Lawson v. Lawson , 244 N.C. 689 ( 1956 )

94 S.E.2d 826 (1956) 244 N.C. 689

Ruby Matthews LAWSON
v.
Powell Dennis LAWSON.

No. 397.

Supreme Court of North Carolina.

October 31, 1956.

Elledge & Johnson, Winston-Salem, for plaintiff appellee.

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

PER CURIAM.

Defendant predicates his appeal on the failure of the court to find the facts in conformity with a judgment tendered by him; and the asserted failure to make any finding with respect to the adultery of the wife. One of the requested findings is that plaintiff committed adultery. The others are merely evidentiary and do not purport to do more than suggest plaintiff's adultery.

Defendant has the burden of establishing his plea of the adultery of the wife. Judge Johnston finds that defendant has failed to carry the burden. The wife's right to alimony is not defeated till the adultery is established; and because the adultery has not been established, plaintiff is not deprived of alimony pendente lite, counsel fees, and custody of the child as directed by the order.

Defendant demurred here for that the complaint failed to state a cause of action. The demurrer is overruled. Plaintiff alleges, inter alia, that defendant separated himself from his wife and child and failed to provide them with necessary subsistence; that she was forced under threats of physical violence to sign a separation agreement; that he has repeatedly threatened to beat her; that he has on numerous occasions and in the presence of sundry persons falsely charged her with adultery, claiming that he is not the father of the child she is now carrying; that he has forced her to seek employment and has, by force, required her to turn over to him the largest part of her earnings. The allegations of the complaint, if established on the trial, are sufficient to base an award of alimony.

Defendant gave notice of appeal on June 15. The court allowed him sixty days in which to serve case on appeal, and appellee, thirty days thereafter to serve countercase. By agreement of counsel made within the time fixed for defendant to serve his case on appeal, the time was extended to August 30. The case on appeal was served in due time. On July 23, 1956, plaintiff caused a notice to be served on defendant that she would move on July 28 for an order attaching defendant for contempt for wilful failure to comply with the order of June 14. Pursuant to this notice, a hearing was had before Judge Johnston. He found that defendant had wilfully and intentionally refused to comply with the order of June 14, 1956. The court ordered defendant committed to jail until he complied with the order of June 14, 1956. Defendant filed with this Court a petition for a writ of supersedeas. The petition is allowed. The appeal taken by the defendant divested the Superior Court of jurisdiction. The adjudication of contempt and the order of imprisonment are void. They will be vacated. Lawrence v. Lawrence, 226 N.C. 221, 37 S.E.2d 496.

The order of June 14 allowed counsel fees for plaintiff. Thereafter, plaintiff applied to Judge Armstrong, holding the Forsyth courts, for an order for additional counsel fees. Judge Armstrong denied the order for want of jurisdiction as the cause was then pending on appeal to this Court. Plaintiff now files with this Court a motion for the allowance of additional counsel fees. The motion is denied without prejudice to the right of plaintiff to apply to the Superior Court when it has jurisdiction for such counsel fees as are just and proper.

The judgment appealed from is

Affirmed.

JOHNSON, J., not sitting.