Cox v. Cox

245 S.E.2d 94 (1978)

36 N.C. App. 573

Ralphetta T. COX v. Charles R. COX.

No. 7726DC528.

Court of Appeals of North Carolina.

June 6, 1978.

*96 Sanders, London & Welling by Charles M. Welling, Charlotte, for plaintiff-appellant.

Calvin L. Brown, Charlotte, for defendant-appellee.

CLARK, Judge.

The issue raised by this appeal is whether the trial court erred in declaring invalid a consent judgment, which was adopted by the court and enforceable by contempt proceedings, because the consent judgment did not contain a finding that the payee-wife was a dependent spouse as required by G.S. 50-16.

A statutory mandate which contemplates the production of a trial record sufficient to permit proper appellate review should not be held to apply automatically to a consent judgment which ends litigation, and, by its very nature, contemplates no appellate review. Rather, a consent judgment should be examined more generally to see if it is fair, if it does not contradict statutory or judicial policy. Two cases decided under former G.S. 50-16 contain helpful language, although they are not clear precedent because G.S. 50-16 (repealed in 1967) did not mandate specific findings of fact as does G.S. 50-16.8(f). Williams v. Williams, 261 N.C. 48, 134 S.E.2d 227 (1964); Caudle v. Caudle, 206 N.C. 484, 174 S.E. 304 (1934). In both cases a consent judgment was upheld which ordered the payment of alimony even though "[p]laintiff did not allege, nor did the court find, either in terms or in substance, that the separation was caused by defendant's misconduct and not by any fault or misconduct on her part." Whitesides v. Whitesides, 271 N.C. 560, 563, 157 S.E.2d 82, 84 (1967). Edmundson v. Edmundson, 222 N.C. 181, 22 S.E.2d 576 (1942), stated:

"`Can alimony against the husband be awarded when there is no allegation, evidence or finding that he was the party at fault?' In an adversary proceeding the answer would be `No', but where, as here, the parties acted in agreement and the judgment was entered by consent, the answer is `Yes'. . . ." 222 N.C. at 186, 22 S.E.2d at 580.

In the case sub judice, the consent judgments were clearly valid as court orders and were properly enforced by the contempt power of the court. 2 Lee, N.C. Family Law, § 152 (1976 Cum.Supp. pp. 88-90). Defendant was in fact found in contempt for wilful failure to comply with the consent judgments. He did not appeal from the orders finding him in contempt. Thus defendant is not in a position to contend, and does not in this appeal contend, that the consent judgments were mere contracts between the parties and not enforceable by contempt.

The statutory policy behind the requirement of G.S. 50-16.2 that only a "dependent spouse" is entitled to alimony is to protect a non-supporting spouse from serious economic harm by making payments to the spouse who does not need support. Lemons v. Lemons, 22 N.C.App. 303, 206 S.E.2d 327 (1974). The fact that the defendant agreed to pay monthly alimony is proof enough that he needed no further protection.

Under G.S. 50-16.9(a) a consent order for alimony or alimony pendente lite "may be modified or vacated at any time, upon motion in the cause and a showing of changed circumstances . . . ." It is obvious in the case before us that the defendant offered some evidence of changed circumstances, and the evidence may have been sufficient to support a finding by the trial court of changed circumstances within the meaning of G.S. 50-16.9(a) which would justify a modification or vacation of the consent judgments. But the trial court failed to comply with the statutory mandate and erroneously ruled that the prior consent judgments were invalid for failure of the court to make a finding of dependency.

Because of this error in the ruling of the trial court we must remand this cause for a de novo hearing. A remand for the limited purpose of determining if the evidence presented at the 12 April 1977 hearing was sufficient to support a finding of changed circumstances would not be appropriate in *97 view of the time lapse since that hearing with possible changes which should be considered by the court in determining the alimony issue. The cause is remanded for hearing and determination consistent with this opinion.

Reversed and remanded.

BRITT and ERWIN, JJ., concur.