Cox v. Cox , 33 N.C. App. 73 ( 1977 )

234 S.E.2d 189 (1977) 33 N.C. App. 73

Robert Harrison COX, Jr.
v.
Nella Faye Mayberry COX.

No. 7618DC780.

Court of Appeals of North Carolina.

April 20, 1977.

Gerald C. Parker, Greensboro, for plaintiff-appellant.

Cahoon & Swisher by Robert S. Cahoon, Greensboro, for defendant-appellee.

CLARK, Judge.

Plaintiff's appeal from the order of 14 June 1976 raises the following issue: Is the finding of the trial court that defendant selected appraiser Pickett as her own appraiser and not as a member of the three-man appraisal team supported by the evidence?

This finding and conclusion by the trial court is supported by the testimony of the defendant-wife and appraiser Pickett. In a hearing before the trial judge without a jury, the findings of fact are conclusive on appeal if there is evidence to support them, even though evidence may sustain findings to the contrary. G.S. 1A-1, Rule 52(a)(1); Williams v. Insurance Co., 288 N.C. 338, 218 S.E.2d 368 (1975); Brooks v. Brooks, 12 N.C.App. 626, 184 S.E.2d 417 (1971); Shuford, N.C. Civil Practice and Procedure § 52-7 (1975).

Plaintiff's appeal from the order of 29 July 1976 raises the following issue: Does the appeal from the order concerning the appraisal deprive the court of jurisdiction over support payments? In its order of 30 July 1976 the trial court ruled as a matter of law that the appeal by plaintiff from the appraisal matter divested the court of jurisdiction to hear plaintiff's motion to reduce child support payments. The court erred in so concluding. Under G.S. 1-294 an appeal stays further proceedings "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." It appears that the appraisal matter on the one hand and the reduction of support matter on the other are different and unrelated matters, and the appeal from the order relating to the appraisal did not divest the trial court of jurisdiction to hear and determine the plaintiff's motion for reduction of support. In Herring v. Pugh, 126 N.C. 852, 858, 36 S.E. 287, 289 (1900), the court stated: "And besides, section 558 of the Code is itself in language too plain to admit of a doubt that the court in which the judgment was rendered still retains jurisdiction to hear motions and grant orders, except such as concern the subject-matter of the suit." And see Manufacturing Co. v. Arnold, 228 N.C. 375, 45 S.E.2d 577 (1947). G.S. 1A-1, Rule 62(d) providing for stay of execution pending appeal is, by its own terms, subject to the conditions of G.S. 1-294 and other designated statutes relating to appeal.

The order of 14 June 1976 is

Affirmed.

The order of 29 July 1976 is

Reversed, and this cause is remanded.

BRITT and HEDRICK, JJ., concur.