Streeter v. Streeter , 33 N.C. App. 679 ( 1977 )

236 S.E.2d 185 (1977) 33 N.C. App. 679

James Rudolph STREETER
v.
Betty Jean Corey STREETER.

No. 763DC906.

Court of Appeals of North Carolina.

July 20, 1977.

Laurence S. Graham, Greenville, for plaintiff-appellant.

Blount, Crisp & Grantmyre by Nelson B. Crisp, Greenville, for defendant-appellee.

PARKER, Judge.

Plaintiff made twelve assignments of error. He discusses only the first four of these in his brief. The rest are deemed abandoned. Rule 28(a), Rules of Appellate Procedure.

In his first assignment of error plaintiff challenges the court's conclusion that there had been "no laches on the part of the defendant who hoped for a reconciliation of her marriage and had no money for attorney's fees." We find no error.

Laches is an affirmative defense, G.S. 1A-1, Rule 8(c), which in this case was plaintiff's burden to prove. Plaintiff has neither alleged nor offered any evidence to prove that he has been prejudiced by defendant's delay in seeking to enforce her rights. "[I]n the absence of such showing the benefits of the defense of laches may not be invoked." Holt v. May, 235 N.C. 46, 50, 68 S.E.2d 775, 778 (1952). On competent evidence the court made findings that "[t]he defendant is substantially in need of maintenance and support from the plaintiff in that she must borrow money to meet her fixed monthly expenses and has no one else upon whom she may depend for support and does in fact need additional support to supplement the Two Hundred Sixty and No/100 Dollars ($260) per month she receives as disability payments." On competent evidence the court also found the facts as to plaintiff's earnings and his ability to support the defendant. Plaintiff does not challenge these factual findings nor does he question the court's conclusions that defendant is the dependent spouse and plaintiff the supporting spouse. Plaintiff's sole contention in support of his first assignment of error seems to be that the mere lapse of nine years between 1966, when he quit furnishing support, and 1975, when defendant first asserted in court her claim for support, constituted laches as a matter of law. We do not agree.

"There is no express statute of limitations in North Carolina relating to the commencement of actions for alimony or support. Since the obligation of the husband to furnish support to his wife and minor children is a continuing one, it would seem that a mere lapse of time alone should not be a bar to the commencement of the action." 2 Lee, N.C. Family Law, § 164, p. 269.

Authorities elsewhere are in accord.

"Generally, a wife's right to maintain an action for separate maintenance is not lost by mere lapse of time before bringing the action, since such a cause of action is a continuing one, and not affected by lapse of time." Annot., 10 A.L.R. 2d 466, 544 (1950).

We hold that the mere delay by the dependent spouse in seeking maintenance from the supporting spouse, absent any showing of prejudice to the supporting spouse resulting from the delay, does not bar the dependent spouse's action to enforce the right to support. See Nall v. Nall, 229 N.C. 598, 50 S.E.2d 737 (1948). Defendant's first assignment of error is overruled.

Plaintiff's second assignment of error is directed to the court's denial of his motion for judgment notwithstanding the verdict. Plaintiff made no motion for a directed verdict. The timely making of an appropriate motion for a directed verdict is an absolute prerequisite for the motion for judgment notwithstanding the verdict. Glen Forest Corp. v. Bensch, 9 N.C.App. 587, 176 S.E.2d 851 (1970). Plaintiff's second assignment of error is overruled.

Plaintiff's third assignment of error is directed to "[t]he finding of fact by the Court that the attorney for the plaintiff agreed that the question of laches would be determined solely by the Judge." The judgment appealed from contains the following recitation:

"It was agreed that the issues of amount of permanent alimony, if any; who is the dependent and who is the supporting spouse; and whether or not the grounds for an absolute divorce are proved would be questions to be determined by the Judge, as well as the issue of laches."

The record supports this recitation. Under G.S. 1A-1, Rule 49(c), absent a timely demand made before the jury retires that an issue of fact raised by the pleadings or by the evidence be submitted to the jury, the judge may make a finding or if he fails to do so, he shall be deemed to have made a finding in accord with the judgment entered. Here, plaintiff failed to make such a demand, and in his brief plaintiff's counsel admits that he agreed that no issue of laches would be submitted to the jury. This assignment of error is overruled.

Plaintiff's fourth assignment of error is directed to some of the detailed findings of fact made by the court. He contends that in making these findings the court "usurped authority which rests in the hands of the jury." However, the findings to which plaintiff excepts were made by the court after the jury had returned its verdict. They were not inconsistent with the jury's verdict. If some of them may not have been necessary to determination of the issues which were before the court to decide, plaintiff has shown no prejudice. Such findings may be treated as surplusage. The appropriate findings which the court made were fully supported by competent evidence and support the court's conclusions and the judgment entered.

The judgment appealed from is

Affirmed.

MORRIS and CLARK, JJ., concur.