Becker v. Becker

159 S.E.2d 569 (1968)

273 N.C. 65

Shirley B. BECKER (now Hall) v. David H. BECKER.

No. 109.

Supreme Court of North Carolina.

February 28, 1968.

*572 Shelby E. Horton, Jr., William J. Cocke, Asheville, for defendant appellant.

*573 Uzzell & Dumont, by Harry Dumont, Gudger & Erwin, by Lamar Gudger, Asheville, for plaintiff appellee.

HIGGINS, Justice.

When the plaintiff instituted this action in the General County Court for alimony without divorce and for custody and support of the children, that court acquired original jurisdiction of the parties and the children. Thereafter, the Superior Court had only appellate jurisdiction. "* * * (A)ppeals from that court to the Superior Court are upon exceptions duly noted and assigned as error, and * * * the power of the Judge hearing the case on appeal is limited to ruling on the exceptions brought forward. Exercising only appellate jurisdiction, he is without authority to make additional findings of fact as the basis of judgment. G.S. § 7-279; Jenkins v. Castelloe, 208 N.C. 406, 181 S.E. 266; Starnes v. Tyson, 226 N.C. 395, 38 S.E.2d 211." McLean v. McLean, 233 N.C. 139, 63 S.E.2d 138. See also Robbins v. Robbins, 229 N.C. 450, 50 S.E.2d 545; Robinson v. McAlhany, 216 N.C. 674, 6 S.E.2d 517; Chapter 925, Session Laws of 1953; Chapter 1189, Session Laws of 1955.

In a suit for alimony without divorce and for the custody of children, the court now acquires jurisdiction of the children as well as the parents. That jurisdiction remains in the court wherein the action is brought. Blankenship v. Blankenship, 256 N.C. 638, 124 S.E.2d 857; G.S. § 7-296; Chapter 1198, Session Laws of 1965. In re Custody of Sauls, 270 N.C. 180, 154 S.E.2d 327 and Swicegood v. Swicegood, 270 N.C. 278, 154 S.E.2d 324, are not in conflict but are in harmony with the view here expressed. In those cases this Court held that in an action for divorce or for alimony and custody without divorce, the Court acquires jurisdiction over the children and ousts the custody jurisdiction previously acquired by another court in a habeas corpus proceeding pursuant to G.S. § 39-17 or G.S. § 39-17.1. The court which first acquires jurisdiction in a divorce action, Robbins v. Robbins, supra, or alimony without divorce, Murphy v. Murphy, 261 N.C. 95, 135 S.E.2d 148; Cox v. Cox, 246 N.C. 528, 98 S.E.2d 879 retains that jurisdiction subject only to review by appeal for errors of law raised by exceptive assignments.

On December 11, 1961 the plaintiff, wife, instituted this action in the General County Court against the defendant, husband, for alimony without divorce and for the custody of and support for the two sons of the parties. The plaintiff's complaint and the defendant's answer were filed at the same time on the date the action was instituted. The following day the parties filed with the court a written settlement of differences, including property rights, which the court approved and adopted as its judgment. The judgment awarded the plaintiff the primary custody and required the defendant to pay for the support and maintenance of his wife and children the sum of $60 per week. Insofar as the property rights of the parties were involved, the judgment was a consent settlement.

On motions of the parties from time to time the General County Court made changes with respect to custody. At no time, however, has there been a change in the requirement that the defendant pay for the support of his wife and children the sum of $60 per week. Neither has there been any determination of how much of the amount was allocated to the support of the plaintiff and how much to the support of the children. When the plaintiff obtained her divorce on the ground of separation for the statutory period, the husband's liability for her support and counsel fees terminated. G.S. § 50-11; Porter v. Citizens Bank, 249 N.C. 173, 105 S.E.2d 669. His duty to support the children, however, continued. All payments made to the plaintiff subsequent to the divorce should be credited on the defendant's liability for the support of the children. When the status of the account is thus established, the General County Court will be in a position to determine whether the defendant has been in wilful contempt *574 for failure to pay what the court finds is due for their support.

Upon the basis of the authorities heretofore discussed, we conclude that Judge Bryson was limited in his review to decision on the questions of law or legal inference presented by exceptions and assignments of error. When he overruled all of the exceptive assignments, it was then his duty to remand the case to the General County Court. All other orders entered by him were beyond his authority and may be treated as a nullity. When the cause is again before the General County Court the questions of custody, the father's liability for the children's support according to their needs and his ability to meet them, may be determined. Attorney's fees for services rendered subsequent to plaintiff's divorce may be allowed only for services rendered on behalf of the children. The judgment of the Superior Court is modified by striking therefrom all orders except that which overrules the assignments of error. The Superior Court will remand the cause to the General County Court of Buncombe County (or its successor) for further disposition. As modified herein, the judgment is

Affirmed.