Barber v. Barber

• Decision Date: 10 April 1940
• Docket Number: 100.
• Citation: 8 S.E.2d 204,217 N.C. 422
• Parties: BARBER v. BARBER.
• Court: North Carolina Supreme Court

8 S.E.2d 204

217 N.C. 422

BARBER v. BARBER.

No. 100.

Supreme Court of North Carolina

April 10, 1940

This is a motion in the cause made by plaintiff to recover of defendant arrearage of alimony allowed her in a former suit. In the year 1920, the plaintiff herein instituted a suit against the defendant in the Superior Court of Buncombe County asking for alimony, without divorce, for the maintenance and support of herself and three minor children born of the union of plaintiff and defendant. The defendant filed Answer and set up a cross-bill asking for divorce from plaintiff from bed and board. Upon the trial of the action the jury found in favor of the plaintiff and against the defendant. The issues at June Term, 1921, of the Superior Court, from which no appeal was taken, were as follows:

"1. Were the plaintiff and defendant married, as alleged? Ans Yes.

"2. Has the defendant, B. George Barber, separated himself from his wife and failed to provide her and the children of their marriage the necessary subsistence, according to his means and condition in life? Ans.: Yes.

"3. Did the plaintiff, Stella P. Barber, maliciously turn the defendant out of doors? Ans.: No.

"4. Has the plaintiff, Stella P. Barber, by cruel and barbarous treatment, endangered the life of the defendant? Ans No.

"5. Has the plaintiff, Stella P. Barber, offered such indignities to the person of the defendant, B. George Barber, as to render his condition intolerable and his life burdensome? Ans.: No.

"6. Has the plaintiff been a resident of the State of North Carolina for two years next preceding the commencement of this action? Ans.: Yes.

"7. Has the defendant been a resident of the State of North Carolina for two years next preceding the commencement of this action? Ans.: Yes."

Judgment was entered awarding the plaintiff the sum of $200.01 per month for herself and children, payable on or before the 4th day of each month.

On the 15th day of October (October Term, 1929, of the Superior Court of Buncombe County), a hearing was had before Thos. L. Johnson, Judge Presiding, and a judgment was entered modifying the original order and allowance and ordering the defendant to pay to plaintiff the sum of $160 a month for the support of herself and minor children. This amount of monthly allowance to plaintiff was entered after a full hearing upon the establishment of defendant of a so-called "trust estate" for the benefit of plaintiff and her children and an examination into the personal income of defendant derived from sources other than those constituting the so-called "trust estate".

On March 7, 1939, the plaintiff filed her present petition and motion in the cause, the petition being a long, detailed statement. She alleges that defendant instituted a suit against her for divorce in Fulton County, Ga., of which she had no notice and defendant had a final decree of divorce on April 1, 1929, and asked that this alleged divorce be declared a nullity. She alleges that the defendant defaulted in the payments as set out in the Judgment rendered at the October Term, 1929, the said default being a partial one from August 5, 1931, and a total default from the 5th day of August, 1932; that she recover of the defendant a judgment in the sum of $16,428.50, due her under the former judgment. That defendant is now a nonresident of the State. Defendant thereupon entered a special appearance and moved to dismiss the Petition of plaintiff for want of jurisdiction and lack of service upon defendant. The special appearance and motion to dismiss filed by the defendant, was overruled by His Honor, J. Will Pless, Jr., on the 24th day of March, 1939, and upon appeal to this Court, the said Judgment was affirmed in the case of Barber v. Barber, 216 N.C. 232, 4 S.E.2d 447.

Following the decision of this Court in Barber v. Barber, supra, the defendant herein then entered a general appearance and demurrer to the plaintiff's petition, which is as follows:

"1. The Court has no jurisdiction of the subject matter alleged in the petition, nor the relief sought thereby, for that: (a) As appears upon the face of the petition, plaintiff has attempted, by way of motion in the cause, to institute a personal action against the defendant sounding in debt for installments alleged to be past due and unpaid on a judgment, which matter cannot be heard on summary motion in the cause. (b) That as appears upon the face of the plaintiff's petition, plaintiff seeks to recover a new judgment against this defendant sounding in debt in the amount of $16,428.50, which relief cannot be had on motion in the cause; (c) Under Section 1667 of the Consolidated Statutes, Supp.1924, upon which this action is founded, the Court is without jurisdiction to enter judgment prayed for in the petition of plaintiff.

"2. The plaintiff fails to allege in said petition facts sufficient to entitle her to the relief sought therein with respect to the divorce decree alleged to have been rendered by the Court of Georgia, for that: (a) There are no facts alleged in said petition of plaintiff by which it appears that plaintiff's rights in this cause of action are in any way affected by said decree. (b) It appears upon the face of said petition that the validity of said decree, or decrees, is immaterial to this cause of action."

The matter was heard by His Honor, Wilson Warlick, at the January Term, 1940, of Buncombe County Superior Court, and Judgment entered as follows: "This cause coming on to be heard and being heard before the undersigned Judge at the Regular January Term, 1940, of the Superior Court of Buncombe County, upon the demurrer filed by the defendant to the petition of the plaintiff in this cause, and the Court being of the opinion and so holding that the petitioner cannot attack the validity of the Georgia divorce set out in the petition in this cause: Now, Therefore, it is Ordered that the demurrer filed by the defendant be, and the same hereby is, sustrained as to that portion of the petition and the prayer for relief which seeks to have the Georgia divorce described in the petition declared a nullity. It is Further Ordered that the demurrer be, and the same hereby is, overruled as to all matters set forth in said demurrer, with the exception of the Georgia divorce: And It Is Further Ordered that defendant shall have thirty days from the filing of this Order within which to file such pleadings as he may deem advisable. This the 19th day of January, 1940. Wilson Warlick, Judge Superior Court."

From this judgment, the defendant excepted, assigned error and appealed to the Supreme Court.

Jordan & Horner, of Asheville, for plaintiff.

Weaver & Miller, of Asheville, for defendant.

CLARKSON Justice.

The question involved: Has the Superior Court power, by motion in the original cause in a suit instituted for alimony without divorce, to determine the amount owed by the defendant to the plaintiff under the former judgments of the Court and to enter its decree judicially determining the amount so due and in arrears? We think so.

Where the pleadings for alimony without divorce (under Sec. 1567 Chap. 31 of Revisal, Laws of 1871-72, Chap. 193, Sec. 39) raises an issue of fact, it is for the jury to determine. Crews v. Crews, 175 N.C. 168, 95 S.E. 149. In the present action the issues of fact were settled by the jury at June Term, 1920, from which defendant took no appeal. The Court below, in its sound discretion, fixed the amount of alimony which defendant was to pay the plaintiff at $200.01 a month. No appeal was taken from this judgment. At October...