Deaton v. Deaton , 237 N.C. 487 ( 1953 )

75 S.E.2d 398 (1953) 237 N.C. 487

DEATON
v.
DEATON.

No. 388.

Supreme Court of North Carolina.

April 8, 1953.

R. Furman James, Concord, for plaintiff, appellee.

Hartsell & Hartsell, William L. Mills, Jr. and E. Johnston Irvin, Concord, for defendant, appellant.

ERVIN, Justice.

The appeal presents this question for decision: Does a decree of absolute divorce obtained by the wife under the two-year separation statute codified as G.S. § 50-6 annul the right of the wife to receive permanent alimony under a judgment rendered in an action for alimony without divorce before the commencement of the proceeding for absolute divorce?

The plaintiff asserts that this question ought to be answered in the negative. To sustain her position, she lays hold on the second proviso in the statute embodied in G.S. § 50-11 and cites these decisions: Simmons v. Simmons, 223 N.C. 841, 28 S.E. 2d 489; Dyer v. Dyer, 212 N.C. 620, 194 S.E. 278; Howell v. Howell. 206 N.C. 672, 174 S.E. 921; and Lentz v. Lentz, 193 N.C. 742, 138 S.E. 12. G.S. § 50-11 is couched in this language: "After a judgment of divorce from the bonds of matrimony, all rights arising out of the marriage shall cease and determine, and either party may marry again unless otherwise provided by law: Provided, that no judgment of divorce shall render illegitimate any children in esse, or begotten of the body of the wife during coverture; and, provided further, that a decree of absolute divorce upon the ground of "separation for two successive years as provided in § 50-5 or § 50-6 shall not impair or destroy the right of the wife to receive alimony under any judgment or decree of the court rendered before the commencement of the proceeding for absolute divorce."

The defendant insists that the question raised by the appeal should be answered in the affirmative. He argues that the cases invoked by the plaintiff do not decide this precise question; that the right of the wife to alimony stems from the marital obligation of the husband to support her; that it is unjust and contrary to public policy for the wife to receive alimony from the husband after she has put an end to the marital relation by procuring a decree of absolute divorce; and that the legislature intended the second proviso of G.S. § 50-11 to protect a prior award of alimony only in case the decree of absolute divorce is obtained by the husband.

We are inclined to accept as valid the contention of the defendant that the decisions cited by the plaintiff do not adjudicate the precise question now before us. The decrees of absolute divorce involved in the Simmons, Dyer, and Howell cases were procured by husbands rather than by wives. The decision in the Lentz case that the subsequent decree of absolute divorce obtained by the wife did not invalidate a prior consent judgment obligating the husband to make certain future payments for the benefit of the wife was rested squarely on the proposition that the consent judgment constituted a contract between the husband and wife and stipulated in express terms that nothing short of the remarriage of the wife should relieve the husband of the obligation to make the specified payments.

We are unable, however, to reconcile the contentions of the defendant respecting legislative intent and public policy with the wording of the second proviso in G.S. 50-11. The General Assembly inserted the second proviso in the statute for the purpose of taking the special cases mentioned in such proviso out of the general enactment that a decree of absolute divorce puts an end to all rights arising out of the marriage. Cameron v. Highway Commission, 188 N.C. 84, 123 S.E. 465. In so doing, the General Assembly expressed in unambiguous language its plain purpose that a subsequent decree of absolute divorce obtained by either the husband or the wife upon the ground of separation for two successive years as provided in G.S. § 50-5 or G.S. § 50-6 shall not impair or destroy the right of the wife to receive alimony from the husband under any judgment of the court rendered before the commencement of the proceeding for absolute divorce. We can not attribute any other meaning to the proviso without usurping a legislative power denied to us by our organic law. 50 Am.Jur., Statutes, section 228. Where the General Assembly has spoken in a constitutional manner, public policy is what the General Assembly has declared that policy to be. Batesville Casket Co. v. Fields, 288 Ky. 104, 155 S.W. 2d 743; Park Const. Co. v. Independent School Dist. No. 32, Carver County, 209 Minn. 182, 296 N.W. 475, 135 A.L.R. 59; State v. Lincoln County Power Dist. No. 1, 60 Nev. 401, 111 P.2d 528. This being so, public policy respecting the effect of decrees of absolute divorce is to be found in the second proviso of G. S. § 50-11 as well as in the general enactment which the proviso qualifies.

Whether a statute produces a just or an unjust result is a matter for legislators and not for judges. We are nevertheless constrained to observe that justice does not necessarily require that a faithless husband shall be relieved of all responsibility for the support of an innocent wife who has spent her youth in his service merely because the wife sees fit to put an end in law to a marriage long since ended in fact by his broken vows.

What has been said necessitates an affirmance of the order refusing to vacate the alimony judgment.

Affirmed.