Kohler v. Kohler

204 S.E.2d 177 (1974)

21 N.C. App. 339

Patricia H. KOHLER v. J. Rudolf KOHLER.

No. 7414DC50.

Court of Appeals of North Carolina.

April 17, 1974.

Bryant, Lipton, Bryant & Battle, P. A. by Alfred S. Bryant, Durham, for plaintiff-appellee.

Newsom, Graham, Strayhorn, Hedrick, Murray & Bryson by O. William Faison, Jr., Durham, for defendant-appellant.

VAUGHN, Judge.

Defendant's fourth assignment of error (record p. 164) is that the court denied his motion to dismiss "for lack of jurisdiction *178 over the plaintiff . . . because the plaintiff is not domiciled in North Carolina and lacks capacity to bring an action in this State." This assignment of error is overruled. Plaintiff's uncontested testimony was that she lives at 2312 Pratt Avenue, Durham, North Carolina, has lived in Durham since 2 September 1971 and at the time plaintiff and defendant separated plaintiff, defendant and their child resided in the home owned by them in Durham.

There is no assignment of error in the record on appeal with reference to the contention, which defendant attempts to raise for the first time in his brief, that the court lacks personal jurisdiction over the defendant. We hold, nevertheless, that the court had personal jurisdiction over the defendant. Even if there had not been proper service of process, and we think there was, defendant invoked the jurisdiction of the court when he obtained extensions of time in which to appear and plead. This constituted a general appearance which waived any defect in the jurisdiction of the court for lack of proper service.

The case was before the court on plaintiff's application for alimony pendente lite, custody and child support. We note, however, that most of the testimony at trial and findings of fact brought forward in the record containing 185 pages was devoted to the parties' financial transactions and related to plaintiff's claim for an accounting. Except as related to the needs of the child, plaintiff's needs for support until there could be a trial on the merits, and defendant's ability to supply those needs, this evidence was totally irrelevant to the questions before the court on a hearing for alimony pendente lite. Provisions for temporary subsistence pending trial on the merits do not involve an accounting between husband and wife. The purpose of a hearing for alimony pendente lite is to give the dependent spouse reasonable subsistence pending trial and without delay. It is not to determine property rights or finally determine what alimony the wife may receive if she wins her case on the merits. Harrell v. Harrell, 253 N. C. 758, 117 S.E.2d 728. Plaintiff also alleged and the court purported to find that defendant has certain assets which are the property of the minor. Quite aside from the fact that the question of the alleged ownership of these assets by the infant was also beyond the scope of a hearing for alimony pendente lite, an infant must appear by guardian or guardian ad litem. Plaintiff could not have these rights determined in her individual capacity.

Those parts of the order awarding custody of the child to plaintiff, directing defendant to pay $250.00 per month for child support, $80.00 per month for alimony, $107.32 per month for car payments, and ordering defendant to pay counsel fees are based on proper findings of fact which are supported by competent evidence. Those parts of the order are affirmed. For the reasons stated, the remainder of the order is vacated.

Affirmed in part.

Vacated in part.

BRITT and PARKER, JJ., concur.