therefore, the funds in question fall squarely under the control of G.S. §§ 28A-15-6 and 28A-15-9. The trial judge divided the funds precisely by the terms of those statutes, and no error resulted. This panel expresses no opinion on whether or not the result was equitable and fair. We reject defendants’ argument that the trial judge erred by not considering affidavits filed by defendants. We reviewed the affidavits, and, even if considered, they do not affect our decision on.the disposition of the funds pursuant to G.S. §§ 28A-15-6 and 28A-15-9.

We do not consider defendant’s claim of unjust enrichment because it was not raised by the pleadings or addressed by the trial judge. Plaintiff appeals and argues that the trial judge erred in not allowing his request for attorney fees pursuant to N.C. Gen. Stat. § 6-21(2) (1986). G.S. § 6-21(2) permits atrial judge to award attorney fees in a caveat proceeding, in a proceeding to construe a will, or in a proceeding to fix the rights of a party under a will. Because this case does not fall into any of these categories, plaintiffs reliance on G.S. § 6-21(2) is misplaced. The trial court’s order is affirmed.

Affirmed. Judges COZORT and LEWIS concur.