Frissell v. Frissell

266 S.E.2d 866 (1980)

Harry M. FRISSELL v. Eleanor Susan Lindley FRISSELL.

No. 8010DC37.

Court of Appeals of North Carolina.

June 3, 1980.

*867 Ward & Smith by J. Randall Hiner, Havelock, for plaintiff-appellant.

Broughton, Wilkins & Crampton by Charles P. Wilkins and H. Julian Philpott, Jr., Raleigh, for defendant-appellee.

HARRY C. MARTIN, Judge.

The question raised on this appeal is whether plaintiff waived his right to a jury trial on the issue of permanent alimony. The district court, in its order denying plaintiff's motion to vacate the permanent alimony order, concluded as a matter of law that plaintiff had waived his right to a jury trial by his failure to appear, either personally or by counsel, when the issue of permanent alimony was decided by the district court.

*868 Plaintiff insists there was no waiver of jury trial and relies upon Heidler v. Heidler, 42 N.C.App. 481, 256 S.E.2d 833 (1979). In Heidler, the Court, of which this writer was a member of the panel, was faced with facts similar to those of the case at bar. Plaintiff husband brought an action for absolute divorce and his wife counterclaimed for alimony. Plaintiff was a resident of North Carolina; defendant lived in Illinois. Plaintiff did not request a jury trial in either his complaint or reply; however, defendant did ask for a jury trial in her answer. Plaintiff's counsel requested to withdraw as attorney for plaintiff and was allowed to do so. Thereafter the case came on for hearing with defendant and her counsel present but plaintiff not appearing either in person or by counsel. Defendant waived her right to jury trial; the court heard the case without a jury and entered judgment awarding defendant permanent alimony. Plaintiff Heidler appealed, contending he was deprived of jury trial as he had not given his consent to the withdrawal of defendant's jury trial demand as required by N.C.G.S. 1A-1, Rule 38(d). The Court held that N.C.G.S. 1A-1, Rules 38(d) and 39(a), "do not provide that failure to appear at the trial constitutes consent to a withdrawal of a valid jury trial demand. . . ." Id. at 486, 256 S.E.2d at 835.

This Court in Heidler was correct in its holding with respect to Rules 38(d) and 39(a). However, the Court did not consider grounds for the waiver of right to jury trial outside the Rules of Civil Procedure.

The Rules of Civil Procedure are not the exclusive authority on the question of waiver of right to jury trial. The rules became effective 1 January 1970 and apply to all actions pending on that date. 1969 N.C. Sess. Laws ch. 803, § 1. Sykes v. Belk, 278 N.C. 106, 179 S.E.2d 439 (1971), was tried at the 27 August 1970 session of Superior Court of Mecklenburg County. In Sykes, the plaintiffs contended the trial court erred in denying their timely motion for jury trial. In discussing waiver of jury trial, the Court stated:

North Carolina Constitution, Art. I, § 19, guarantees to every person the "sacred and inviolable" right to demand a jury trial of issues of fact arising in all controversies at law respecting property. A party may waive his right to jury trial by (1) failing to appear at the trial, (2) by written consent filed with the clerk, (3) by oral consent entered in the minutes of the court, (4) by failing to demand a jury trial pursuant to G.S. 1A-1, Rule 38(b). Art. IV, § 12, North Carolina Constitution; Driller Co. v. Worth, 117 N.C. 515, 23 S.E. 427.

Id. at 123, 179 S.E.2d at 449. By its reference to Rule 38(b), the Court obviously was aware of the provisions of the Rules concerning jury trial waiver, and by its holding did not limit itself to the provisions of the Rules. In Ervin Co. v. Hunt, 26 N.C.App. 755, 217 S.E.2d 93, cert. denied, 288 N.C. 511, 219 S.E.2d 346 (1975), the Court of Appeals ruled that a party could waive trial by jury by failing to appear at trial, relying upon Sykes.

We hold that in addition to the waiver of right to jury trial as established by N.C.G.S. 1A-1, Rules 38(d) and 39(a), as set forth in Heidler, a party may waive his right to jury trial by failing to appear at trial. Sykes v. Belk, supra. Insofar as Heidler is inconsistent with this opinion, it is expressly overruled. Chief Judge Morris, Judges Parker and Martin (Harry C.), who constituted the Court in Heidler, join and concur in this holding.

Plaintiff Frissell, after proper notice, failed to appear at the 9 December 1975 hearing for permanent alimony. He thereby waived his right to trial by jury. With this holding we do not discuss the contention of laches on the part of plaintiff.

The trial court did not err in denying plaintiff's motion to vacate the order for permanent alimony.

Affirmed.

WEBB and WELLS, JJ., concur.