Pulley v. Pulley

124 S.E.2d 571 (1962) 256 N.C. 600

Helen Elizabeth PULLEY
v.
Charlie Herbert PULLEY.

No. 171.

Supreme Court of North Carolina.

March 28, 1962.

A. Turner Shaw, Jr., Ellis, Godwin & Hooper, Jacksonville, for plaintiff.

Jones, Reed & Griffin, Kinston, for defendant.

DENNY, Chief Justice.

The appellant on this appeal seeks to have us review and reconsider substantially the identical questions presented and decided on the former appeal with respect to the validity of the confessed judgment and the right to have its terms enforced by contempt proceedings. He contends that the court below committed error in not holding that such judgment was merely a consent judgment and not enforceable by contempt proceedings. These questions were considered and determined in the former appeal and decided adversely to the defendant. The opinion became the law of the case and the lower court was bound thereby. Glenn v. City of Raleigh, 248 N.C. 378, 103 S.E.2d 482; Hayes v. City of Wilmington, 243 N.C. 525, 91 S.E.2d 673; Bruce v. O'Neal Flying Service, 234 N.C. 79, 66 S.E.2d 312; Maddox v. Brown, 233 N.C. 519, 64 S.E.2d 864.

In the former opinion, Parker, J., speaking for the Court, said:

"It is to be understood that we are not passing upon the question of the validity of the confessed judgment, and the entry of judgment thereon, if they were assailed by a creditor, or challenged by defendant on the ground of fraud, mistake, or oppression. We place our decision squarely upon the ground that defendant, under all the facts here, is estopped to question the validity of his own confessed judgment for alimony, and of the entry of judgment therefor by the superior court of Onslow County as authorized by him, and to question that the entry of judgment by the court on the confessed judgment is a court order to pay alimony.

"The court below erred in not holding that defendant is estopped to question the validity of his own confessed judgment for alimony, and of the entry of judgment therefor by the court, and to question that the judgment entered by the court on his confessed judgment is an order of court for defendant to pay alimony, and in concluding that they are a mere contract between plaintiff and defendant constituting consent judgments unenforceable by contempt proceedings, and in ordering plaintiff's motion to show cause dismissed. The lower court will issue a show cause order as prayed in plaintiff's motion, and then have a hearing on such order according to law."

The court below, in issuing the order to show cause and in having a hearing thereon, merely followed the directive of this Court in its former opinion.

The remaining question is whether there is sufficient evidence to support the ruling on the court's finding that the defendant's failure to comply with the judgment ordering him to pay the stated sums according to the terms of the confessed judgment to the plaintiff for her support and maintenance, was wilful.

The defendant has not contended that he has been or that he is now financially unable to make these payments. The court below, after hearing the evidence of the plaintiff and the defendant and the arguments of counsel, among other things, found that, on 11 July 1958, when the defendant signed the confession of judgment herein and the judgment was entered on the defendant's confession of judgment, he fully understood what he was signing and the effect of same; "that he understood that the payments referred to in the said confession of judgment and judgment were to continue so long as he and the plaintiff lived and would continue whether or not he obtained a divorce from the plaintiff * * *."

The Court further found that before the confessed judgment was signed, the Clerk of the Superior Court inquired as to whether or not defendant knew that if he confessed judgment he would be liable for contempt if he failed to pay the amounts set out in the confessed judgment and the judgment entered pursuant thereto; that the defendant said he understood the judgment and further stated that it had been explained to him by the attorney.

In our opinion, the evidence is sufficient to support the findings of the court below and that such findings are sufficient to support the order entered, and we so hold.

The order adjudging the defendant in contempt, and imposing a prison sentence, and providing that the defendant may purge himself of the contempt in the manner prescribed in the order, is

Affirmed.

SHARP, J., took no part in the consideration or decision of this case.