Yow v. Yow

• Decision Date: 09 November 1955
• Docket Number: No. 393,393
• Citation: 243 N.C. 79,89 S.E.2d 867
• Parties: Annle Grace YOW v. Earl R. YOW.
• Court: North Carolina Supreme Court

Page 867

89 S.E.2d 867

243 N.C. 79

Annle Grace YOW v. Earl R. YOW.

No. 393

Supreme Court of North Carolina.

Nov. 9, 1955

Royster & Royster, Oxford, for plaintiff, appellee.

Hubert H. Senter, Franklinton, and Hill Yarborough, Louisburg, for defendant, appellant.

PARKER, Justice.

This question is presented for decision: Does a decree of absolute divorce obtained by her former husband in 1951 under the two-year separation statute G.S. § 50-6 annul the right of his former wife to receive subsistence pendente lite under orders rendered in her action for alimony without divorce, G.S. § 50-16, before the commencement of the proceeding for absolute divorce, her action for alimony without divorce having been instituted in 1949, and never having been finally determined?

G.S. § 50-16 provides two separate remedies: one, for alimony without divorce, and two, for subsistence and counsel fees pendente lite. Fogartie v. Fogartie, 236 N.C. 188, 72 S.E.2d 226; Bateman v. Bateman, 233 N.C. 357, 64 S.E.2d 156; Oldham v. Oldham, 225 N.C. 476, 35 S.E.2d 332; McFetters v. McFetters, 219 N.C. 731, 14 S.E.2d 833.

Under G.S. § 50-16 both temporary and permanent alimony may be awarded. Stanley v. Stanley, 226 N.C. 129, 37 S.E.2d 118.

G.S. § 50-11 provides 'that a decree of absolute divorce upon the ground of separation for two successive years as provided in § 50-5 or § 50-6 shall not impair or destroy the right of the wife to receive alimony under any judgment or decree of the court rendered before the commencement of the proceeding for absolute divorce. ' The amendments to this statute by Session Laws 1953, Chapter 1313, and by Session Laws 1955, Chapter 872, are inapplicable, because enacted subsequent to the defendant's judgment for absolute divorce in 1591.

We have held that a judgment or decree of the court for permanent alimony rendered before the commencement of a proceeding for absolute divorce is not destroyed by a decree of absolute divorce upon the ground of separation for two successive years as provided in G.S. § 50-5 or § 50-6. Rayfield v. Rayfield, 242 N.C. 691, 89 S.E.2d 399; Deaton v. Deaton, 237 N.C. 487, 75 S.E.2d 398; Simmons v. Simmons, 223 N.C. 841, 28 S.E.2d 489 ('the judgment shows on its face that it was intended as a final settlement between the parties, and it was so regarded at the time').

These were the facts in Howell v. Howell, 206 N.C. 672, 174 S.E. 921: Plaintiff instituted an action for alimony without divorce against her husband. On 3 February 1930 an order was entered in the action by Judge Daniels reciting: "'It is, therefore, by consent, ordered that the said C. S. Howell pay to the plaintiff the sum of $50.00 as counsel fees and $75.00 per month, beginning on 12th February 1930, until the further order of the court. ''' On 24 December 1932, upon motion of the defendant, the amount of monthly payments was reduced by Judge Sinclair to $50 per month, to continue until the further order of the court. In 1933 the defendant was granted an absolute divorce from the plaintiff in an action instituted by him in Chatham County on the ground of a two-year separation: the judgment reciting that it "is entered without prejudice to the action pending in the Superior Court of Wake County, North Carolina, entitled: 'Mrs. Pearl D. Howell v. C. S. Howell,' and all orders heretofore made in said action pending in the Superior Court of Wake County shall not be affected by this judgment.' ' At the February Term 1934 of the Superior Court of Wake County the defendant was cited to appear before the Presiding Judge to show cause as to why he should not be attached for contempt in failing to pay his wife subsistence ordered paid by the order of 1930, as modified by the order of 1932. The defendant denied that he was liable to the plaintiff in any sum because of his decree of absolute divorce. It is to be noted that the order was to pay subsistence pendente lite. There had been no final determination of the action for alimony without divorce. The defendant was held in contempt, and this Court affirmed the order of the lower court holding the judgment for absolute divorce did not destroy the order for temporary subsistence entered in the wife's action for alimony without divorce by virtue of N.C.Code 1931, Sec. 1663 (Now G.S. § 50-11), saying: 'The judgment in the present action of Sinclair, J., remains in full force and effect. ' The opinion states the language of the divorce decree that it was entered without prejudice to the plaintiff's pending action for alimony without divorce, but the decision was based upon the language of N.C.Code 1931, Sec. 1663, and not upon this language of the divorce decree.

In Simmons v. Simmons, supra, the wife was awarded permanent alimony in a suit for alimony without divorce, and the judgment recites: "This judgment shall remain in full force and effect pending further orders of the court and its binding effect upon the defendant shall not be impaired by any judgment of absolute divorce which may hereafter be entered in any suit instituted by the defendant against the plaintiff for an absolute divorce on the grounds of two years' separation.' ' An absolute divorce was afterwards granted, which the Court held did not destroy the alimony allowance. The Court said: 'Of course, the declaration that defendant would still be liable for future installments under the original judgment adds nothing to its effectiveness.'

Winborne, J., said for the Court in Dyer v. Dyer, 212 N.C. 620, 194 S.E. 278, 280: 'The words 'alimony' and 'subsistence' have a kindred meaning. * * * Each is appropriate for use in dealing with the subject of support for the wife. ' Later on in this opinion he said, speaking of Ch. 52, Public Laws 1923, entitled: "An Act to amend Section 1667 of the Consolidated Statutes, Relating to Alimony Without Divorce,'' where the word 'alimony' appears: 'Thus it is clear that the Legislature, in enacting the original sections, and all along the line, used the word 'alimony' in its broad rather than technical meaning.'

G.S. § 50-16 provides that the defendant's decree of divorce shall not impair or destroy the right of the plaintiff to receive alimony under the decrees of court rendered in her favor before the commencement of his action for absolute divorce. The word 'alimony' used in the statute includes subsistence for her, and we have decided in Howell v. Howell, supra, that the word 'alimony' includes subsistence pendente lite. The question asked at the beginning of this opinion is answered No.

In plaintiff's action for alimony without divorce the defendant has never filed an answer. There is no evidence in the record that he has ever requested a final determination of that action. After his decree of absolute divorce, he has made large payments of subsistence pendente lite. Under these facts she will not be denied temporary subsistence on the ground that she has unreasonably delayed the trial of her action to the extent that her conduct raises a presumption of bad faith on her part. 60 Am.Dec. 678; 17 Am.Jur., Divorce and Separation, p. 435.

The lower court has not found as a fact that the defendant possessed the means to comply with the orders for the payment of subsistence pendente lite at any time during the period when he was in default in such payments. Therefore, the finding, that the defendant's failure to make the payments of subsistence was deliberate and wilful, is not supported by the record, and the decree committing him to imprisonment for contempt must be set aside. Lamm v. Lamm, 229 N.C. 248, 49 S.E.2d 403; Smithwick v. Smithwick, 218 N.C. 503, 11 S.E.2d 455; Berry v. Berry, 215 N.C. 339, 1 S.E.2d 871; Vaughan v. Vaughan, 213 N.C. 189, 195 S.E. 351; West v. West, 199 N.C. 12, 153 S.E. 600.

Judge Hobgood made an allowance of $250 counsel fees to plaintiff's counsel, holding that the allowance of $100 counsel fees by Judge Burney in 1949 was wholly inadequate compensation for the services her counsel had rendered. The defendant has no assignment of error as to the allowance of the counsel fee of $250, except as it may be included in his general assignments of error that the court had no jurisdiction to hear the citation for contempt, and that the judgment was void. In his brief he makes no mention of the allowance of this counsel fee, and it seems he has abandoned any attack upon it. Rule 28, Rules of Practice in the Supreme Court, 221 N.C. 544.

Plaintiff's action is still pending, there having been no final determination of it. McFetters v. McFetters, supra. The allowance in a proper case of...