Joyner v. Joyner , 256 N.C. 588 ( 1962 )

124 S.E.2d 724 (1962) 256 N.C. 588

Edith P. JOYNER
v.
Reese B. JOYNER.

No. 233.

Supreme Court of North Carolina.

March 28, 1962.

Cooley & May, by Harold D. Cooley, Nashville, for defendant-appellant.

L. L. Davenport, Nashville, for plaintiff-appellee.

HIGGINS, Justice.

Without merit is the defendant's appeal from the order awarding to the plaintiff for herself and the child alimony pendente lite, counsel fees, and custody of Ricky Joyner. The complaint states a cause of action for divorce a mensa et thoro. Evidence of the plaintiff's need, her suitability for the child's custody, and the defendant's ability to pay is plenary. The amount of the award is certainly not excessive. G.S. § 50-16. Bailey v. Bailey, 243 N.C. 412, 90 S.E.2d 696; Fogartie v. Fogartie, 236 N.C. 188, 72 S.E.2d 226. Untenable are the objections that Judge Bundy held hearings in Tarboro and Wilson. In each instance the defendant and counsel were given notice and without objection appeared and participated in the hearings. While these In Chambers proceedings were outside Nash County, where the action was pending, nevertheless they were held in the same judicial district and by the judge regularly assigned to preside over the courts of that district. In so far as the alimony pendente lite and counsel fees for the plaintiff are concerned, the hearing could be held on proper notice anywhere in the judicial district. "The present statute (The Code, § 1291) (now G.S. § 50-15) provides that the motion may be heard and determined in or out of term, and certainly the wife in such case ought not to be left to starve till the judge or his successor shall come to the county. The motion is ancillary, and not a motion for judgment on the merits, or a motion in the cause, strictly speaking, and hence it can be heard anywhere in the district." (citing cases) Moore v. Moore, 130 N.C. 333, 41 S.E. 943.

In so far as custody is concerned, the defendant, having attended and participated in the hearing in the district before the judge regularly holding the courts, is bound by the judgment entered. Griffin v. Griffin, 237 N.C. 404, 75 S.E.2d 133; Heuser v. Heuser, 234 N.C. 293, 67 S.E.2d 57; Pate v. Pate, 201 N.C. 402, 160 S.E. 450. The Griffin case involved custody alone.

Pending the defendant's appeal to this Court from Judge Bundy's order allowing alimony and counsel fees and fixing custody, the plaintiff filed a verified motion in the cause, stating the defendant had wilfully violated the order both as to the payment of alimony and as to the custody of the child. Judge Bundy ordered the defendant to appear and show cause why he should not be held in contempt. At the hearing Judge Bundy found the defendant had wilfully violated the order and was in wilful contempt. Nevertheless he concluded that because the appeal was then pending he had no power to punish for contempt and dismissed the show cause proceeding. Both parties gave notice of appeal. The defendant, only, brought the record of the show cause proceeding here, designating it as his second appeal.

Our decisions appear to be uniform in holding an appeal to this Court removes a cause from the superior court which is thereafter without power to proceed further until the cause is returned by the mandate of this Court. Lawson v. Lawson, 244 N.C. 689, 94 S.E.2d 826; Bailey v. McPherson, 233 N.C. 231, 63 S.E.2d 559; Cameron v. Cameron, 231 N.C. 123, 56 S.E.2d 384; Lawrence v. Lawrence, 226 N.C. 221, 37 S.E.2d 496; Ridenhour v. Ridenhour, 225 N.C. 508, 35 S.E.2d 617; Ragan v. Ragan, 214 N.C. 36, 197 S.E. 554; Vaughan v. Vaughan, 211 N.C. 354, 190 S.E. 492; Page v. Page, 167 N.C. 346, 83 S.E. 625. "The general rule is universally recognized that a duly perfected appeal or writ of error divests the trial court of further jurisdiction of the cause in which the appeal has been taken. The jurisdiction over the cause is transferred to the appellate court." 3 Am.Jur., Appeal and Error, § 528.

Judge Bundy was correct in holding that the superior court was divested of jurisdiction by the appeal. Consequently the findings of wilful violation of the pendente lite order for the payment of alimony and counsel fees were without authority and are void. However, with respect to the money judgments, the appeal does not stay execution against the defendant's property for the collection of the judgment unless a stay or supersedeas is ordered. The appeal stays contempt proceedings until the validity of the judgment is determined. But taking an appeal does not authorize a violation of the order. One who wilfully violates an order does so at his peril. If the order is upheld by the appellate court, the violation may be inquired into when the case is remanded to the superior court.

In a custody case, the court acquires jurisdiction of the child as well as the parent. The child thus becomes a ward of the court. The court's duty to its ward should not be held in abeyance pending appellate review. Does jurisdiction to see that the child is properly cared for remain in the superior court after the appeal, or does the appeal transfer the jurisdiction to the appellate court? Am.Jur., 17A, Divorce and Separation, § 814, p. 11, and A.L.R. 163, p. 1323, deal with the question in almost identical terms. "Jurisdiction * * * of custody of children, * * * pending appeal * * * This question usually has arisen in respect of the enforcement or modification, pending appeal, of the order or decree of the trial court. In some jurisdictions the appellate court has exclusive jurisdiction concerning custody during the pendency of the appeal. (Citing many cases, including Page v. Page, supra.) Contrary to the foregoing rules, it is held in other jurisdictions that the power to make or enforce custody orders pending an appeal * * * is in the trial court." A third view is that the question of which court has jurisdiction depends upon whether a stay or supersedeas has been granted. Gotthelf v. Fickett, 37 Ariz. 322, 294 P. 837, on rehearing 37 Ariz. 413, 294 P. 840. The North Carolina cases fit into the general rule that appeal removes the entire proceeding to the Supreme Court and leaves the superior court functus officio until the cause is remanded. This seems to be true even in custody cases both as to the order of custody and as to allowance for the child's support. "There is another reason especially arising out of the status of the case during appeal; under the circumstances of this case the judge was functus officio; his authority over the matters involved having ended with the appeal, from the order of June 2, which took the case out of his jurisdiction." Cameron v. Cameron, supra. "The appeal from the order allowing support pendente lite for the child took the case out of the jurisdiction of the superior court. Pending the appeal the judge was functus officio. Hence the adjudication of contempt and the order of imprisonment are void and of no effect." Lawrence v. Lawrence, supra.

However, as in the case of a wife's alimony pendente lite, the allowance for the child may be enforced by execution against the defendant's property pending appeal unless stay or supersedeas is ordered. Surely, however, some more adequate provision should be made for the child during the legal battle of its parents. Frequently it is months after an appeal is taken until the record is seen here.

The contempt proceeding in this case was void. The findings of wilful violation are likewise void. The order allowing alimony, counsel fees, and custody, challenged by the first appeal, is affirmed. The order dismissing the contempt proceeding from which the defendant takes the second appeal, is likewise affirmed. However, the finding of wilful contempt is a nullity. The superior court having been deprived of jurisdiction by the appeal, and the proceeding consequently without effect, nevertheless the question of the wilful violation of the court's order may be investigated by the superior court when the case is remanded to that court. The defendant's motion suggesting diminution of the record is allowed. The plaintiff's motion to dismiss the appeal is denied. The defendant will pay all costs.

Affirmed.

SHARP, J., took no part in the consideration or decision of this case.