Webber v. Webber

232 S.E.2d 865 (1977) 32 N.C. App. 572

Doris Wells WEBBER
v.
Charles Ronald WEBBER.

No. 7626DC742.

Court of Appeals of North Carolina.

March 16, 1977.

William O. Austin, III, Charlotte, for plaintiff-appellee.

Curtis & Millsaps by Joe T. Millsaps, Charlotte, for defendant-appellant.

HEDRICK, Judge.

Defendant first argues that the North Carolina District Court had no authority to enter the judgment awarding plaintiff alimony since when the award was made defendant had already obtained a valid judgment of divorce in Georgia. This argument is untenable because it ignores G.S. 50-11(d) which provides,

"A divorce obtained outside the State in an action in which jurisdiction over the person of the dependent spouse was not obtained shall not impair or destroy the right of the dependent spouse to alimony as provided by the laws of this State."

Next defendant contends that G.S. 50-11(d) is inapplicable and that the judgment of the Georgia Court is res judicata as to all matters dealt with by that court because personal jurisdiction was obtained over the plaintiff. Defendant argues that personal jurisdiction was obtained over plaintiff because she made a "general appearance" in the Georgia proceeding when plaintiff's attorney, with her consent and authority, "negotiated" with defendant's attorney to obtain a quitclaim deed to the residence in North Carolina and a power of attorney to transfer the title of the automobile to plaintiff.

"A general appearance is one where the defendant either enters an appearance in a proceeding in personam without limiting the purposes for which he appears or where he asks for relief which the court can given only if it has jurisdiction over him." 1 Lee, North Carolina Family Law § 98, at 377 (3rd ed. 1963). It is obvious, therefore, that the plaintiff did not make a general appearance in the Georgia action.

Citing 1 Lee, North Carolina Family Law § 98 (3rd ed. 1963), defendant next asserts that the court erred "in failing to find that plaintiff is estopped from asserting further claims to alimony or child support." Professor Lee states the rule upon which defendant relies as follows: "One seeking relief from a divorce decree, either domestic or foreign, may, by reason of his conduct subsequent to the rendition of the decree, be estopped from attacking it. A person cannot attack a divorce decree after using the benefits which it confers." Id. at 388 (footnote omitted). In the present case plaintiff has not used any benefit conferred under the Georgia divorce decree, and has taken no action subsequent to the rendition of the decree that would estop her from claiming alimony or child support. Indeed plaintiff brought her action for alimony on the very day that defendant's proceeding was commenced in Georgia.

Neither is plaintiff barred from maintaining the North Carolina action for alimony and child support by the doctrine of "equitable estoppel." "Equitable estoppel is defined as `the effect of the voluntary conduct of a party whereby he is absolutely precluded, both at law and in equity, from asserting rights which might perhaps have otherwise existed, either of property, of contract, or of remedy, as against another person who in good faith relied upon such conduct, and has been led thereby to change his position for the worse, and who on his part acquires some corresponding right either of contract or of remedy. This estoppel arises when one by his acts representations, or admissions, or by his silence when he ought to speak out, intentionally or through culpable negligence induces another to believe certain facts to exist and such other rightfully relies and acts on such belief, so that he will be prejudiced if the former is permitted to deny the existence of such facts.'" In re Bank v. Winder, 198 N.C. 18, 20, 150 S.E. 489, 491 (1929) (Citation omitted).

In the present action plaintiff represented to the defendant that she would not contest the Georgia divorce if he would convey the house and car to her. Plaintiff has not contested the Georgia divorce. In the present action she is simply asserting her right to alimony and child support. We hold plaintiff is not estopped from maintaining the present action.

Defendant by assignments of error 11 and 18, based upon exceptions 14 and 21, contends the court erred in finding and concluding that the defendant abandoned plaintiff and because of such abandonment plaintiff is entitled to alimony pendente lite. Defendant argues that the conclusion is not supported by the findings of fact and that the findings are not supported by the evidence. Suffice it to say the record is replete with evidence supporting the judge's finding of fact that the defendant abandoned the plaintiff, and this finding supports the conclusion that the plaintiff is entitled to alimony pendente lite. These assignments of error have no merit.

Assignments of error 7-10, 12-13, 19-22, and 24-31 raise questions already discussed and are without merit.

Finally, based on assignment of error 1, defendant asserts the trial court erred in asking certain questions of the defendant regarding the proceedings in Georgia. The information sought by the questions challenged by this exception was relevant and material to the numerous jurisdictional questions raised by the defendant. This assignment of error has no merit.

The order appealed from is

Affirmed.

BRITT and CLARK, JJ., concur.