West v. West

• Decision Date: 16 June 1930
• Docket Number: 607-N.
• Citation: 153 S.E. 600,199 N.C. 12
• Parties: WEST v. WEST.
• Court: North Carolina Supreme Court

153 S.E. 600

199 N.C. 12

WEST v. WEST.

No. 607-N.

Supreme Court of North Carolina

June 16, 1930

Appeal from Superior Court, Buncombe County; MacRae, Special Judge.

Divorce action by Mildred T. West against Martin H. West. Plaintiff obtained a divorce absolute against defendant, and a judgment was rendered that defendant pay $25 per month for support of minor son. Plaintiff made an affidavit to effect that defendant had failed to pay such support money, and defendant was held in contempt of court, and he appeals.

Reversed.

The plaintiff and defendant were married on May 22, 1920, and lived together as man and wife until July 8, 1928. They had one son, Martin H. West, Jr., born May 17, 1921. The plaintiff obtained a divorce absolute against the defendant and he has married again.

A judgment was rendered by Finley, J., to which the defendant made no exception, as follows: It is "Ordered, Adjudged and Decreed by the Court that the defendant pay to the plaintiff for the maintenance and support of said minor Martin H. West, Jr., the sum of $25.00 per month, the first payment to be made on December 15, 1929, and $25.00 to be paid on the 15th of each month thereafter, said payments to be made to the Clerk of the Superior Court for Buncombe County, North Carolina."

The plaintiff made an affidavit in the cause and, among other things, is the following: "That, this affiant has complied with the provisions of the judgment on her part in all respects, but that the defendant, Martin H. West, has failed and refused, and continues to fail and refuse to pay any sum whatever for the maintenance of Martin H. West, Jr. and has not to this date paid one cent for such support. Wherefore, affiant prays the Court that notice issue to Martin H. West to show cause at a time and place to be fixed by the Court, if any he has, why he should not be attached for contempt of Court."

The cause came on for hearing before Judge C. F. MacRae, Judge Presiding. The plaintiff introduced no evidence. The defendant testified, in part: "There was born to us one son, Martin H. West, Jr., on May 17, 1921; he is at the present time living on Arlington Street, with Mildred West but spends every other week with me. I have tried to locate a position or a job for the past eighteen months, without success; I have tried many places for work but have not been able to find any with the exception of approximately six weeks that I worked at the Sheriff's office. I have written to foreign corporations in order to get a position as a salesman, and I have been to many local places in Asheville; I have not been able to comply with Judge Finley's order to pay $25.00 a month toward the support of my son, Martin H. West, Jr.; the reason that I have not been able to pay it is because I have not had work; I do not own any property, and have no income whatever."

On cross-examination, he stated that his wife obtained an absolute divorce. That he married again on November 30, 1929, and is living with his wife, who is a nurse and she works when she can get employment, but at present the demand for nursing is quiet and she is getting very little to do. He is 29 years of age and in good health and suffering from no physical disability. At May term, 1922, of the superior court of Buncombe county, he was ordered to pay $40 a month for the support of his wife and child. That he was cited for failure to comply with the former judgment. He further testified: "I don't see why I should have been required to support my wife prior to the divorce, since she left me and took the child with her. I have paid nothing since Judge Finley's order."

S. D West, the father of defendant, testified: "Martin H. West is my son; he lives with me at 157 Patton Avenue; he has lived with me there for a number of years, with the exception of the time he and his wife lived together; he is not employed at this time; he has tried many places to my knowledge to get employment; he does not own any property and has no income. I don't think he has worked at a regular position, with the exception of the time that he was at the Sheriff's office for about six weeks, for the past eighteen months. I am out of employment at this time. I have been for the last sixteen years employed at the Weight Department of the Southern Railway, but, due to lack of work and poor business, I have been cut off; I have no other income but my salary. I do not own any property, and have no way to help him, and cannot give him the money to pay to his son. I am willing to take the boy, take care of him, and provide support for...