Teague v. Teague

146 S.E.2d 87 (1966) 266 N.C. 320

Martha Laughlin TEAGUE
v.
Roger Edgar TEAGUE.

No. 706.

Supreme Court of North Carolina.

January 14, 1966.

B. Gordon Gentry, Greensboro, for plaintiff appellee.

Cahoon & Swisher, by Robert S. Cahoon, James L. Swisher, Greensboro, for defendant appellant.

HIGGINS, Justice.

The record is far from satisfactory. For example, Judge Gambill seems to have concluded that the exceptions and notice of appeal served on the plaintiff and her counsel on April 27 were sufficient to remove the case from the Superior Court to this Court. Actually, appeal notice was not given at the time the order was entered. G.S. §§ 1-279 and 1-280, when construed together, required the defendant to serve notice of the appeal within 10 days. "The provisions are jurisdictional and unless complied with this Court acquires no jurisdiction of the appeal and must [be dismissed]." Aycock v. Richardson, 247 N.C. 233, 100 S.E.2d 379. Since this Court acquired no jurisdiction, the case was still in the Superior Court and the attempted appeal was subject to be dismissed there. Judge Shaw's order to that effect was not error. Walter Corp. v. Gilliam, 260 N.C. 211, 132 S.E.2d 313.

The complaint states a cause of action under G.S. § 50-16 and complies fully with the authorities in this jurisdiction. Murphy v. Murphy, 261 N.C. 95, 134 S.E.2d 148; Deal v. Deal, 259 N.C. 489, 131 S.E.2d 24; Creech v. Creech, 256 N.C. 356, 123 S.E.2d 793; Bailey v. Bailey, 243 N.C. 412, 90 S.E.2d 696; Ollis v. Ollis, 241 N.C. 709, 86 S.E.2d 420; Lee's N.C. Family Law, Vol. 1, § 80. The demurrer ore tenus which the defendant filed in this Court is overruled.

The affidavits and pleadings before Judge Gambill furnish ample proof of the needs of the plaintiff and the children, the ability and the failure of the defendant to make reasonable provision for them. The evidence establishes the plaintiff's suitability for the custody of the children. The court, it is true, did not make detailed findings of fact. There was no request for such findings and no charge of the plaintiff's unfaithfulness. Griffith v. Griffith, 265 N.C. 521, 144 S.E.2d 589; Harrell v. Harrell, 256 N.C. 96, 123 S.E.2d 220; Byerly v. Byerly, 194 N.C. 532, 140 S.E. 158.

The show cause order issued by and returnable before Judge Gambill was properly issued after the appeal entries had been removed upon the showing that appeal had not been perfected. Nevertheless, the record fails to disclose the defendant had any notice of the transfer before Judge Shaw for hearing, at which neither the defendant nor his counsel was present. He was entitled to notice of the hearing and an opportunity to be heard before a judgment of wilful contempt could be entered against him. He contends he was in Judge Gambill's court according to the order served on him and when Judge Gambill adjourned court without calling his case he went back to work. The sheriff's order of arrest for service of the contempt judgment was his first notice that the proceeding was ever before Judge Shaw. At least these are his contentions. The record here fails to show notice and an opportunity to be heard. The challenge to the judgment on that ground is sustained.

The condition of the record requires that we vacate the order adjudging the defendant in contempt. We find no error in the record otherwise. When the cause is returned to the Superior Court it may be disposed of in the manner approved by this Court in Joyner v. Joyner, 256 N.C. 588, 124 S.E.2d 724.

Order of contempt reversed.

The proceeding in other particulars is affirmed.