Edmundson v. Edmundson

• Decision Date: 04 November 1942
• Docket Number: 239.
• Parties: EDMUNDSON v. EDMUNDSON.
• Court: North Carolina Supreme Court

22 S.E.2d 576

222 N.C. 181

EDMUNDSON v. EDMUNDSON.

No. 239.

Supreme Court of North Carolina

November 4, 1942

Civil action for divorce from bed and board and for custody of children of the marriage, instituted in Superior Court of Wayne County on September 2, 1939. No pleadings were filed but a consent judgment was entered. For alleged violation of terms of this judgment, citation for contempt was issued by Harris, judge holding courts of the Fourth Judicial District returnable at court house in Lillington, North Carolina, on Tuesday, May 5, during May Civil Term, 1942, of Superior Court of Harnett County, and, by consent of parties, heard by Johnson, Jr., special judge presiding, under commission duly issued in lieu of Harris, the regular judge. This appeal is from judgment on such hearing.

The record discloses these facts:

(1) After summons was issued and the time for filing complaint was extended to September 22, 1939, a judgment, by consent of plaintiff, J. Ray Edmundson, and his counsel, Paul B Edmundson and J. Faison Thomson, and of defendant, Lillian C Edmundson, and her counsel, McLean & Stacy, evidenced by their several signatures thereto, was signed on September 29, 1939, at chambers in Kinston, North Carolina, by Williams, judge resident of the Fourth Judicial District, and ordered to be recorded in the minute book in the office of the Clerk of the Superior Court of Wayne County. In this judgment, after finding facts, inter alia that plaintiff and defendant were married on March 19, 1928, and lived together as man and wife until June 9, 1939, during which period of time defendant advanced certain moneys to plaintiff which he used in his business and for which he recognized his obligation to repay, that to the union between plaintiff and defendant two children were born, that plaintiff and defendant, being unable to live together agreeably as husband and wife, have lived separate and apart since June 9, 1939, and that differences and disagreements existing between them render it reasonably necessary to their health and happiness that they continue to live separate and apart, it is adjudged and decreed, among other things, "(a) that plaintiff and defendant shall live separate and apart from each other", (b) *** "(c) In lieu of alimony, or other marital rights or obligations, plaintiff shall pay to defendant the sum of One Hundred Dollars ($100) per month until he has paid the total sum of Sixty-nine Hundred Eleven and No/100 Dollars ($6911), no part of which said sum is to bear interest, except any installment due hereunder after its due date shall bear interest thereon. Plaintiff shall also pay to F. Ertel Carlyle, trustee, the sum of Fifty Dollars ($50.00) per month until the total sum of Twenty-five Hundred Dollars ($2500) has been paid said trustee, no part of which said sum is to bear interest, except any installment due hereunder after its due date shall bear interest thereon; the purpose of said payments to F. Ertel Carlyle, trustee, being to liquidate the principal of an obligation due by plaintiff and defendant to the Mills Home and secured by a deed of trust upon the home of the defendant in Lumberton, N. C., said payments to be made on the 15th day of September, 1939, and on the 15th of each month thereafter until paid in full. The money payments provided herein shall be more than a simple judgment for debt. They shall be as effectively binding upon plaintiff as if rendered under and by virtue of the authority of Section 1667, Consolidated Statutes of North Carolina, and the failure of plaintiff to make the payments, as required by this judgment, shall, upon proper cause shown to the court, subject him to such penalties as may be required by the court, in case of contempt of its orders.

"(d) This finding of fact and judgment rendered herein shall not operate as a bar to the right of either of the parties to this action to institute suit for absolute divorce upon the grounds of two years separation, if either of the parties to this action shall so elect after two years separation of the parties.

"(e) It is further, by consent, considered, ordered and adjudged that the said J. Ray Edmundson shall have the right to convey, without the joinder of his said wife, Lillian C. Edmundson, any realty now owned and possessed by the said J. Ray Edmundson of which the said J. Ray Edmundson may hereafter become seized and possessed of; and the said Lillian C. Edmundson shall have the right to convey any realty which she now owns or which she might hereafter become seized and possessed of, without the joinder and consent of the said J. Ray Edmundson; this consent judgment being a bar to any and all right of dower to which the said Lillian C. Edmundson is or might become entitled to, in any lands owned and possessed by the said J. Ray Edmundson, or in any lands to which he might hereafter own and possess; and this consent judgment shall be and is a bar to any right of curtesy to which the said J. Ray Edmundson is entitled or might hereafter become entitled to in any lands owned and possessed by the said Lillian C. Edmundson."

It is further ordered that, "This judgment shall be recorded in the Minute Book in the office of the Clerk of the Superior Court of Wayne County, North Carolina, but shall not be indexed and cross-indexed in said office, nor shall the said judgment be a lien upon any lands owned and possessed by the said J. Ray Edmundson at this time or to which he might hereafter be seized and possessed of."

(2) Thereafter, on March 20, 1942, plaintiff through his attorneys, J. Faison Thomson and Paul B. Edmundson, gave notice to defendant that motion "to modify the judgment for alimony heretofore entered in this cause", would be made before Grady, S. J., presiding at March Special Term, 1942, of Superior Court of Wayne County, at time and placed named, which notice, with copy of the motion, was served upon defendant by the sheriff of Robeson County on March 24, 1942. In this motion it is stated that plaintiff's income has been reduced from $400 per month, at the time of signing said judgment, to $168.28 per month. No hearing has been had on this motion.

(3) The defendant, answering, by affidavit, the allegations set out in the motion of plaintiff referred to in the last preceding paragraph, admits the allegations that at the time of signing said judgment, the plaintiff had an income from his work of approximately $400, but denies other material allegations, and further moved the court to adjudge plaintiff in contempt of court for his willful failure to comply with terms of said judgment.

(4) Thereafter, on April 25, 1942, upon said affidavit of defendant, Harris, J., holding the courts of the Fourth Judicial District, cited plaintiff to appear before him "at the court house in Lillington, N. C., on Tuesday, May 5th, at 12 o'clock M., to show cause, if any he may have, why he should not be adjudged in contempt of court for violation of the judgment of the court entered by his Honor, Clawson L. Williams, resident judge of the Fourth Judicial District, in the above entitled cause on 29 September, 1939."

(5) Thereafter, as stipulated of record, the parties, through their respective attorneys, agreed to submit the citation for contempt in this cause to Johnson, Jr., Special Judge, who was duly commissioned to hold and preside over the May Civil Term 1942, of Superior Court of Harnett County, North Carolina, in lieu of Harris, the regular judge holding the courts of the Fourth Judicial District, and that the same might be heard out of term time, out of the county and out of the district.

(6) Thereafter, Johnson, Jr., Special Judge, of the Superior Court, entered judgment in which it is recited that "This cause came on for hearing before the undersigned special judge presiding at the May, 1942, Civil Term of the Superior Court of Harnett County, upon the return of the citation issued by Honorable W. C. Harris, Judge presiding over the courts of the Fourth Judicial District, commanding plaintiff, J. Ray Edundson, to show cause, if any he may have, why he should not be adjudged in contempt of court for his alleged willful violation of the terms of the judgment entered in this cause by Honorable Clawson L. Williams, Resident judge of the Fourth Judicial District, on 29 September, 1939"; that "it was agreed by counsel representing plaintiff and defendant that the hearing upon the citation in this cause should be heard upon affidavits and briefs out of term time, out of the county and out of the district by the undersigned Special Judge of the Superior Court"; and that, after considering the affidavits and briefs filed by and in behalf of the parties respectively, the court finds facts, substantially as hereinbefore stated, and the further specific fact that plaintiff, after making payments in compliance with terms of the said judgment of Williams, J., for twenty eight months,--the last payment being for the month of December, 1941,-- had willfully refused to pay any further amounts as he had therein agreed "unless defendant will accept $1100.00 in cash in full settlement of the money provisions of the judgment". Under these facts it is adjudged by Johnson, Jr., Special Judge, (1) "that the willful refusal of plaintiff since December, 1941, to make any further payments on the judgment entered by Williams, J., in this cause on September 29, 1939 (except the said conditional offer of $1,100.00), is a direct contempt of this court and its orders, amounting to continuous, willful disobedience of the terms of the judgment of Williams, J., since January, 1942," and (2) that plaintiff, "J. Ray Edmundson be confined in the common jail of Wayne County, North Carolina, until he has made payments required under said...