Feldman v. Feldman
| Decision Date | 06 January 1953 |
| Docket Number | No. 674,674 |
| Citation | 73 S.E.2d 865,236 N.C. 731 |
| Court | North Carolina Supreme Court |
| Parties | FELDMAN, v. FELDMAN. |
Hayes, Hatfield & McClain, WinstonSalem, for plaintiff_appellee.
Jordan & Wright and Perry C. Henson, Greensboro, for defendant-appellant.
Allowance of alimony payable after a decree of divorce a vinculo was unknown to the common law. Duffy v. Duffy, 120 N.C. 346, 27 S.E. 28; Lockman v. Lockman, 220 N.C. 95, 16 S.E.2d 670; Gavit Black Com., pp. 188, 189.
'At common law, where a divorce a vinculo matrimonii was granted, no allowance for the future support of the wife was given, and we have no statute in this state allowing it.' Duffy v. Duffy, supra; Crews v. Crews, 175 N.C. 168, 95 S.E. 149; Hobbs v. Hobbs, 218 N.C. 468, 11 S.E.2d 311; Stanley v. Stanley, 226 N.C. 129, 37 S.E.2d 118; Annotation 166 A.L.R. 1004.
As the right did not exist at common law, the right of the wife to support after divorce a vinculo is subject to legislative regulation. Only such rights to alimony exist as are provided by statute, Cooke v. Cooke, 164 N.C. 272, 80 S.E. 178, 49 L.R.A.,N.S., 1034, and the General Assembly of North Carolina, except as hereinafter noted, has never enacted any statute permitting the granting of alimony after the dissolution of the bonds of matrimony. Since the decree dissolves the status, it terminates all the incidents of marriage, including the right of the wife to support and maintenance.
This principle was first put into ststutory form by the General Assembly of this State in 1871. Ch. 193, sec. 43, of the Public Laws of 1871-72 provides that 'After a judgment of divorce from the bonds of matrimony, all rights arising out of the marriage shall cease and determine, and either party may marry again: Provided * * *' (Proviso relates to children). This statute has been enacted and re-enacted in every succeeding codification of our law and is now G.S. § 50-11.
The only modification thereof in respect to alimony is contained in ch. 204, P.L. 1919. Section 1 thereof is as follows:
This section of that act, as amended, is brought forward as a proviso in G.S. § 50-11.
It is not contended that the consent order was entered prior to the institution of this action. Instead, the record discloses and it is conceded that it was entered on defendant's cross action filed in this cause. Hence it is without statutory authorization insofar as it requires plaintiff to pay alimony after the entry of the final decree of divorce.
It is true that when the order was signed the court had jurisdiction of the parties and of the subject matter of the action. Even so, he had no jurisdiction to enter an order requiring plaintiff to...
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