Smith v. Smith

183 S.E.2d 283 (1971)

12 N.C. App. 378

Bonnie Edwards SMITH v. Osborne Webster SMITH, Sr.

No. 7122DC416.

Court of Appeals of North Carolina.

September 15, 1971.

Collier, Harris & Homesley, by Walter H. Jones, Jr. and T. C. Homesley, Jr., Mooresville, for plaintiff appellant.

William E. Crosswhite, Sowers, Avery & Crosswhite, Statesville, for defendant appellee.

VAUGHN, Judge.

The judgment of absolute divorce in the husband's action proscribed any subsequent judgment awarding alimony in this action instituted by the wife. Yow v. Yow, 243 N.C. 79, 89 S.E.2d 867. In Yow, after holding that a judgment of absolute divorce in the husband's action did not annul the right of his former wife to receive assistance pendente lite under an order rendered in her action for alimony without *284 divorce, before the commencement of the proceedings for absolute divorce, the court said:

"Since the institution of plaintiff's action for alimony without divorce, the defendant has always had, and has now, the right to bring that action to a final determination. A final determination would terminate the orders herein for subsistence pendente lite. However, it would not affect the payments in arrears. The defendant has no one to blame except himself that these orders are still effective."

In the case under consideration, by motion in the cause, defendant has attempted to bring the pending alimony suit to a "final determination" and terminate the order for alimony pendente lite. We hold that defendant chose the proper procedure. In holding that the trial judge was correct in terminating the husband's obligation for payment of alimony pendente lite, we find support in the concurring opinion written by Bobbitt, J., (now Chief Justice) in Yow v. Yow, supra.

"1. Such pendente lite orders are interlocutory, designed to insure that a dependent wife suffer no disadvantage in the prosecution of her action on account of lack of funds for subsistence and counsel fees during its pendency. Oliver v. Oliver, 219 N.C. 299, 13 S.E.2d 549. 2. Since Ch. 814, Session Laws of 1955, a wife may file a cross action for alimony without divorce in her husband's action for absolute divorce; and conversely, a husband may file a cross action for absolute divorce in his wife's action for alimony without divorce. 3. A trial of an action for alimony without divorce, subsequent to a valid decree of absolute divorce, would present, to say the least, anomalous situation. If such action could be tried, and the wife obtained a final decree for alimony without divorce after trial on the merits, the judgment in her favor, which would supersede all pendente lite orders, would be rendered subsequent to the commencement of the action for absolute divorce and so not within the protection of G.S. § 50-11."

The judgment from which plaintiff appealed is affirmed.

Affirmed.

BROCK and GRAHAM, JJ., concur.