Williams v. Williams, 407

• Decision Date: 17 January 1964
• Docket Number: No. 407,407
• Citation: 134 S.E.2d 227,261 N.C. 48
• Parties: Marguerite L. WILLIAMS v. Jerome O. WILLIAMS.
• Court: North Carolina Supreme Court

Page 227

134 S.E.2d 227

261 N.C. 48

Marguerite L. WILLIAMS v. Jerome O. WILLIAMS.

No. 407

Supreme Court of North Carolina.

Jan. 17, 1964

Deal, Hutchins & Minor, by Fred S. Hutchins and Edwin T. Pullen, WinstonSalem, Chamblee & Nash by M. L. Nash, Statesville, for plaintiff appellee.

Williams, Willeford & Boger, Concord, E. T. Bost, Jr., Concord, and W. R. Battley, Statesville, for defendant appellant.

SHARP, Justice.

Defendant's assignments of error 1, 4, 5, and 8 relate, in substance, to his Honor's ruling that the deed of separation did not constitute a valid plea in bar. A wife who, in a valid deed of separation, has released her husband from his obligation to support is remitted to her rights under the agreement. As long as the deed of separation stands unimpeached, the court is without power to award her alimony and counsel fees. Kiger v. Kiger, 258 N.C. 126, 128 S.E.2d 235; Brown v. Brown, 205 N.C. 64, 169 S.E. 818. A resumption of marital relations by the parties, however, will annul and rescind the deed of separation. Turner v. Turner, 242 N.C. 533, 89 S.E.2d 245; Reynolds v. Reynolds, 210 N.C. 554, 187 S.E. 768. The defendant recognizes this rule of law but he contends that since he had denied any resumption of marital relations with the plaintiff, the court was without authority to award her alimony pendente lite until that issue had been determined by a jury. When the judge declined to delay the hearing on this ground, defendant attempted to delay it by noting an immediate appeal to the Supreme Court. However, the judge proceeded to hear the entire matter, including the parties' evidence pertaining to the plea in bar. After doing so he found the facts against the defendant.

The defendant's contention with reference to the hearing of his plea cannot be sustained. It was decided adversely to him in Oldham v. Oldham, 225 N.C. 476, 35 S.E.2d 332, and Taylor v. Taylor, 197 N.C. 197, 148 S.E. 171. In each of these cases (actions for alimony without divorce) the defendant contended that a deed of separation between the parties must first be declared invalid before the judge could award alimony pendente lite. In each case the court overruled this contention. In Oldham, Denny, J., (now C. J.) said, 'We know of no defense that limits the power of a trial court to award subsistence pendente lite under G.S. 50-16, except the defense specified in the statute (adultery). * * * Therefore, in an action for alimony without divorce the validity or reasonableness of a separation agreement need not be determined before the court can award temporary allowances. The statute expressly provides that such allowances may be made 'pending the trial and final determination of the issues involved in such action."

Oldham and Taylor, although decided under G.S. § 50-16, are equally applicable to a motion for temporary alimony under G.S. § 50-15 pending the trial of an action for divorce from bed and board. 'The granting of alimony pendente lite is given by statute for the very purpose that the wife have immediate support and be able to maintain her action. It is a matter of urgency.' 2 Lee, North Carolina Family Law § 138.

The defendant was not entitled either to have his plea in bar determined by a jury or to have this court review the judge's ruling on the plea in bar before the judge could award plaintiff temporary alimony. Cf. Veazey v. City of Durham, 231 N.C. 354, 57 S.E.2d 375. The finding of fact by the judge that the parties had resumed marital relations after the execution of the deed of separation is not binding on them upon a trial on the merits, and is not competent in evidence thereon. Hall v. Hall, 250 N.C. 275, 108 S.E.2d 487. Assignments of error 1, 4, 5 and 8 are not sustained.

In the record, defendant's exception No. 2 appears as follows:

'To the ruling of the Court overruling the defendant's objection and exception to the Orders of the Clerk of the Superior Court allowing amendment to the pleadings by the plaintiff, the defendant excepts.'

However, in the grouping of the assignments of error, assignment No. 2 appears as follows:

'2. To the ruling of the Court overruling the defendant's objection and exception to the orders of the Clerk of Superior Court allowing amendments to the pleadings by the plaintiff, without notice or hearing thereon. (Italics ours.)

EXCEPTION No. 2 (R pp. 43-44)

(Petition for Writ of Certiorari filed as to this ruling.)'

The record fails to sustain the statement that the ruling complained of was 'without notice or hearing thereon.' The order appealed from recites that this matter was 'heard upon all the motions filed herein as appears of record and all appeals from the Clerk of Superior Court as appears of record and upon the plea in bar. * * *' Statements in the appellant's brief to the contrary cannot be considered or accepted. The allowance of the motion to amend the complaint was in the sound discretion of the court and no abuse appears.

Assignment of error No. 3 is to 'the ruling of the Court in denying the defendant's motions to strike. * * *' The omission indicated is identical with the italics in assignment No. 2 above. Plaintiff's complaint and the amendments thereto constitute fourteen pages of the printed record. Defendant's motion to strike portions of the complaint relates to words, phrases, whole paragraphs, and parts of paragraphs. Nowhere in the record are these segregated nor are they delineated in the complaint itself. Assignment of error No. 3 is equivalent to an assignment relating to a motion to strike which the court characterized as 'broadside' in Harris v. Carolina Power & Light Co., 243 N.C. 438, 90 S.E.2d 694. It was to review the ruling of the trial judge in denying defendant's motion to strike in its entirety that this court allowed certiorari thereby granting defendant the right to an immediate appeal from the order of Judge McLaughlin. However, in perfecting this appeal, so far as it pertains to the ruling on the motion to strike, the defendant has totally disregarded Rules 19(3) and 21 of the Rules of Practice of the Supreme Court which apply to all appeals whether they come to this Court by writ or in regular order. Eastern Steel Products Corporation v. Chestnutt, 252 N.C. 269, 113 S.E.2d 587. See Nichols v. McFarland, 249 N.C. 125, 105 S.E.2d 294. In order to review his Honor's ruling on the motion to strike it would be necessary for this Court to perform a mapping operation before undertaking a 'voyage of discovery' through the record. We will do neither. Pratt v. Bishop, 257 N.C. 486, 126 S.E.2d 597. However, we assume that the motion to strike was not made because defendant apprehended any prejudice from the challenged allegations in any hearing before the judge.

Assignment of error No. 7 is to 'the failure of the Court to find facts to the effect that the plaintiff has not sufficient means wherein to subsist during the prosecution of the suit as the basis for the award of alimony pendente lite under G.S. § 50-15.' It is not necessary to decide whether this assignment challenges the award to the wife because assignment of error No. 9 to the entry of the order allowing plaintiff temporary alimony raises the question whether the facts found are sufficient to support the order. Clark v. Pilot Freight Carriers, Inc., 247 N.C. 705, 102 S.E.2d 252; 1 Strong, N.C.Index, Appeal & Error § 21.

The judge found these facts: On August 12, 1962 the defendant 'willfully and wrongfully abandoned and deserted the plaintiff and has willfully failed and refused to provide adequate support for plaintiff and the children in keeping with his financial ability and station in life and before, at and since said time has offered such indignities to the person of the plaintiff as to make her condition intolerable and her life miserable as set out in detail in her complaint and amendments thereto and in her other affidavits filed herein, and the Court further finds as a fact and conclusion of law that the resumption of the marital relationship on July 15, 1962 voids (the) deed of separation executed prior thereto on June 8, 1962.' He further found that plaintiff is without the necessary funds with which to prosecute her action.

Prior to 1961 when the statute was amended, for a wife to obtain temporary alimony under G.S. § 50-15, the requirement of the statute was that she set forth in her complaint facts which would entitle her to the relief demanded, which facts 'shall be found by the judge to be true * * *.' This Court consistently held that when an award of temporary alimony was made under G.S. § 50-15 the statute required the judge to find the essential and issuable facts and set them out in detail so that, upon appeal, the court could determine from the facts whether the judge's conclusion that the wife had a right to alimony was legally correct. Easeley v. Easeley, 173 N.C. 530, 92 S.E. 353; Moody v. Moody, 118 N.C. 926, 23 S.E. 933; Griffith v. Griffith, 89 N.C. 113. The court frequently pointed out the difference between G.S. § 50-15 and G.S. § 50-16 which contains no requirement that the judge make specific findings with reference to the facts upon which he bases his order for temporary alimony except when the adultery of the wife is pleaded in bar. Caudle v. Caudle, 206 N.C. 484, 174 S.E. 304; McManus v. McManus, 191 N.C. 740, 133 S.E. 9; Price v. Price, 188 N.C. 640, 125 S.E. 264.

As amended by Chapter 80 of the Session Laws of 1961, G.S. § 50-15 now provides that it shall be lawful for the judge to order the husband to pay alimony if the facts set forth in her complaint 'shall probably entitle her to the relief demanded.' Apparently, the purpose of this amendment was to eliminate the distinction between G.S. § 50-15 and G.S. § 50-16 insofar as finding the facts with reference to the truth of the allegations of the complaint is concerned. It removed from G.S. § 50-15 the requirement that the judge make specific findings that the facts...