Whitesides v. Whitesides , 271 N.C. 560 ( 1967 )

157 S.E.2d 82 (1967) 271 N.C. 560

Lela Rose McLean WHITESIDES
v.
Henry Monroe WHITESIDES, Sr.

No. 203.

Supreme Court of North Carolina.

October 11, 1967.

Sanders, Walker & London and Larry Thomas Black, Charlotte, for plaintiff appellant.

Hollowell, Stott & Hollowell and Ernest R. Warren, Grady B. Stott, Gastonia, for defendant appellee.

BOBBITT, Justice.

The judgment of June 7, 1967, from which plaintiff appeals, does not refer to the order of June 24, 1966, entered by Judge Houk or to the modification thereof by order of November 30, 1966, entered by Judge Bryson. By sustaining the purported post-judgment demurrer to the complaint and providing for the filing of new pleadings, Judge McLean seemingly treated as void the prior orders of Judge Houk and Judge Bryson.

Plaintiff did not allege, nor did the court find, either in terms or in substance, that the separation was caused by defendant's misconduct and not by any fault or misconduct on her part. However, whether plaintiff's allegations or the court's findings would be deemed defective if they had been challenged in apt time and in proper manner is not presented. The question for decision is whether the "permanent order of alimony" entered by the court on June 24, 1966, and consented to by the parties and their attorneys, is void on account of asserted deficiencies, if any, in plaintiff's allegations and in the court's findings.

The order of June 24, 1966, is a judgment of the Superior Court of Gaston County, which had jurisdiction of the parties and of the subject matter. It does not merely recite and approve the terms of an agreement entered into between the parties but orders defendant to make the payments and to comply with the conditions set forth therein. Stancil v. Stancil, 255 N.C. 507, 121 S.E.2d 882, and cases cited; Bunn v. Bunn, 262 N. C. 67, 136 S.E.2d 240; 2 Lee, North Carolina Family Law, § 152; 40 N.C.L.R. 530.

In Edmundson v. Edmundson, 222 N.C. 181, 22 S.E.2d 576, plaintiff (husband), simultaneously with the issuance of summons, applied for an extension of time to file complaint, stating the purpose of his action was "(t)o obtain a divorce from the defendant, a mensa et thoro." No pleadings were filed. A judgment was entered, based on consent, in which plaintiff was ordered to make specified payments "(i)n lieu of alimony, or other marital rights or obligations, * * *." Pertinent to the cause of their separation, the court's factual findings were that plaintiff and defendant "lived together as man and wife until June 9, 1939, * * * that plaintiff and defendant, being unable to live together agreeably as husband and wife, have lived separate and apart since June 9, 1939, and that differences and disagreements existing between them render it reasonably necessary to their health and happiness that they continue to live separate and apart, * * *." This Court, in opinion by Winborne, J. (later C. J.), stated: "``Can alimony against the husband be awarded when there is no allegation, evidence or finding that he was the party at fault?' In an adversary proceeding the answer would be, ``No', but where, as here, the parties acted in agreement and the judgment was entered by consent, the answer is, ``Yes.'" The court quoted with approval this statement from the opinion in Keen v. Parker, 217 N.C. 378, 8 S.E.2d 209: "It is generally held that provisions in judgments and decrees entered by consent of all the parties may be sustained and enforced, though they are outside the issues raised by the pleadings, if the court has general jurisdiction of the matters adjudicated."

In Edmundson, the judgment contained the following provision: "The money payments provided herein shall be more than a simple judgment for debt. They shall be as effectively binding upon plaintiff as if rendered under and by virtue of the authority of Section 1667, Consolidated Statutes of North Carolina, and the failure of plaintiff to make the payments, as required by this judgment, shall, upon proper cause shown to the court, subject him to such penalties as may be required by the court, in case of contempt of its orders." It was held valid and enforceable against plaintiff by attachment for contempt. The statute then codified as C.S.1667, as amended in respects not material to this appeal, is now codified as G.S. § 50-16.

In Edmundson, three Justices dissented. Devin, J. (later C. J.), and Schenck, J., dissented solely on the ground the Special Superior Court Judge who entered the judgment had no authority or jurisdiction to do so after expiration of the term of court at which the matter was heard. Seawell, J., dissented on this ground and also on additional grounds, namely, (1) that the court had no authority to convert the action from an action for divorce from bed and board into an action for alimony without divorce under C.S.1667, and (2) that the consent judgment was "in reality a judgment for debt" and was not enforceable against plaintiff by attachment for contempt.

Edmundson has been cited with approval in later cases including Smith v. Smith, 247 N.C. 223, 100 S.E.2d 370; Stancil v. Stancil, supra; Bunn v. Bunn, supra.

On legal principles stated and applied in Edmundson, it is clear the order of June 24, 1966, entered by Houk, J., as modified by the order of November 30, 1966, entered by Bryson, J., is valid and is enforceable against defendant by attachment for contempt.

For the reasons stated, the judgment of June 7, 1967, purporting to sustain defendant's post-judgment "Demurrer," is reversed and vacated.

Reversed.