Walker v. Walker

• Citation: 204 N.C. 210,167 S.E. 818
• Decision Date: 22 February 1933
• Docket Number: No. 650.,650.
• Court: United States State Supreme Court of North Carolina
• Parties: WALKER. v. WALKER.

167 S.E. 818

204 N.C. 210

WALKER.

v.WALKER.

No. 650.

Supreme Court of North Carolina.

Feb. 22, 1933.

Appeal from Superior Court, Cherokee County; Stack, Judge.

Suit by John W. Walker against Ruth P. Walker for divorce. A divorce decree was granted, and plaintiff was required to make payments for support of an infant daughter. From an order requiring plaintiff, his receiver, surety on plaintiff's bond, and executors of deceased surety to pay past-due installments for child's support, the receiver, surety, and executors of deceased surety appeal.

Modified and affirmed.

See, also, 201 N. C. 183, 159 S. E. 363.

After signing a decree dissolving the bonds of matrimony between John W. Walker and Ruth P. Walker, Judge Bryson made an order on 21st December, 1923, awarding to the plaintiff the custody of a son and to the defendant the custody of Margaret Walker, an infant daughter, and adjudged that John W. Walker pay for the maintenance and support of his infant daughter certain stated sums in monthly installments until she arrived at the age of 21 years; also that he execute a sufficient bond in the sum of $7,500 with a bonding company licensed to do business in North Carolina conditioned for the faithful performance of his duties and the payment of said amounts. The cause was retained, with leave to the parties to apply for a modification of the order.

At a special term held in December, 1923. Judge McElroy, on motion of the plaintiff, modified the order so as to permit the plaintiff to give a personal bond instead of one in a. bonding company. The bond was executed by the plaintiff as principal and by H. N. Wells and J. B. Carringer as sureties. H. N. Wells is dead, and Frank E. Haynes, H V. Wells, and Mrs. Margaret Wells are his executors. J. B. Carringer is insolvent.

The plaintiff made the payments for the benefit of his infant daughter until October, 1931, since which time he has not complied with said order or made payment of any installment. Upon failure of the plaintiff to comply with the former order of the court, the defendant made a motion in the cause for a renewal of the plaintiff's bond, and, upon affidavits filed by the plaintiff, the defendant, the receiver, and one of the executors, Judge Stack made art order that the plaintiff and his receiver, and J. B. Carringer and the executors of H. N. Wells, deceased, pay the defendant for the maintenance and support of Margaret Walker the sum of $175, the installments due and unpaid, that the receiver pay the same out of any money, property, or effects of the plaintiff, and that, if payment should not be made within 20 days from April 14, 1932, by the plaintiff or his receiver, execution should issue against Carringer, surety, and proper steps should be taken against the executors of H. N. Wells, who also was a surety. It was further adjudged that the homestead and personal property exemptions of the plaintiff, when allotted, should be specifically charged with the payment of said amounts; that the plaintiff should make pay-ment within 20 days from April 14, 1032; and that the amount of the payments to be made from April 2, 1932, to April 2, 1935, be reduced to $10 per month, but that this reduction should not be allowed unless the sum of $175 was paid within 20 days from April 14, 1932.

D. H. Tillitt, receiver of John W. Walker, and J. B. Carringer, and the executors of H. N. Wells excepted to the foregoing judgment, and appealed to the Supreme Court.

Ralph Moody and J. B. Gray, both of Murphy, for B. H. Tillitt.

J. D. Mallonee, of Murphy, for J. B. Carringer and executors of H. N. Wells.

M. W. Bell, of Murphy, for Ruth P. Walker.

ADAMS, Justice.

Upon the trial of an issue of fact by the court, its decision shall be given in writing, and shall contain a separate statement of the facts found and the conclusions of law. C. S. § 569; Eley v. A. C. L. R. R., 165 N. C. 78, 80 S. E. 1064. Conceding for the present purpose that the principle applies when mixed questions of fact and law are involved (Pou-shee v. Pattershall, 67 N. C. 453), we think there is no substantial difference between the parties as to the facts upon which the controversy is to be determined.

The plaintiff did not appeal. The sums assessed against him are a debt of record, and may be enforced by attachment in proper cases or by the milder form of a fieri facias. Wood v. Wood, 61 N. C. 538; Sanders v. Sanders, 167 N. C. 317, S3 S. E. 489, 490. By its first order the court retained the cause subject to the right of either party at any time to apply for a modification of the order, and pursuant to this provision Judge Stack made the sums assessed a charge on the plaintiff's homestead and personal property exemptions when allotted. The modification was authorized by statute as well as by the order of the...