Dyer v. Dyer
| Decision Date | 25 May 1938 |
| Docket Number | No. 678.,678. |
| Citation | 197 S.E. 157,213 N.C. 634 |
| Parties | DYER. v. DYER. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Guilford County; E. C. Bivens, Judge.
Proceeding by Edith Dyer against John W. Dyer wherein defendant sought his release from a jail to which he had been committed for refusing to pay alimony; Judgment refusing release, and defendant appeals.
Affirmed.
The defendant was committed to jail in a civil proceeding as for contempt, in disobeying the order of the Court by refusal to pay alimony. The order under which he is incarcerated does not describe any definite term of imprisonment but requires him to be confined in jail "until he has made the payments required under said judgment of April 27, 1934, and until he complies with the order of this court, or is otherwise discharged according to law."
At a subsequent time, after having remained in jail for thirty days, the defendant, conceiving himself to be improperly detained, filed a petition in the cause before Bivens, J., at February Term, 1938, of Guilford Superior Court, setting up his financial and physical inability to complywith the judgment, asking a modification thereof, and asking for his release, both upon the ground of his inability to pay and because of the fact, as contended by him, his original confinement was under an order made in excess of the constitutional and statutory authority of the court, in that the court could only have confined him in prison for a contempt in this connection for thirty days, which time had elapsed.
The petition was heard by Bivens, J., evidence was taken, and the judge refused to release defendant from prison, finding as a fact that his continued refusal to pay alimony was wilful. From this judgment, defendant appealed.
Gold, McAnally & Gold and C. N. Cox, all of High Point, for appellant.
R. T. Pickens, of High Point, for, appellee.
The defendant petitioned in the pending cause asking for a modification of the original order granting alimony and for his discharge because of his inability to pay it.
The defendant is bound by the facts adversely found by the court below upon competent evidence, and is not entitled to relief in this court. Mocksville Lodge v. Gibbs, 159 N.C. 66, 69, 74 S.E. 743; Bank of Zebulon v. Chamblee, 188 N.C. 417, 124 S.E. 741. His contention that the court was without power to make an order, the effect of which might be to confine him in jail for more than thirty days, is without merit. Green v. Green, 130 N.C. 578, 41 S.E. 784; Cromartie v. Commissioners, 85 N.C. 211.
[2, 3] Criminal contempt is a form...
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