Kinross-Wright v. Kinross-Wright

102 S.E.2d 469 (1958)

248 N.C. 1

Beryl KINROSS-WRIGHT v. Vernon KINROSS-WRIGHT.

No. 668.

Supreme Court of North Carolina.

March 19, 1958.

*475 M. Michael Gordon, Houston, Tex., of the Texas Bar, Everett, Everett & Everett, Durham, for defendant appellant.

Dupree & Weaver, Raleigh, for plaintiff appellee.

WINBORNE, Chief Justice.

In the light of the facts found as hereinabove set forth, appellant, defendant, states in brief filed herein, as involved on this appeal, several questions, among which are:

1. "Was it within the court's jurisdiction and discretion to entertain this litigation?" The answer is "Yes". See Barber v. Barber, 216 N.C. 232, 4 S.E.2d 447; Abernathy Land & Finance Co. v. First Security Trust Co., 213 N.C. 369, 196 S.E. 340; Federal Land Bank v. Davis, 215 N.C. 100, 1 S.E.2d 350; Barber v. Barber, 217 N.C. 422, 8 S.E.2d 204.

In the first Barber case, supra [216 N.C. 232, 4 S.E.2d 448], this Court said: "An action in court is not ended by the rendition of a judgment, but in certain respects it is still pending until the judgment is satisfied * * *. Motion affecting the judgment but not the merits of the original controversy may be made in the cause * * *. This is particularly true of judgments allowing alimony in divorce actions and in actions for alimony without divorce, in which it may not be said that the judgment *476 is in all respects final * * *. Such actions are always open for motions in the cause to determine the amount of arrearage and to obtain the remedies permitted by statute for the enforcement of the order for alimony. It was not required that a new summons be served upon the defendant. Notice of motion under the statute was sufficient. This notice was duly served."

The Court continues: "It appears from this record, as stated, that the defendant is in court and is subject to its jurisdiction, on notice, to hear and determine motions in the cause. Want of jurisdiction of the court in such matters may not be challenged by special appearance. The right of the plaintiff to make the motion may not be thus questioned."

Indeed the second Barber case, supra, establishes that the proper procedure for recovering arrears in alimony payments is by motion in the cause. The Court there held that "An order for the payment of alimony is res judicata between the parties, but is not a final judgment, since the court has the power, upon application of either party, to modify the orders for changed condition of the parties."

Defendant, however, contends that the Barber cases are not controlling because the wife there was still a resident of North Carolina. This would not seem to make a difference. For once jurisdiction of a court attaches it exists for all time until the cause is fully and completely determined. See Michigan Trust Co. v. Ferry, 228 U.S. 346, 33 S. Ct. 550, 552, 57 L. Ed. 867, where Justice Holmes, writing for the Court, stated: "Ordinarily jurisdiction over a person is based on the power of the sovereign asserting it to seize that person and imprision him to await the sovereign's pleasure. But when that power exists and is asserted by service at the beginning of a cause, or if the party submits to the jurisdiction in whatever form may be required, we dispense with the necessity of maintaining the physical power, and attribute the same force to the judgment or decree whether the party remain within the jurisdiction or not. This is one of the decencies of civilization that no one would dispute."

2. Did the court err in holding that Texas Community Property Law has no applicability, even though defendant has been a Texas resident since January 1953? While there seems to be a paucity of decided cases on this subject, appellee cites and relies upon two cases involving property settlement agreements incident to divorce actions which reject the applicability of the Community Property Law. They are (1) Alexander v. Alexander, 64 F. Supp. 123, affirmed 10 Cir., 158 F.2d 429, certiorari denied 330 U.S. 845, 67 S. Ct. 1086, 91 L. Ed. 1290; Headnote 3 in 158 F.2d 429 epitomizes the opinion there. It is this: "Where defendant was required by a Missouri separation agreement, approved by a divorce decree, to pay plaintiff a percentage of defendant's annual gross income in excess of a specified amount, and defendant thereafter remarried and moved to Texas, where one-half of the earnings of a husband belong to wife, defendant could not invoke Texas law to reduce his gross income by one-half in computing amount due plaintiff under agreement and all computations were required to be made under Missouri law."

The Court speaking thereto had this to say:

"This being a Missouri contract, it must be presumed that when the parties used the term `gross income,' they meant and understood `gross income' as that term is understood in Missouri and under Missouri law there can be no doubt what appellant's income was, for instance, in 1943, under the Missouri law, had he remarried in Missouri * * *. "Of course, he could go to Texas, but when he did he did not take the contract with him. It remained in Missouri so to speak, a Missouri contract subject to Missouri law, and subject to *477 the interpretation under that law. His removal to Texas did not change a Missouri contract into a Texas contract. His obligations under the contract still depended under the law of Missouri, the place where the contract was made. When he executed this contract in Missouri, he fixed his liability under the canopy of the Missouri law, and he remains thereunder until the performance of the contract is completed."

The provisions of the separation there are strikingly similar to the judgment in the present case in that it provided that the defendant supply a copy of the income tax return for the purpose of computing defendant's gross income.

The second case is Arthur v. Arthur, 147 Cal. App. 2d 252, 305 P.2d 171, 172, where the husband was to pay a percentage of his "earnings". Headnote 1 reflects the ruling of the Court: "In property settlement agreement making the `earnings' of the husband the measuring stick by which to deermine amount to be paid for support of wife and children, quoted word was used to indicate amount produced, and not what might be left after deducting community interest of husband's second wife."

The reasoning in these two cases, Alexander v. Alexander, supra, and Arthur v. Arthur, supra, appears to be sound, and may well be applied with approval to the factual situation in the instant case.

3. Another question is this: "Was the court free to disregard the 1955 amendment to G.S. 50-11?" An affirmative answer to this question is found in the case of Rayfield v. Rayfield, 242 N.C. 691, 89 S.E.2d 399, 402, opinion by Parker, J. It is stated that "The amendment to G.S. § 50-11 by the General Assembly in 1955 Session Laws, Chapter 872, by its express language, is not applicable to defendant's judgment for subsistence rendered in 1941." It is noted that the amendment became effective January 1, 1956. And in instant case the judgment was rendered in 1953. Hence the amendment is inapplicable here. See also Yow v. Yow, 243 N.C. 79, 89 S.E.2d 867.

All authorities cited and relied upon by appellant have been considered.

Moreover, other questions raised by appellant have been duly considered, and do not appear to present new principles. Hence express treatment of them in this opinion is not deemed necessary.

For reasons stated the judgment from which appeal is taken is

Affirmed.

PARKER, J., took no part in the consideration or decision of this case.