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 |
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:
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:
The matter was heard by His Honor, Wilson Warlick, at the January Term, 1940, of Buncombe County Superior Court, and Judgment entered as follows:
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.
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...
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