Zimmerman v. Zimmerman

• Decision Date: 05 December 1893
• Citation: 113 N.C. 432,18 S.E. 334
• Court: North Carolina Supreme Court
• Parties: ZIMMERMAN. v. ZIMMERMAN.

18 S.E. 334

113 N.C. 432

ZIMMERMAN.

v.ZIMMERMAN.

Supreme Court of North Carolina.

Dec. 5, 1893.

Divorce —Alimony Pendente Lite—Notice— Failure to Answer — Findings by Court — Contempt.

1. Under Code, § 1291, providing, as a condition to the allowance of alimony pendente lite, that five days' notice be given the husband, the fact that the notice does not specify the time and place of the hearing does not invalidate the order, it having been rendered in the divorce suit at the term of court at which the suit stood regularly for trial.

2. Under the provision of Code, § 1291, allowing the husband to controvert the allegations of the wife for alimony pendente lite, and authorizing the court to make an allowance if he shall find her allegations to be true and to entitle her to relief, it is sufficient that he find that no answer was filed, and adjudged that alimony be paid, the provision of section 1288 that allegations of the complaint are deemed denied applying only to the trial on the merits.

3. A sentence of 30 days imposed on the husband for contempt in not obeying the order to pay alimony will be affirmed where he did not appeal from the order, failed to get it set aside, though applying to three different judges, and allowed 18 months to elapse without payment, though acknowledging that he had sufficient unincumbered personal property therefor.

Appeal from superior court, Caldwell county; James D. McIver, Judge.

Action by L. W. Zimmerman against H. Zimmerman for divorce. From a sentence of 30 days for contempt, for failure to obey an order granting plaintiff alimony pendente lite, defendant appeals. Affirmed.

S. J. Ervin, for appellant

CLARK, J. Prior to the act of 1883, c. 67, which is now incorporated in section 1291 of the Code, the allegations of the complaint and petition were taken as true, for the purposes of the motion for alimony. The only question reviewable on appeal was the sufficiency of plaintiff's allegations. Morris v. Morris, 89 N.C. 109. But, by the amendatory act of 1883, the husband, upon a motion for alimony, was permitted to deny the allegations of the complaint by answer or affidavit, and the judge was required to find such of the plaintiff's allegations to be true as would entitle her to the order, before granting the same. Lassiter v. Lassiter, 92 N.C. 134. Then, on appeal, the sufficiency of the facts found, and not of the plaintiff's com plaint, were to be considered.

The order for alimony may be made in or out of term, but the defendant must have five days' notice thereof. In the present case the summons was issued and served in July, 1891, returnable to the superior court of Caldwell county. The complaint, duly verified, was filed at September term, 1891. On March 1, 1892, the plaintiff filed in said court her petition for alimony, and caused the clerk of the court to issue notice to the defendant that she had filed said petition in the cause pending in that court, asking the court to make such order. This was duly served on March 3d. At the term of the court which was held three or four weeks thereafter, the court entered an order reciting, "This cause coming on to be heard, and being heard, and no answer having been filed to the petition filed by the plaintiff, " and directing the payment by defendant, as alimony, of $50 in cash, and $5 at the end of each month, till the next term of the court. The defendant neither appealed from said order, nor obeyed it. He contends that it is void and of no effect (1) because the notice did not specify a time and place for its hearing; and (2) because the judge did not find the allegations of the complaint to be true.

if, upon such notice, the hearing had been at any other time and place than the regular term of court at which the action was pending, there would be some ground of objection to the order. It would; at least, have been irregular, and should have been set aside onmotion. But, when the order was made in the cause, and at the term of court, and especially at the term at which the cause stood regularly for trial, the defendant is fixed with notice thereof. Hemphill v. Moore, 104 N. C. 379, 10 S. E. 313; Erwin v. Lowry, 64 N.C. 321; Clark's Code, (2d Ed.) 651. Notice is required to be given only when the application is heard out of term time. Coor v. Smith, 107 N.C. 430, 11 S. E. 1089. Application for alimony can be made by a motion in the cause. Reeves v. Reeves, 82 N.C. 348.

The...