DocketNumber： 7526DC977
Citation Numbers： 223 S.E.2d 845, 29 N.C. App. 209
Judges： Arnold, Hedrick, Morris
Filed Date： 4/21/1976
Status： Precedential
Modified Date： 8/22/2023
Court of Appeals of North Carolina.
*847 W. J. Chandler, Charlotte, for plaintiff appellee.
James J. Caldwell, Charlotte, for defendant appellant.
HEDRICK, Judge.
The appeal from the order dated 24 July 1975 is subject to dismissal since the order is clearly interlocutory, and even if valid, does not deny defendant a substantial right. G.S. 1-277; G.S. 7A-27; Funderburk v. Justice, 25 N.C.App. 655, 214 S.E.2d 310 (1975).
Even though the appeal from the order of 24 July must be dismissed, we must determine the validity of that order along with the order of 24 June 1975 to resolve the questions raised by the appeal from the order of 9 September 1975 holding the defendant in contempt.
G.S. 50-16.3(a) provides:
"Grounds for alimony pendente lite. (a) A dependent spouse who is a party to an action for absolute divorce, divorce from bed and board, annulment, or alimony without divorce, shall be entitled to an order for alimony pendente lite when:
(1) It shall appear from all the evidence presented pursuant to G.S. 50-16.8(f), that such spouse is entitled to the relief demanded by such spouse in the action in which the application for alimony pendente lite is made, and
(2) It shall appear that the dependent spouse has not sufficient means whereon to subsist during the prosecution or defense of the suit and to defray the necessary expenses thereof."
G.S. 50-16.7(a) in pertinent part provides:
"How alimony and alimony pendente lite paid; . . ..(a) Alimony or alimony pendente lite shall be paid by lump sum payment, periodic payments, or by transfer of title or possession of personal property or any interest therein, or a security interest in or possession of real property, as the court may order. * * *"
The order dated 9 September holding the defendant in contempt was based on the finding that the defendant was "in violation of the prior Orders of the court." Obviously this finding refers to the orders of 24 June and 24 July 1975.
Since the action was for alimony and the motion wherein the orders entered was for alimony pendente lite, we assume that the order transferring possession of the specific items and articles of personal property was an attempt by the judge to award the plaintiff alimony pendente lite by giving her possession of the personal property. However, the orders specifically concluded that the plaintiff was not entitled to alimony pendente lite, and the facts found by the judge support that conclusion. Having determined as a matter of law that the plaintiff was not entitled to alimony pendente lite, the District Court in this proceeding and on this record had no authority to order a transfer of the possession of the personal property described in the orders to the plaintiff. The orders of 24 June and 24 July 1975 are invalid on the face of this record.
An invalid judgment or order may not be the basis of a proceeding in contempt. In re Burton, 257 N.C. 534, 126 S.E.2d 581 (1962); Patterson v. Patterson, 230 N.C. 481, 53 S.E.2d 658 (1949); In re Longley, 205 N.C. 488, 171 S.E. 788 (1933). Thus, since the orders dated 24 June and 24 July 1975, which the court found the defendant had failed to comply with, were not *848 lawfully issued and are invalid as a matter of law, the judgment finding and holding the defendant in contempt and ordering him to be imprisoned for 30 days is likewise invalid and must be vacated.
The result is: The appeal from the order dated 24 July 1975 is dismissed; the order dated 9 September is vacated.
Dismissed in part; Vacated in part.
MORRIS and ARNOLD, JJ., concur.