Stancil v. Stancil, 170
| Decision Date | 11 October 1961 |
| Docket Number | No. 170,170 |
| Citation | 255 N.C. 507,121 S.E.2d 882 |
| Court | North Carolina Supreme Court |
| Parties | Margaret STANCIL v. John W. STANCIL. |
Joseph C. Olschner, Jacksonville, for defendant appellant.
James R. Strickland, Ellis, Godwin & Hooper, Jacksonville, for plaintiff appellee.
The appellant in his case on appeal undertakes to set out six assignments of error. However, no exceptions appear anywhere in the record, not even under the purported assignments of error. Even so, in the absence of any exceptions, or when exceptions have not been preserved in accordance with the requirements of our Rules, the appeal will be taken as an exception to the judgment. Holden v. Holden, 245 N.C. 1, 95 S.E.2d 118; Barnette v. Woody, 242 N.C. 424, 88 S.E.2d 223. Therefore, in view of the state of the record on this appeal, we are limited to the question whether or not error appears on the face of the record.
Where no exceptions have been taken to the admission of evidence or to the findings of fact, such findings are presumed to be supported by competent evidence and are binding on appeal. City of Goldsboro v. Atlantic Coast Line R. R. Co., 246 N.C. 101, 97 S.E.2d 486; James v. Pretlow, 242 N.C. 102, 86 S.E.2d 759; Beaver v. Crawford Paint Co., 240 N.C. 328, 82 S.E.2d 113; Donnell v. Cox, 240 N.C. 259, 81 S.E. 2d 664.
The defendant argues and contends that a contempt proceeding cannot be based on a consent judgment. Holden v. Holden, supra; Stanley v. Stanley, 226 N.C. 129, 37 S.E.2d 118; Brown v. Brown, 224 N.C. 556, 31 S.E.2d 529; Davis v. Davis, 213 N.C. 537, 196 S.E. 819. An examination of these and similar cases reveals that the husband's obligation to make certain payments was based upon a contract merely sanctioned by the court and the court did not order the payments to be made as it did in the instant case.
Our cases hold that although a judgment may be entered by consent, based on a written agreement, if such judgment orders and decrees that the husband shall pay certain sums as alimony for the support of his wife, a wilful refusal to make the payments as directed therein will subject the husband to a proper proceeding to attachment for contempt. Dyer v. Dyer, 212 N.C. 620, 194 S.E. 278; Davis v. Davis, supra; Edmundson v. Edmundson, 222 N.C. 181, 22 S.E.2d 576; Smith v. Smith, 247 N.C. 223, 100 S.E.2d 370.
It will be noted in Davis v. Davis, supra, and Holden v. Holden, supra, the judgment entered in these respective cases did not order and direct the husband to pay anything, but merely recited what the parties had agreed upon. Hence, these and similar cases do not control the factual situation revealed on this record.
In the instant case, the court ordered that the defendant 'pay to the plaintiff alimony and subsistence for herself the sum of $250.00 per month, beginning March 14, 1960, and continuing on the 14th day of each month thereafter until final determination of this action * * *.'
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