O'Hara v. O'Hara , 46 N.C. App. 819 ( 1980 )

266 S.E.2d 59 (1980)

Fay Ardyth O'HARA, Plaintiff,
v.
William James O'HARA, Defendant.

No. 7921DC389.

Court of Appeals of North Carolina.

May 20, 1980.

Wilson & Redden by Alice Eller Patterson, Winston-Salem, for plaintiff.

White & Crumpler by Harrell Powell, Jr. and G. Edgar Parker, Winston-Salem, for defendant.

WEBB, Judge.

We believe we are governed by the case of Hester v. Hester, 239 N.C. 97, 79 S.E.2d 248 (1953). That case involved an action for alimony without divorce. After an award of alimony pendente lite, the parties resumed the marital relationship. Our Supreme Court held that the resumption of the marital relationship voided the order for alimony pendente lite, but left the case pending with the right of the plaintiff to make another motion for alimony when the parties separated for the second time. We believe the language of Hester makes it applicable to permanent alimony as well as alimony pendente lite. We hold that when the parties in the case sub judice resumed the marital relationship, it voided the order of 4 January 1972 requiring the defendant to pay alimony, and it was error for the court not to grant the defendant's motion.

It may be that plaintiff lost any right to alimony under G.S. 50-11 when the defendant obtained a divorce. The record does not disclose on what ground the defendant obtained the divorce on 31 October 1977. We note that Chapter 817 of the 1977 Session Laws provided as follows:

Section 1. G.S. 50-6, as it appears in the 1976 Replacement of Volume 2A, is amended by adding the following sentences at the end thereof:

"A plea of res judicata or of recrimination with respect to any provision of G.S. 50-5 shall not be a bar to either party obtaining a divorce on this ground: Provided that no final judgment of divorce shall be rendered under this section until the court determines that there are no claims for support or alimony between the parties or that all such claims have been fully and finally adjudicated."

Sec. 2. This act shall become effective August 1, 1977, and shall not affect pending litigation.

If the defendant obtained the divorce under G.S. 50-6 and the divorce action was not pending on 1 August 1977, the divorce judgment may be subject to being set aside. There was an alimony action pending at the time the divorce decree was signed, and the court could not properly have found otherwise.

For the reasons stated in this opinion, we reverse the order of the district court denying defendant's motion to set aside the judgment of 4 January 1972.

Reversed and remanded.

ARNOLD and WELLS, JJ., concur.