Harrell v. Harrell ( 1961 )

117 S.E.2d 728 (1961) 253 N.C. 758

Gladys HARRELL
v.
Walter R. HARRELL, Jr.

No. 387.

Supreme Court of North Carolina.

January 20, 1961.

Robert B. Wilson, Jr., Winston-Salem, for plaintiff.

W. Scott Buck, Winston-Salem, for defendant.

MOORE, Justice.

A Superior Court Judge can neither allow nor refuse an appeal. "Appeals lie from the Superior Court to the Supreme Court as a matter of right rather than as a matter of grace. Under the Code of Civil Procedure, the aggrieved party is authorized to take an appeal in the cases prescribed by law. G.S. §§ 1-271, 1-277, 1-279, 1-280. In such cases, he appeals as a matter of right on compliance with the statutes and rules of court as to the time and manner of taking and perfecting the appeal." But where an interlocutory order is not subject to appeal, the Superior Court need not stay proceedings pending dismissal of the appeal in Supreme Court. Veazey v. Durham, 231 N.C. 357, 365, 57 S.E.2d 377, 383.

"Appellate procedure is designed to eliminate the unnecessary delay and expense of repeated fragmentary appeals, and to present the whole case for determination in a single appeal from the final judgment. To this end, the statute defining the right of appeal prescribes, in substance, that an appeal does not lie to the Supreme Court from an interlocutory order of the Superior Court, unless such interlocutory order deprives the appellant of a substantial right which he might lose if the order is not reviewed before final judgment. G.S. § 1-277 (and cases cited)." City of Raleigh v. Edwards, 234 N.C. 528, 529, 530, 67 S.E.2d 669, 671.

Ordinarily an appeal will not lie from an order of compulsory reference made pursuant to statute and where there is no complete plea in bar to the entire case. McIntosh: N. C. Practice and Procedure, 2d Ed., Vol. 2, s. 1782(3) (b); Leach v. Quinn, 223 N.C. 27, 25 S.E.2d 170; Murchison Nat. Bank v. McCormick, 192 N.C. 42, 133 S.E. 183.

It is our opinion, however, that the order of compulsory reference in the instant case is appealable. Compulsory reference is not a proper procedure under the circumstances here presented. The order affects a substantial right of defendant. It requires that defendant deposit immediately with the Clerk $200 for payment of whatever expenses may be incurred. It is common knowledge that references are expensive. It is reasonable to assume that the expense of a reference, involving the transactions of a business having its principal office in the State of Florida and transporting produce over a large part of the United States, would greatly exceed $200. To require defendant to defer testing the validity of the order until the reference has been completed and the costs have been incurred and imposed would substantially affect his rights and leave him without remedy for recovery of the expenses necessarily involved.

The circumstances under which compulsory references may be ordered are fixed by statute. G.S. § 1-189. The court found facts as a basis for the order of reference and stated that "it is necessary that the Court determine the approximate income of the defendant," that defendant's income is not agreed upon by the parties and the amount is not readily apparent to the Court, "that the taking of an account to determine the income of defendant is necessary for the information of the Court in order to enter a proper order upon the plaintiff's Motion for temporary support * * * and that an examination should be made of the defendant's books and other business records as well as of information located in various parts of the United States."

It is apparent that the court undertook to proceed under subsection 2 of G.S. § 1-189 which authorizes a compulsory reference "Where the taking of an account is necessary for the information of the court, before judgment, or for carrying a judgment or order into effect."

"Our statutes * * * relating to trials by referees serve a useful purpose, and must be liberally construed." Jones v. Beaman, 117 N.C. 259, 261, 23 S.E. 248, 249; Murchison Nat. Bank v. Evans, 191 N.C. 535, 539, 132 S.E. 563. A reference under G.S. § 1-189, subd. 2, is in the nature of an interlocutory reference for the information of the court. Such reference involves incidental questions of fact, upon a determination of which the court may proceed, and these may be referred without involving the whole case. McIntosh: N.C. Practice and Procedure, 2d Ed., Vol. 1, s. 1393(1), p. 770. But as indicated by the statute the taking of an account must be necessary. It also seems clear that the accounting taken should have some direct relation to the ultimate disposition of the case.

Pending the trial and final determination of the issues in an action for alimony without divorce, the wife may apply to the court for reasonable subsistence and attorney's fees to be secured from the husband's estate or earnings, according to his condition and circumstances; any allowance ordered may be modified or vacated at any time, on the application of either party. G.S. § 50-16. The purpose of the allowance for attorney's fees is to put the wife on substantially even terms with the husband in the litigation. Mercer v. Mercer, 253 N.C. 164, 116 S.E.2d 443. The amount of the allowance for subsistence pendente lite is for the trial judge. He has full power to act without the intervention of a jury and his discretion in this respect is not reviewable, except in case of manifest abuse of discretion. Mercer v. Mercer, supra; Fogartie v. Fogartie, 236 N.C. 188, 72 S.E.2d 226. The granting of an allowance and the amount thereof does not necessarily depend upon the earnings of the husband. One who has no income, but is able-bodied and capable of earning, may be ordered to pay subsistence. Muse v. Muse, 84 N.C. 35.

The provision for temporary subsistence pending the trial on the merits does not involve an accounting between husband and wife. It is not designed to determine property rights or to finally ascertain what alimony the wife may be entitled to in the event she prevails on the merits. Its purpose is to give her reasonable subsistence pending trial and without delay. The matter may be heard on affidavits. It is not contemplated that the proceeding will be delayed by a slow and costly reference involving the examination of records in many different locations and in other States. From an examination of the evidence and information before the court below, it does not appear that a reference was necessary. The facts to be found by such reference would have no lasting value and would not be binding upon the court at a final hearing. The fortunes of business change. The temporary order of alimony may be modified or vacated at any time on motion. Quaere: Would it be proper to order a reference upon each hearing for modification for change of condition?

We do not exclude the possibility that a case might arise in which a mandatory reference might be proper in a proceeding for alimony pendente lite. But such procedure is contrary to the course and practice of our courts.

Plaintiff cites Cram v. Cram, 116 N.C. 288, 21 S.E. 197, in support of the order made. This was an action for alimony without divorce. The Court said: "(W)here facts are found or admitted which entitle a wife to a statutory allowance for support, it becomes the duty of the judge, as in the case of fixing the amount of alimony, to either hear evidence himself or to order a reference to ascertain such facts, as to the income of the husband, the value of his estate, etc., as will enable him to determine what is `a reasonable subsistence, according to his (the husband's) condition and circumstances,' as the statute declares `it should be lawful for such judge' to do." 116 N.C. at pages 295-296, 21 S.E. at page 198. In this case there had been a final hearing on the merits and it had been determined that the wife was entitled to alimony. The cause had been retained for determination of the amount of alimony. Pending this determination defendant had appealed. We express no opinion as to whether the dicta in that case should be adopted as a rule of law in this jurisdiction. Suffice to say that the Cram case did not involve alimony pendente lite.

The court has jurisdiction of the parties and has plenary power and authority to require the disclosure of any information within their knowledge or available to them bearing upon a temporary allowance. It is not necessary that the parties agree as to what the husband's income is. The findings of the court will not be disturbed if based on competent evidence. Mercer v. Mercer, supra.

The order is vacated and the cause is remanded for further proceedings in accordance with law.

Reversed and remanded.