Rayfield v. Rayfield

89 S.E.2d 399 (1955)

242 N.C. 691

J. L. RAYFIELD v. Vergie Gordon RAYFIELD.

No. 247.

Supreme Court of North Carolina.

October 12, 1955.

*401 Hugh M. McAulay, Charlotte, for plaintiff, appellant.

Wm. H. Booe, Charlotte, for defendant, appellee.

PARKER, Justice.

The appellant has no exceptions to the findings of fact of the court.

This single question of law is presented for decision: Can an award of subsistence for defendant and the children born of the marriage, decreed by the court under G.S. § 50-14 in conjunction with a divorce a mensa et thoro, before the commencement of a proceeding by the wife for a divorce a vinculo under the provisions of G.S. § 50-6, which she obtained, be increased in amount by the court in its discretion, on her motion in the action when and where subsistence was awarded, when changed circumstances of the parties reasonably require it?

In the case of alimony granted in conjunction with a divorce a mensa et thoro it is practically the undisputed rule that such alimony provisions are subject to such modification by the court from time to time as changed circumstances of the parties may reasonably require. Rogers v. Vines, 6 Ired.L. 293, 28 N.C. 293; Taylor v. Taylor, 93 N.C. 418, 53 Am.Rep. 460; Crews v. Crews, 175 N.C. 168, 95 S.E. 149; Barber v. Barber, 217 N.C. 422, 427, 8 S.E.2d 204; Gloth v. Gloth, 154 Va. 511, 153 S.E. 879, 71 A.L.R. 700 (an excellent opinion, citing many cases); Annotations: 71 A.L.R. 724, 127 A.L.R. 742; 17 Am.Jur., Divorce and Separation, Sec. 644.

When a consent judgment for alimony is entered with the sanction of the court, it is a contract binding between the parties, and cannot be amended without their consent. Lentz v. Lentz, 193 N.C. 742, 138 S.E. 12; Morris v. Patterson, 180 N.C. 484, 105 S.E. 25; 17 Am.Jur., Divorce and Separation, Sec. 649.

Whether an award of alimony rendered in connection with a divorce a vinculo can be modified is not before us for consideration for two reasons: one, in this jurisdiction permanent alimony is not awarded in a divorce a vinculo, Feldman v. Feldman, 236 N.C. 731, 73 S.E.2d 865; Stanley v. Stanley, 226 N.C. 129, 37 S.E.2d 118; Hobbs v. Hobbs, 218 N.C. 468, 11 S.E.2d 311; Duffy v. Duffy, 120 N.C. 346, 27 S.E. 28, and two, no such facts are before us. As to that question see: Annotations: 71 A.L.R. 726, 127 A.L.R. 742; 17 Am.Jur., Divorce and Separation, Sec. 645.

The General Assembly of North Carolina enacted a statute, set forth in G.S. § 50-11, which was in full force and effect in 1941, and reads in part: "Provided further, that a decree of absolute divorce upon the ground of separation for two successive years as provided in § 50-5 or § 50-6 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."

In 1953 the General Assembly, 1953 Session Laws, Chapter 1313, enlarged the proviso set forth above by providing that *402 "`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.'"

The amendment to G.S. § 50-11 by the General Assembly in 1955 Session Laws, Chapter 872, by its express language, is not applicable to defendant's judgment for subsistence rendered in 1941.

The court had the power when it rendered the judgment granting defendant a divorce a mensa et thoro to decree in the judgment that the plaintiff should pay permanent alimony for the subsistence of defendant and their infant children. G.S. § 50-14; Silver v. Silver, 220 N.C. 191, 16 S.E.2d 834; Jenkins v. Jenkins, 225 N.C. 681, 36 S.E.2d 233; Norman v. Norman, 230 N.C. 61, 51 S.E.2d 927.

The General Assembly has provided in the explicit language of G.S. § 50-11 that defendant's judgment for permanent alimony survives the judgment of absolute divorce, obtained in an action commenced after the rendition of the judgment decreeing the payment of alimony to her. Simmons v. Simmons, 223 N.C. 841, 28 S.E.2d 489; Howell v. Howell, 206 N.C. 672, 174 S.E. 921.

In Rogers v. Vines, supra, Ruffin, C. J., speaking for the Court used these words, which is practically undisputed law: "Moreover, the decree for alimony vests in the wife no absolute right to the allowance, * * * it may be changed from time to time, and reduced or enlarged, in the discretion of the court." This language is quoted with approval in Taylor v. Taylor, supra.

This Court said in Crews v. Crews, supra [175 N.C. 168, 95 S.E. 152]: "A judgment for alimony is never final in the sense that it is always and forever enforceable and cannot be modified on motion and sufficient evidence."

The amount of alimony and counsel fees decreed is a matter of judicial discretion. Davidson v. Davidson, 189 N.C. 625, 127 S.E. 682; Vaughan v. Vaughan, 211 N.C. 354, 190 S.E. 492; Butler v. Butler, 226 N.C. 594, 39 S.E.2d 745.

The lower court, in its sound discretion, after a hearing at which plaintiff and defendant were present with their attorneys, and both offered evidence, found from sufficient evidence that the changed circumstances of the parties reasonably required that the payment of subsistence entered at the November Term 1941 should be increased, and entered an order to that effect. The plaintiff makes no contention that there was not sufficient evidence before the court for it to make its finding that the changed circumstances of the parties reasonably required that the amount of payment of subsistence should be increased, but contends that the judgment was final, and the court had no power to modify it. The law is otherwise. Under the facts found the court did have the power to increase the amount to be paid by plaintiff under the judgment for subsistence. For us to rule otherwise would be "to impair * * * the right of the wife to receive alimony" under the judgment entered in November 1941, because it is practically undisputed law that a court in the exercise of its sound discretion can reduce or enlarge the amount of alimony decreed in conjunction with a divorce a mensa et thoro to meet changing circumstances of the parties, and to nullify the plain and express language of G.S. § 50-11.

The plaintiff in his brief makes no reference to the part of the order requiring the payment of counsel fees to defendant's lawyer, though he has an exception to it. "Exceptions in the record not set out in appellant's brief, or in support of which no reason or argument is stated or authority cited, will be taken as abandoned by him." Rules of Practise in the Supreme Court, Rule 28, 221 N.C. 562; Reynolds v. Earley, 241 N.C. 521, 85 S.E.2d 904.

*403 A motion in the action in which the judgment of subsistence was rendered was the proper procedure. Barber v. Barber, 216 N.C. 232, 4 S.E.2d 447.

The order of the lower court is

Affirmed.

WINBORNE and HIGGINS, JJ., took no part in the consideration or decision of this case.