Hester v. Hester, 595
| Decision Date | 16 December 1953 |
| Docket Number | No. 595,595 |
| Citation | 79 S.E.2d 248,239 N.C. 97 |
| Parties | HESTER, v. HESTER. |
| Court | North Carolina Supreme Court |
R. L. Smith & Son, Albemarle, for plaintiff appellant.
J. C. Sedberry, Charlotte, for defendant appellee.
The original action instituted by plaintiff in Stanly County in 1948 was for alimony without divorce. In this action, on plaintiff's motion, an order was entered by Judge Phillips making her an allowance pendente lite. In compliance with this order the defendant made four monthly payments and has paid nothing since December 1948. No other proceeding was had in that action. In 1953 plaintiff asked leave to file an amendment to her original complaint, and had notice served on the defendant to show cause before Judge Rousseau in Anson County why he should not be required to comply with the order of 1948 and why alimony should not be made permanent.
The final determination of the original Stanly County action was not before Judge Rousseau in chambers in Anson County. He had no jurisdiction to make an allowance of permanent alimony. The only matter he could have heard was the plaintiff's motion to require defendant to pay alimony pendente lite under the original order of 1948. Being of opinion that he was without jurisdiction to grant alimony in the cause, Judge Rousseau dismissed the plaintiff's motion. It seems plaintiff did not apply to Judge Rousseau for an order making her a new allowance pendente lite on the facts set up in her amended pleading, but asked for the re-activation of the order of 1948, and for an order granting her permanent alimony.
There is no allegation or proof that the reconciliation and resumption of marital relations in 1949 or 1950 was upon condition. No question of condonation or recrimination is raised. Plaintiff alleges she was induced to return to the home and live with the defendant as his wife. Certainly, during the period of such resumption, necessity for alimony of any kind ceased.
The plaintiff complains that the judge below declined to take action on her motion and contends she was entitled to an order requiring continuance of the payments of alimony pendente lite prescribed in the order of 1948. The judge correctly ruled that in chambers in another county he was without jurisdiction to render judgment for permanent alimony in the action at issue in the Superior Court of Stanly.
'Alimony, which signifies literally nourishment or sustenance, is the allowance which a husband may be compelled to pay his wife for her maintenance while she is living apart from him or has been divorced.' 17 A.J. 405. Black's Law Dictionary defines alimony as 'an allowance out of the husband's estate, made for the support of the wife when living separate from him.'
The rule is that a reconciliation between husband and wife who have been living apart terminates a divorce action, and an allowance for temporary alimony falls with it. 17 A.J. 435; Yoder v. Yoder, 105 Wash. 491, 178 P. 474, 3 A.L.R. 1109.
In Rogers v. Vines, 28 N.C. 293, Chief Justice Ruffin used this language: ' This definition was quoted with approval in Taylor v. Taylor, 93 N.C. 418. And in Crews v. Crews, 175 N.C. 168, 95 S.E. 149, 152, this Court s...
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Thomas v. Thomas
...Brown v. Brown, 210 Ga. 233, 78 S.E.2d 516, 518 (1953); Moody v. Moody, 227 La. 134, 78 So.2d 536, 537 (1955); Hester v. Hester, 239 N.C. 97, 100, 79 S.E.2d 248 (1953); O'Hara v. O'Hara, 46 N.C.App. 819, 266 S.E.2d 59 (1980); Tiffin v. Tiffin, 2 Binn. 202 (Pa.1809); M'Karracher v. M'Karrach......
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Thomas v. Thomas
...Canadian province), in the few instances where the question has arisen, have taken differing views. See, for example, Hester v. Hester, 239 N.C. 97, 79 S.E.2d 248 (1953), O'Hara v. O'Hara, 266 S.E.2d 59 (N.C.App.1980), Lund v. Lund, 6 Utah 2d 425, 315 P.2d 856 (1957), and Patterson v. Patte......
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Sauls, In re, 538
...would destroy the status which, in the beginning, gave the court jurisdiction to issue the writ under G.S. § 17--39. See Hester v. Hester, 239 N.C. 97, 79 S.E.2d 248. We need not, however, pick out way through the procedural quicksands to reach that problem because, In limine, we are here c......
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Baumann–chacon v. Baumann
...of postseparation support is to ensure “subsistence for the [dependent spouse] during the period of separation.” Hester v. Hester, 239 N.C. 97, 100, 79 S.E.2d 248, 251 (1953) (citing Anderson v. Anderson, 183 N.C. 139, 110 S.E. 863 (1922)). As a result, whenever there is a “reconciliation a......