Webb v. Webb , 50 N.C. App. 677 ( 1981 )

274 S.E.2d 888 (1981)

Sandra Hines WEBB
v.
Sonny Boy WEBB.

No. 802DC601.

Court of Appeals of North Carolina.

February 17, 1981.

Stephen A. Graves, Washington, for plaintiff-appellee.

No counsel for defendant-appellant.

HEDRICK, Judge.

G.S. § 1-294 in pertinent part provides:

When an appeal is perfected as provided by this article it stays all further proceedings in the court below upon the judgment appealed from, or upon the matter embraced therein; but the court below may proceed upon any other matter included in the action and not affected by the judgment appealed from.

An appeal in a domestic action removes the cause to the appellate court and the trial court is functus officio until the validity of the judgment is determined; thus, the trial court is without jurisdiction, pending the appeal, to punish the husband in contempt for failing to comply with the judgment appealed from and its findings and order to that effect are void. Joyner v. Joyner, 256 N.C. 588, 124 S.E.2d 724 (1962); accord, Collins v. Collins, 18 N.C.App. 45, 196 S.E.2d 282 (1973); Upton v. Upton, 14 N.C.App. 107, 187 S.E.2d 387 (1972). The trial court is likewise without jurisdiction to proceed upon the very matters which were embraced in and which were directly affected by the order from which the appeal is taken. Carpenter v. Carpenter, 25 N.C. App. 307, 212 S.E.2d 915 (1975).

Although the record in the case before us is unclear in many respects, it is manifest that Judge Manning was functus officio to entertain plaintiff's motion in the cause seeking to have defendant adjudged in contempt and seeking to have the 25 June 1979 order modified. Obviously, the purported "Withdrawal of Appeal" was made subsequent to any notice to defendant of a hearing on the motion in the cause, and was apparently contemporaneous with the 18 January 1980 filing of the unsigned and undated judgment. We are aware of the fact of the recital in the unsigned and undated judgment filed 18 January 1980 that plaintiff's appeal from the 25 June 1979 order had been withdrawn and the appeal was ineffectual and that the court had jurisdiction; however, there is nothing in this record to support such a recital or to indicate that defendant agreed in any way that the court had jurisdiction to hear plaintiff's motion, amend the former order, or adjudge defendant in contempt. Indeed, defendant's first assignment of error challenges the jurisdiction of the trial court to entertain plaintiff's motion and to enter any order thereon.

In our opinion, all proceedings in the matter were stayed by plaintiff's appeal from the 25 June 1979 order. G.S. § 1-294; Joyner v. Joyner, supra; Carpenter v. Carpenter, supra.

The order filed 18 January 1980 is

Vacated.

ROBERT M. MARTIN and CLARK, JJ., concur.