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WEBB, Judge. We hold it was error not to dismiss the action to enforce the separation agreement. A judgment by confession had been entered against the defendant pursuant to G.S. 1A-1, Rule 68.1. This gave the plaintiff a judgment on all issues raised in the complaint. See Cromer v. Cromer, 49 N.C. App. 403, 271 S.E. 2d 541 (1980), rev’d on other grounds, 303 N.C. 307, 278 S.E. 2d 518 (1981) and Whitehead v. Whitehead, 13 N.C. App. 393, 185 S.E. 2d 706 (1972). When the relief sought in an action has been granted, the action should be dismissed. See In re Peoples, 296 N.C. 109, 250 S.E. 2d 890 (1978) and Crew v. Thompson, 266 N.C. 476, 146 S.E. 2d 471 (1966). The judgment by confession purported to grant custody of the child to the plaintiff. This judgment did not deprive the district court of jurisdiction to determine custody, Winborne v. Winborne, 41 N.C. App. 756, 255 S.E. 2d 640 (1979), cert. denied, 298 N.C. 305, 259 S.E. 2d 918 (1979), but the parties, having agreed to it, were bound by its provisions until the court made some order for custody. See Fuchs v. Fuchs, 260 N.C. 635, 133 S.E. 2d 487 (1963). The judgment by confession placed the custody issue before the court so that it retained jurisdiction to determine custody. It was error not to abate the subsequent action for custody. See 1 Strong’s N.C. Index 3d, Abatement § 3 (1976) and the cases cited therein for a discussion of the abatement of an action when the same parties have the same cause of action pending. The court upon remand may determine whether the defendant is in contempt of court for violating the judgment by confession.
The defendant also assigns error to the award of attorney fees to the plaintiff. We believe this assignment of error has merit. The court did not find as a fact that the plaintiff did not have sufficient means to defray the expenses of counsel. It was error to award counsel fees without such a finding. See Hudson v. Hudson, 299 N.C. 465, 263 S.E. 2d 719 (1980).
*818 The defendant also assigns error to the court’s finding him in contempt for being late to court. We believe this assignment of error has merit. The court punished the defendant summarily for contempt. G.S. 5A-14 requires that before the court may punish a person summarily for contempt, the court must give the person “summary notice of the charges and a summary opportunity to respond . . . .” The record discloses that no notice or opportunity to respond was given to the defendant. It was error to hold him in contempt.We reverse and remand for an order consistent with this opinion.
Reversed and remanded.
Chief Judge MORRIS and Judge WHICHARD concur.
Document Info
Docket Number: No. 8118DC1237
Judges: Morris, Webb, Whichard
Filed Date: 9/21/1982
Precedential Status: Precedential
Modified Date: 11/11/2024