Johnson v. Johnson

194 S.E.2d 562 (1973) 17 N.C. App. 398

Janine M. JOHNSON
v.
David A. JOHNSON.

No. 7210DC516.

Court of Appeals of North Carolina.

February 21, 1973.

Smith, Patterson, Follin & Curtis by, Michael K. Curtis, Greensboro, for plaintiff-appellee.

Boyce, Mitchell, Burns & Smith by, Eugene Boyce, Raleigh, for defendant-appellant.

PARKER, Judge.

By this appeal appellant seeks review of a series of orders entered by the trial judge on various dates following a single hearing held on 21 December 1971. The first assignment of error is directed to two of those orders, both dated 25 January 1972. As to these, the record on appeal shows no appeal entries as required by G.S. § 1-280 and the record was not docketed within ninety days after their date as required by Rule 5 of the Rules of Practice of this Court. Nevertheless, in order to pass upon the entire case, we elect to consider this appeal, insofar as review of the orders dated 25 January 1972 is concerned, as a petition for certiorari, allow the petition, and consider the merits of the questions raised by the first assignment of error. In this assignment appellant appears to be seeking review of both of the orders dated 25 January 1972, one of which related to arrearage in payments for child support and the other of which related to arrearage in payments of alimony. However, the arguments and authorities cited in appellant's brief are directed primarily to the legal effect of the decree for absolute divorce upon defendant's obligation to continue to pay alimony to his former wife. Since in this case the divorce decree had no effect whatever upon defendant's continuing obligation to support his minor child, and since no substantial argument has been advanced or authority cited to show error committed in the order of 25 January 1972 finding the amount of and adjudging defendant liable for arrearage in payments for child support, we affirm that order and limit our further consideration of the questions presented under the first assignment as they relate to the order adjudging defendant liable for arrearage in payments of alimony.

At the outset we note that the amendments made to Chapter 50 of the General Statutes by Chapter 1152 of the 1967 Session Laws are not applicable in this case, which was pending when the 1967 Act became effective. Section 9, Chapter 1152, 1967 Session Laws. Therefore, the further references herein to sections of G.S. Chapter 50 will be to those statutes as they existed prior to the 1967 Act. Prior to the 1967 Act G.S. § 50-11 read, in pertinent part, as follows:

"§ 50-11. Effects of absolute divorce. —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 [except in cases not here pertinent] a decree of absolute divorce shall not impair or destroy the right of the wife to receive alimony and other rights provided for her under any judgment or decree of a court rendered before the rendering of the judgment for absolute divorce."

In the present case, before the rendering of the judgment for absolute divorce on 13 April 1971, the court rendered the judgment, dated 4 December 1970. This judgment, which was based upon the jury's verdict answering issues in favor of the plaintiff, was not appealed. This judgment awarded the plaintiff-wife two rights as follows: first, "that the plaintiff be awarded permanent alimony, said amount of permanent alimony to be determined by this Court out of session"; and second "that the alimony pendente lite order in this cause be continued until permanent alimony is awarded by this Court." The order of 25 January 1972 adjudicating the amount by which defendant was in arrears in payments of alimony pendente lite, and which is the subject of his first assignment of error, is clearly based upon the alimony pendente lite award as continued in effect by the second of the rights provided for his wife in the judgment dated 4 December 1970. Since this judgment was rendered before the rendering of the judgment for absolute divorce, the rights thereby provided for the wife could not be impaired or destroyed by the subsequently rendered decree of absolute divorce, G.S. § 50-11, and, defendant remained liable to continue to make the payments under the alimony pendente lite order. Yow v. Yow, 243 N.C. 79, 89 S.E.2d 867.

Appellant contends that the court erred in providing in its 4 December 1970 order that the alimony pendente lite order continue in effect, pointing out that the purpose of such pendente lite orders is to provide support for the wife pending a hearing on the merits, and from this arguing that once such a hearing is held and issues are answered by the jury, the rights of the wife to pendente lite relief should terminate and she should thereafter be entitled only to such permanent relief as the jury's verdict might justify. We find it unnecessary to pass on this contention. If it was error for the court to continue the pendente lite order in effect after the hearing on the merits was completed, defendant may not now avail of such error. No appeal was noted to the judgment of 4 December 1970, and even if erroneous, it became binding on the parties. Moreover, apparently defendant himself continued to recognize as binding the pendente lite order which was continued in effect by the 4 December 1970 judgment, for on 28 December 1970 he moved for a reduction in the amount of alimony pendente lite on the grounds of a change in his circumstances, and it appears he thereafter actually paid all amounts ordered to be paid by the pendente lite order accruing after the 4 December 1970 judgment and up until 13 April 1971, when the divorce decree was rendered. Appellant's first assignment of error is overruled, and both of the orders dated 25 January 1972 are affirmed.

Appellant's second assignment of error is directed to the order dated 21 February 1972 fixing the amount of permanent alimony and directing defendant to pay counsel fees to his former wife's attorney. Appellant contends that the court lacked power to award permanent alimony after the decree for absolute divorce was rendered, citing Yow v. Yow, supra, and contends that this is what the court erroneously attempted to do by its order of 21 February 1972. In the present case, however, unlike the situation in Yow v. Yow, the right of the wife to receive permanent alimony was adjudicated in the judgment dated 4 December 1970, which was rendered before the decree for absolute divorce. The only matter left unresolved as far as the wife's right to receive permanent alimony was concerned, was the fixing of the amount of the monthly payments to be made from time to time by the husband. This question of the amount to be paid from time to time on account of permanent alimony, as distinguished from the question of the wife's underlying right to be awarded permanent alimony, never becomes finally settled in any event so long as both parties live, since the court may always reconsider the question of the amount of such payments in the light of changed circumstances. The right of the wife to be awarded permanent alimony and her right to have the amount thereof determined by the court were rights expressly adjudicated by the 4 December 1970 judgment. These rights, by express mandate of G.S. § 50-11, could not be impaired or destroyed by the subsequently rendered absolute divorce decree.

Appellant's second assignment of error further challenges the order of 21 February 1972 fixing the amount of permanent alimony and awarding attorney fees "for that said Order is based upon findings of fact not supported by the evidence and supported by no evidence." In the order in question the court made a number of detailed findings of fact as to defendant's age, income, properties, and physical and financial ability to pay permanent alimony, as well as making findings as to plaintiff's needs and funds. No exception appears as to any particular finding of fact, the only exception being the one general exception appearing at the end of the order. An exception that the evidence is insufficient to support the findings of the trial court, without exception to a particular finding, is broadside and ineffectual. MacKay v. McIntosh, 270 N.C. 69, 153 S.E.2d 800; King v. Snyder, 269 N.C. 148, 152 S.E.2d 92.

The portion of appellant's second assignment of error challenging the court's power to award counsel fees is also without merit. Shore v. Shore, 15 N.C.App. 629, 190 S.E.2d 666. Appellant's second assignment of error is overruled.

By his third assignment of error appellant attacks the order of 22 February 1972 which directed a partial foreclosure of his deed of trust. He contends that the deed of trust was executed by him pursuant to Judge Copeland's order, which stated that it was for the purpose of securing his compliance with previous orders of the court, and that it was therefore invalid to secure his compliance with any subsequent orders of the court. We do not agree. The express language of the deed of trust which defendant signed and delivered (albeit only after being found guilty of willful contempt of court for refusing to do so for more than two years) provided for its foreclosure if the defendant "shall fail or neglect to abide by the orders of the Courts heretofore entered, or that are hereafter entered." (Emphasis added.) We see no valid reason why defendant should not be bound by the language of the instrument which he signed. Defendant's third assignment of error is overruled.

The orders and judgments appealed from are

Affirmed.

VAUGHN and GRAHAM, JJ., concur.