Peoples v. Peoples

174 S.E.2d 2 (1970)

8 N.C. App. 136

Martha P. PEOPLES v. Linwood T. PEOPLES.

No. 7014DC86.

Court of Appeals of North Carolina.

May 27, 1970.

*6 W. Paul Pulley, Jr., Durham, for plaintiff appellee.

Bobby W. Rogers, Henderson, for defendant appellant.

CAMPBELL, Judge.

The appellant in this action raises the question of whether or not a District Court Judge may hold a party to a proceeding before him in civil contempt for failure to comply with court orders issued pursuant to a confession of judgment regarding payment of alimony which was entered in the Superior Court prior to the establishment of a district court for the district in which the order was entered. We answer that question unequivocally in the affirmative.

The Judicial Department Act of 1965, as codified in Chapter 7A of the General Statutes, sets up a "unified judicial system for purposes of jurisdiction, operation and administration, and consists *7 of an appellate division, a superior court division, and a district court division." G.S. § 7A-4. In civil matters, original general jurisdiction is vested, with some exceptions, "in the aggregate" in the General Court of Justice. G.S. § 7A-240. The superior court division or the district court division, or both, are designated as "proper" divisions in which to bring a given civil action, but no judgment in a matter in which the trial courts have original jurisdiction is "void or voidable for the sole reason that it was rendered by the court of a trial division which * * * is improper for the trial and determination of the civil action or proceeding." G.S. § 7A-242. It follows that no order of the district court may be overturned merely because it was not the proper division to enter the order. Appellant's attack must fail, at any rate, since there is no showing in the record that he entered timely objection to the jurisdiction or venue of the district court here. G.S. § 7A-257.

We think, however, that the district court was the proper division to enforce the provisions of the confession of judgment in the instant case. A judgment ordering the payment of alimony may be enforced by the contempt power as provided for in G.S. §§ 5-8 and 5-9. G.S. § 50-16.7. G.S. § 5-8 provides in part that

"Every court of record has power to punish as for contempt when the act complained of was such as tended to defeat, impair, impede, or prejudice the rights or remedies of a party to an action then pending in court * * *."

"An action is pending from the time it is commenced until its final determination." Spencer v. McDowell Motor Co., 236 N.C. 239, 72 S.E.2d 598 (1952). An order for the payment of alimony is not a final judgment, since it may be modified upon application of either party. Barber v. Barber, 217 N.C. 422, 8 S.E.2d 204 (1940). Thus, an action for alimony would continue to be "pending" in the court of proper jurisdiction. The district court has jurisdiction over alimony proceedings and, indeed, the Legislature has decreed that it is the only "proper" division for such a proceeding. G.S. § 7A-244.

It is manifest that the court which has been given the duty to supervise domestic relations mattersincluding alimony judgments and orders pursuant theretomust have the authority to enforce those judgments and orders. This is true whether the judgment was entered in the superior court or the district court. It would be anomalous to assume that when the Legislature changed the statutory framework to make the district court division the proper agency in which to bring actions for alimony or actions to enforce alimony judgments, it meant to leave supervision of prior alimony judgments to the superior court. We decline to construe the statutes so as to reach that result. The district court was established in Durham County as of the first Monday in December of 1966. G.S. § 7A-131. We hold that it has the power to enforce by a civil contempt proceeding a confession of judgment entered in the Superior Court on 4 May 1966 allowing alimony to the appellee.

The appellant also questions the sufficiency of the findings of fact in the final order of Judge Lee entered 29 August 1969.

"The findings of fact by the judge in contempt proceedings are conclusive on appeal when supported by any competent evidence * * * and are reviewable only for the purpose of passing on their sufficiency to warrant the judgment." Willis v. Willis, 2 N.C.App. 219, 162 S.E.2d 592 (1968), quoting from Rose's Stores v. Tarrytown Center, 270 N.C. 206, 211, 154 S.E.2d 313 (1967).

Judge Lee found here that the appellant had "willfully failed to furnish his income tax return by April 30, 1969, as required by the Confession of Judgment * * *"; that appellant had completed his 1968 tax return by 15 April 1969; that he was hospitalized from 17 April 1969 to 8 May 1969 *8 suffering from a heart attack and that "defendant has possessed the means and ability" to comply with Judge Lee's order.

For appellant to be held in contempt for failure to comply with the provisions of the judgment requiring him to "furnish his income tax return by April 30," the trial judge must make "particular findings that defendant possessed the means to comply" with them. Willis v. Willis, supra. Here the defendant was hospitalized with a heart attack on 30 April 1969, and it is questionable whether he had the means to comply with the order at that time, although he admits "it would have been a simple matter for me to drop a copy [of the form] in the mail." However, if this were error, it was harmless error, in that Judge Lee's final order recites that the income tax form has now been furnished to the appellee and to the court. The appellant has apparently been purged of such contempt as would have been associated with his failure to supply the form on time.

Judge Lee found, even though the appellant had been ill, that "since the order of The Honorable E. Lawson Moore of October 11, 1968, defendant has possessed the means and ability to comply with said order and the previous orders of Court." This finding is amply supported by the evidence of relative income and indebtedness. The appellant was earning $15,000-$17,000 a year, his net income was about $1,000 a month and his wife's net income was $282 a month. His monthly expenses were about $800, his medical expenses above insurance incident to his heart attack were $482.03, and he had borrowed $2,400 from local banks. There is no merit in this assignment of error.

The evidence in this case amply supports the order of Judge Lee and further shows that the defendant has been extended far more consideration and delay than he deserves.

We have likewise reviewed the other assignments of error brought forward by appellant and find no error in law.

Affirmed.

PARKER and HEDRICK, JJ., concur.