Stancil v. Stancil , 255 N.C. 507 ( 1961 )

121 S.E.2d 882 (1961) 255 N.C. 507

Margaret STANCIL
v.
John W. STANCIL.

No. 170.

Supreme Court of North Carolina.

October 11, 1961.

Joseph C. Olschner, Jacksonville, for defendant appellant.

James R. Strickland, Ellis, Godwin & Hooper, Jacksonville, for plaintiff appellee.

DENNY, Judge.

The appellant in his case on appeal undertakes to set out six assignments of error. However, no exceptions appear anywhere in the record, not even under the purported assignments of error. Even so, in the absence of any exceptions, or when exceptions have not been preserved in accordance with the requirements of our Rules, the appeal will be taken as an exception to the judgment. Holden v. Holden, 245 N.C. 1, 95 S.E.2d 118; Barnette v. Woody, 242 N.C. 424, 88 S.E.2d 223. Therefore, in view of the state of the record on this appeal, we are limited to the question whether or not error appears on the face of the record.

Where no exceptions have been taken to the admission of evidence or to the findings of fact, such findings are presumed to be supported by competent evidence and are binding on appeal. City of Goldsboro v. Atlantic Coast Line R. R. Co., 246 N.C. 101, 97 S.E.2d 486; James v. Pretlow, 242 N.C. 102, 86 S.E.2d 759; Beaver v. Crawford Paint Co., 240 N.C. 328, 82 S.E.2d 113; Donnell v. Cox, 240 N.C. 259, 81 S.E.2d 664.

The defendant argues and contends that a contempt proceeding cannot be based on a consent judgment. Holden v. Holden, supra; Stanley v. Stanley, 226 N.C. 129, 37 S.E.2d 118; Brown v. Brown, 224 N.C. 556, 31 S.E.2d 529; Davis v. Davis, 213 N.C. 537, 196 S.E. 819. An examination of these and similar cases reveals that the husband's obligation to make certain payments was based upon a contract merely sanctioned by the court and the court did not order the payments to be made as it did in the instant case.

Our cases hold that although a judgment may be entered by consent, based on a written agreement, if such judgment orders and decrees that the husband shall pay certain sums as alimony for the support of his wife, a wilful refusal to make the payments as directed therein will subject the husband to a proper proceeding to attachment for contempt. Dyer v. Dyer, 212 N.C. 620, 194 S.E. 278; Davis v. Davis, supra; Edmundson v. Edmundson, 222 N.C. 181, 22 S.E.2d 576; Smith v. Smith, 247 N.C. 223, 100 S.E.2d 370.

It will be noted in Davis v. Davis, supra, and Holden v. Holden, supra, the judgment entered in these respective cases did not order and direct the husband to pay anything, but merely recited what the parties had agreed upon. Hence, these and similar cases do not control the factual situation revealed on this record.

In the instant case, the court ordered that the defendant "pay to the plaintiff alimony and subsistence for herself the sum of $250.00 per month, beginning March 14, 1960, and continuing on the 14th day of each month thereafter until final determination of this action * * *."

The record does not reveal that the defendant has made any motion for a reduction of the amount of alimony or subsistence, by reason of inability to pay or for any other reason.

The case of Webster v. Webster, 213 N.C. 135, 195 S.E. 362, cited by the appellant, contains language that would seem to support the defendant's position. However, an examination of that opinion reveals that the appeal merely involved a construction of the provisions of the consent judgment with respect to the rights of the parties. The question of contempt was not before this Court, and what was said in the opinion with respect to the judgment being nothing more than a contract between the parties, was mere dictum, and we so hold.

In our opinion, the facts found by the court below are sufficient to support the judgment entered, and no errors appear upon the face of the record which would warrant a reversal or a further hearing.

The judgment of the court below is

Affirmed.