Howell v. Howell, 206 N.C. 672 (1934)

June 20, 1934 · Supreme Court of North Carolina

206 N.C. 672

MRS. ANNIE P. HOWELL v. C. S. HOWELL.

(Filed 20 June, 1934.)

Divorce E c — Decree of absolute divorce on ground of separation held not to affect prior order for alimony without divorce.

In the wife’s suit against her husband for alimony without divorce under O. S., 1667, an order was entered granting her a stipulated sum monthly. Later the order was modified by a reduction in the amount of the monthly payments, to continue until further order of the court, from which order neither party appealed. Thereafter the husband obtained a decree for absolute divorce upon the grounds of two years separation in a suit instituted in another county, which decree of absolute divorce specifically provided that it was entered without prejudice to the wife’s pending action for alimony without divorce. Held, the decree for absolute divorce did not affect the order for alimony entered in the wife’s action, N. 0. Code, 1663, expressly providing that a decree for absolute divorce on the ground of ten years separation should not destroy the wife’s right to alimony, and the act of 1933, N. C. Code, 1659(a), permitting divorce after two year’s separation being construed in pari materia with sec. 1663.

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

Appeal by defendant from Grady, J., at February Term, 1934, of WaKE.

Affirmed.

The findings of fact and the judgment of tbe court below is as follows: “Tbis cause coming on for bearing upon motion by tbe plaintiff, tbat the defendant be attached for contempt for failing to obey certain orders and decrees heretofore entered in tbis cause, in tbat be had failed to pay to tbe plaintiff moneys ordered paid under a decree of Judge N. A. Sinclair rendered on 24 December, 1932. Tbe defendant denied tbat be was liable to tbe plaintiff in any sum whatever because of the fact tbat heretofore, and since tbe rendition of said judgment by Judge Sinclair, be has been divorced from bis wife, all of wbicb will hereinafter appear. Tbe court finds tbe following facts: On 3 February, 1930, Judge F. A. Daniels entered an order in tbis action reciting tbat: ‘It is, therefore, by consent, ordered tbat tbe said C. S. Howell pay to tbe plaintiff tbe sum of $50.00 as counsel fees and $75.00 per month, beginning on 12 February, 1930, until tbe further order of tbe court/ wbicb judgment is made a part of tbis finding of facts. On 24 December, 1932, upon motion of tbe defendant for a modification of said order, tbe payments of $75.00 per month were reduced to $50.00 per month, beginning with tbe month of December, 1932, and to continue until tbe further order of tbe court, wbicb order was signed by Judge N. A. Sinclair, presiding in "Wake County, to wbicb there was no appeal and no exception entered.

“At tbe July-August Term, 1933, of tbe Superior Court of Chatham County, in an action entitled: Chas. S. Howell against Pearl D. Howell, being tbe identical parties to tbis action, tbe same being an action for divorce brought by tbe present defendant against tbe present plaintiff on tbe ground of two years separation, in wbicb an answer was filed by Mrs. Howell, tbe present plaintiff, admitting tbat tbe parties bad lived separate and apart since 14 October, 1929, but further alleging tbat Chas. S. Howell was responsible for and tbe cause of said separation, and referring to tbe action in tbe Superior Court of Wake County and to tbe orders and decrees entered in said action. Upon issues submitted upon tbe pleadings, judgment was rendered as follows: ‘This cause coming on to be beard before bis Honor, Frank A. D'aniels, judge presiding, and a jury, and tbe following issues having been submitted to tbe jury: (1) Has tbe plaintiff been a resident of Cbatbam County for more than six months and a resident of North Carolina for more than one year prior to tbe date of tbe commencement of tbis action? Answer: Yes. (2) "Was tbe plaintiff married to tbe defendant, as alleged in tbe complaint? Answer: Yes. (3) Has tbe plaintiff and tbe defendant been living separate and apart for more than two years prior to tbe date of tbe institution of tbis action, continuously? Answer: Yes. And tbe jury having answered each of tbe three issues, Yes; it is now, therefore, upon motion of tbe plaintiff, considered, ordered, adjudged and decreed tbat tbe plaintiff, Charlie S. Howell, be, and be is hereby granted an absolute divorce from tbe defendant, and tbe bonds of defendant are hereby dissolved; however, tbis judgment is entered without prejudice to tbe action pending in tbe Superior Court of Wake County, North Carolina, entitled: “Mrs. Pearl D. Howell v. C. S. Howell,” and all orders heretofore made in said action pending in tbe Superior Court of Wake County shall not be affected by tbis judgment. FbaNK A. DaNiels, Judge Presiding

“It will be observed that in. said judgment it is provided that the same is entered without prejudice to the action pending in the Superior Court of Wake County, North Carolina, entitled: 'Mrs. Pearl D. Howell- against C. S. Howell/ and all orders heretofore made in said action pending in the Superior Court of Wake County shall not be affected by this judgment. The complaint, answer, issues, and judgment in said action prosecuted in Chatham County by Charles S. Howell against his wife, Pearl D. Howell, are made a part of these findings of fact and it is ordered that copies of. the same be made a part of the record and case on appeal. Upon the foregoing findings of fact, the court is of the opinion that the orders entered in this cause in the Superior Court of Wake County have not been disturbed by the action in Chatham County but are still in full force and effect, and it is, therefore, ordered that the defendant pay to the plaintiff the amounts of money which he is now due and owing to her under and by virtue of the order of Judge N. A. Sinclair, and that in default of payment of the same he be arrested and committed to jail until he has complied with this order. Done in open court at Raleigh after argument of counsel for the plaintiff and the defendant, this 2 February, 1934.

HeNry A. Grady, Judge Presiding

The defendant excepted and assigned error to the judgment as signed, and appealed to the Supreme Court.

B. L. McMillan for plaintiff.

J. S. Griffin for defendant.

ClaeicsoN, J.

The question involved: Does the decree of absolute divorce in C. S. Howell’s action in Chatham County upon the ground of two years separation impair or destroy Mrs. Howell’s right to receive alimony under a judgment and decree in Mrs. Howell’s action in Wake County rendered before the commencement of the proceeding for absolute divorce on the grounds of separation, the divorce decree reciting that it does not? We think not.

N. 0. Code, 1931 (Michie), sec. 1663, is as follows: “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 a decree of absolute divorce upon the ground of separation for ten successive years as provided in section 1659 shall not impair or destroy the right of the, wife to' receive alimony under any judgment or decree of the court rendered before the commencement of the proceeding for absolute divorce.” (Italics ours.)

1933 Supplement to tbe North Carolina Code of 1931 (Michie), section 1659(a), is as follows: “Divorce after separation of two years on application of either party. — Marriages may be dissolved and the parties thereto divorced from the bonds of matrimony, on application of either party, if and when there has been a separation of husband and wife, either under deed of separation or otherwise, and they have lived separate and apart for two years, and the plaintiff in the suit for divorce has resided in the State for a period of one year. This section shall be in addition to other acts and not construed as repealing other laws on the subject of divorces. 1931, chapter 72, 1933, chapter 163.”

We think that section 1659(a), supra, automatically reduces the time from ten to two years, in section 1663, supra, the two are cognate statutes dealing with similar questions and are to be construed in pari materia. In the present case, the judgment on 3 February, 1930, by Judge Daniels recites “by consent” and “until the further order of the court.” This was modified by Judge Sinclair on 24 December, 1932. The judgment in the Chatham County action of the defendant against plaintiff, granting him a divorce on the ground of separation, before Judge Daniels, July-August Term, 1933, distinctly says: “This judgment is entered without prejudice to the action pending in the Superior Court of Wake County, North Carolina, ' entitled: ‘Mrs. Pearl. D. Howell v. C. S. Howell,’ and all orders heretofore made in said action pending in the Superior Court of Wake County shall not be affected by this judgment.”

It will be noted that plaintiff did not except to the reduction of the monthly allowance in the judgment signed by Judge Sinclair in the present case. The judgment in the present action of Judge Sinclair, remains in full force and effect. Lentz v. Lentz, 193 N. C., 742; Kizer v. Kizer, 203 N. C., 428; Walker v. Walker, 204 N. C., 210; Smithdeal v. Smithdeal, ante, 397. For the reasons given, the judgment of the court below is

Affirmed.

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