Barnwell v. Barnwell

85 S.E.2d 916 (1955)

241 N.C. 565

Mable Jean BARNWELL v. Thomas P. BARNWELL.

No. 106.

Supreme Court of North Carolina.

March 2, 1955.

*917 Sanford W. Brown and Richard L. Griffin, Asheville, for defendant, appellant.

I. C. Crawford and L. C. Stoker, Asheville, for plaintiff, appellee.

JOHNSON, Justice.

The defendant's first assignment of error, based on Exception No. 1, is that the order appealed from is void for the reason that at the time it was entered by Judge Whitmire on 3 December, 1954, the previous order entered at the May Term, 1954, was in force. The defendant takes the position that Judge Whitmire was without authority of law to enter an order superseding the former order in the absence of allegations by the plaintiff and findings of the court showing changed conditions since the entry of the former order.

*918 The defendant's position is untenable. The original order was entered in May without notice to the defendant. This was conclusively established by judicial admission of the parties. Therefore the order was void. Collins v. North Carolina State Highway Commission, 237 N.C. 277, 74 S.E.2d 709. See also Clapp v. Clapp, 241 N.C. 281, 85 S.E.2d 153. Judge Whitmire properly treated it as a nullity upon challenge by the defendant. True, no formal decree was made adjudicating that the order was void, but the omission is inconsequential and may be remedied nunc pro tunc. It is so ordered. The record stipulates that the latter order was entered after "due and proper notice" to the defendant. The hearing will be upheld.

Next, the defendant challenges the order of Judge Whitmire on the ground that the jurisdiction of the Superior Court in the instant action was ousted by the commencement of the action for absolute divorce in the General County Court. Here the defendant points to Chapter 925, Public Laws of 1953, which amplifies G.S. § 50-16 so as to permit the custody of children to be determined in actions for alimony without divorce, but subject to the limitation that "Such request for custody of the children shall be in lieu of a petition for a writ of habeas corpus, * * *." From this the defendant reasons that the power to award custody in an action for alimony without divorce, G.S. § 50-16, is the same as under writ of habeas corpus, wherein the rule is that jurisdiction as to custody is ousted upon the filing of a divorce action. Phipps v. Vannoy, 229 N.C. 629, 50 S.E.2d 906. The defendant contends that by analogy jurisdiction as to matters of custody or support of a minor child in an action for alimony without divorce is terminated by the filing of an action for divorce. The defendant's contention in respect to childcustody is not presented for review in this case. Neither parent seeks an adjudication of rights respecting custody of the child of the marriage, and the order is silent in respect thereto. Therefore we refrain from intimating what our decision would be under the 1953 amendment if custody were in issue. See 31 N.C.L.R. 407. In the instant case it is enough to say that the amendment of 1953 in nowise affects the jurisdictional power of the court to award subsistence for a mother and child in an action for alimony without divorce where, as here, the question of custody is not raised. The defendant's second assignment of error is overruled.

The remaining assignments of error are without merit. They involve no new question requiring extended discussion. The court's findings of fact support the order as entered. It will be modified, however, so as to declare the order of 18 May, 1954, a nullity, and as so modified let the order appealed from be affirmed.

Modified and affirmed.