Merritt v. Merritt

Annotate this Case

74 S.E.2d 529 (1953)

237 N.C. 271


No. 19.

Supreme Court of North Carolina.

February 25, 1953.

*530 John H. Hall, Elizabeth City, for plaintiff appellee.

LeRoy & Goodwin, Elizabeth City, for defendant appellant.

BARNHILL, Justice.

The fifth issue submitted to the jury in the original trial involves a question of law. The answer thereto was for the judge and not for the jury. It constitutes no proper basis for a judgment requiring plaintiff to continue to pay defendant alimony after the dissolution of the marital status.

G.S. ยง 50-11 expressly provides that "After a judgment of divorce from the bonds of matrimony, all rights arising out of the marriage shall cease and determine * * *." The judge entering a decree of divorce a vinculo is without jurisdiction to enter an order requiring the husband to continue to support his divorced wife. Feldman v. Feldman, 236 N.C. 731, 73 S.E.2d 865, and cases cited; Livingston v. Livingston, 235 N.C. 515, 70 S.E.2d 480. And *531 it is axiomatic that jurisdiction cannot be conferred by consent. Feldman v. Feldman, supra; McRary v. McRary, 228 N.C. 714, 47 S.E.2d 27, and cases cited.

What we have heretofore said on this question requires no amplification. Further discussion would serve no useful purpose. Suffice it to say that the judgment entered by the court below was in accord with our decisions.

We do not mean to say that defendant is wholly without a remedy. The courts are still open to her for the enforcement of the contractural rights created by the separation agreement.

The judgment entered is