Kinross-Wright v. Kinross-Wright

• Decision Date: 19 March 1958
• Docket Number: KINROSS-WRIGHT,No. 668,668
• Citation: 102 S.E.2d 469,248 N.C. 1
• Parties: Berylv. Vernon
• Court: North Carolina Supreme Court

Page 469

102 S.E.2d 469

248 N.C. 1

Beryl KINROSS-WRIGHT v. Vernon KINROSS-WRIGHT.

No. 668.

Supreme court of North Carolina.

March 19, 1958

M. Michael Gordon, Houston, Tex., of the Texas Bar, Everett, Everett & Everett, Durham, for defendant appellant.

Dupree & Weaver, Raleigh, for plaintiff appellee.

WINBORNE, Chief Justice.

In the light of the facts found as hereinabove set forth, appellant, defendant, states in brief filed herein, as involved on this appeal, several questions, among which are:

1. 'Was it within the court's jurisdiction and discretion to entertain this litigation?' The answer is 'Yes'. See Barber v. Barber, 216 N.C. 232, 4 S.E.2d 447; Abernathy Land & Finance Co. v. First Security Trust Co., 213 N.C. 369, 196 S.E. 340; Federal Land Bank v. Davis, 215 N.C. 100, 1 S.E.2d 350; Barber v. Barber, 217 N.C. 422, 8 S.E.2d 204.

In the first Barber case, supra [216 N.C. 232, 4 S.E.2d 448], this Court said: 'An action in court is not ended by the rendition of a judgment, but in certain respects it is still pending until the judgment is satisfied * * *. Motion affecting the judgment but not the merits of the original controversy may be made in the cause * * *. This is particularly true of judgments allowing alimony in divorce actions and in actions for alimony without divorce, in which it may not be said that the judgment is in all respects final * * *. Such actions are always open for motions in the cause to determine the amount of arrearage and to obtain the remedies permitted by statute for the enforcement of the order for alimony. It was not required that a new summons be served upon the defendant. Notice of motion under the statute was sufficient. This notice was duly served.'

The Court continues: 'It appears from this record, as stated, that the defendant is in court and is subject to its jurisdiction, on notice, to hear and determine motions in the cause. Want of jurisdiction of the court in such matters may not be challenged by special appearance. The right of the plaintiff to make the motion may not be thus questioned.'

Indeed the second Barber case, supra, establishes that the proper procedure for recovering arrears in alimony payments is by motion in the cause. The Court there held that 'An order for the payment of alimony is res judicata between the parties, but is not a final judgment, since the court has the power, upon application of either party, to modify the orders for changed condition of the parties.'

Defendant, however, contends that the Barber cases are not controlling because the wife there was still a resident of North Carolina. This would not seem to make a difference. For once jurisdiction of a court attaches it exists for all time until the cause is fully and completely determined. See Michigan Trust Co. v. Ferry, 228 U.S. 346, 33 S.Ct. 550, 552, 57 L.Ed. 867, where Justice Holmes, writing for the Court, stated: 'Ordinarily jurisdiction over a person is based on the power of the sovereign asserting it to seize that person and imprision him to await the sovereign's pleasure. But when that power exists and is asserted by service at the beginning of a cause, or if the party submits to the jurisdiction in whatever form may be required, we dispense with the necessity of maintaining the physical power, and attribute the same force to the judgment or decree whether the party remain within the jurisdiction or not. This is one of the decencies of civilization that no one would dispute.'

2. Did the court err in holding that Texas Community Property Law has no applicability, even though defendant has been a Texas resident since January 1953? While there seems to be a paucity of decided cases on this subject, appellee cites and relies upon two cases involving property settlement agreements incident to divorce actions which reject the applicability of the Community Property Law. They are (1) Alexander v. Alexander, 64 F.Supp. 123, affirmed 10 Cir., 158 F.2d 429, certiorari denied 330 U.S. 845, 67 S.Ct. 1086, 91 L.Ed. 1290; Headnote 3 in 158 F.2d 429 epitomizes the opinion there. It is this: 'Where defendant was required by a Missouri separation agreement, approved by a divorce decree, to pay plaintiff a percentage of defendant's annual gross income in excess of a specified amount, and defendant thereafter remarried and moved to Texas, where one-half of the earnings of a husband belong to wife, defendant could not invoke Texas law to reduce his gross income by one-half in computing amount due plaintiff under agreement and all computations were required to be made under Missouri law.'

The Court speaking thereto had this to say:

'This being a Missouri contract, it must be presumed that when the parties used the term 'gross...