Berry v. Berry
| Decision Date | 22 March 1939 |
| Docket Number | No. 34.,34. |
| Citation | 215 N.C. 339,1 S.E.2d 871 |
| Court | North Carolina Supreme Court |
| Parties | BERRY . v. BERRY. |
Appeal from Superior Court, Surry County; Bivens, Judge.
Proceeding by Annie Lee Berry against Earl Berry, wherein an order was entered requiring defendant to pay alimony and an attorney's fee to plaintiff. Application was made for an order requiring defendant to show cause why he should not be attached for contempt in failing to comply with such order. From a ruling adjudg-ing defendant in contempt, defendant appeals.
Error and remanded.
Motion in the cause to attach defendant for contempt in failing to pay alimony and counsel fees as ordered.
At the September Term, 1938, Surry Superior Court, an order was entered in this cause requiring the defendant to pay to the plaintiff the sum of $20 per month, commencing October 15, 1938, as alimony, and $25 on attorney's fees.
Thereafter, application was made to the Resident Judge of the District, at chambers, for an order requiring the defendant to show cause why he should not be attached for contempt in failing to comply with said order.
Upon the hearing before the Resident Judge, at chambers, the defendant undertook to purge himself of any contempt, and pleaded his inability to pay. However, "the court finds as a fact that the defendant has no real or personal property, but that he has earned the sum of $140.00 since the original order was signed and that he has not paid to his wife, the plaintiff in this cause, any sum whatsover and has failed to comply with the judgment of Judge Clement."
Whereupon, the defendant was adjudged to be in contempt, and it was ordered "that he be confined in the common jail of Surry County until he complies with said judgment."
From this ruling, which bears no date, the defendant appeals, assigning errors.
Barker & Hampton, of Elkin, for appellant.
No counsel appearing for appellee.
It does not appear within what time "the defendant has earned $140.00 since the original order was signed", as the judgment bears no date, and there is no finding on the defendant's plea of disavowal. In re Odum, 133 N.C. 250, 45 S.E. 569. Hence, under authority of Vaughan v. Vaughan, 213 N.C. 189, 195 S.E. 351, it would seem that the record is wanting in sufficiency to support a judgment for contempt or "willful disobedience" of the court's order. C.S. § 978; West v. West, 199 N.C. 12, 153 S.E. 600; State v. Clark, 207 N.C. 657, 178 S.E. 119.
The case is unlike Dyer v. Dyer, 213...
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Yow v. Yow
...contempt must be set aside. Lamm v. Lamm, 229 N.C. 248, 49 S.E.2d 403; Smithwick v. Smithwick, 218 N.C. 503, 11 S.E.2d 455; Berry v. Berry, 215 N.C. 339, 1 S.E.2d 871; Vaughan v. Vaughan, 213 N.C. 189, 195 S.E. 351; West v. West, 199 N.C. 12, 153 S.E. Judge Hobgood made an allowance of $250......
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Smith v. Smith
...must be set aside,' citing Lamm v. Lamm, 229 N.C. 248, 49 S.E. 2d 403; Smithwick v. Smithwick, 218 N.C. 503, 11 S.E.2d 455; Berry v. Berry, 215 N.C. 339, 1 S.E.2d 871; Vaughan v. Vaughan, 213 N.C. 189, 195 S.E. 351; West v. West, 199 N.C. 12, 153 S.E. These cases sustain the same propositio......
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Lamm v. Lamm
... ... imprisonment for contempt must be set aside. Smithwick v ... Smithwick, 218 N.C. 503, 11 S.E.2d 455; Berry v ... Berry, 215 N.C. 339, 1 S.E.2d 871; Vaughan v ... Vaughan, 213 N.C. 189, 195 S.E. 351; West v. West, ... ...
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Smithwick v. Smithwick, 525.
...to support a judgment for contempt or "willful disobedience" of the court order as is requisite under C.S. § 978(4). Berry v. Berry, 215 N.C. 339, 1 S.E.2d 871. Error, and ...