Fullwood v. Fullwood

154 S.E.2d 473 (1967)

270 N.C. 421

Elease Autry FULLWOOD v. John Warren FULLWOOD, Jr. John Warren FULLWOOD, Jr. v. Elease Autry FULLWOOD.

No. 702.

Supreme Court of North Carolina.

May 24, 1967.

*475 Sullivan & Horne, by Kirby Sullivan, Southport, for husband appellant.

Herring, Walton, Parker & Powell, by Ray H. Walton, Southport, for wife appellee.

HIGGINS, Justice.

In the alimony action the evidence was in direct conflict. The jury accepted the wife's version and answered the issues in her favor. After the verdict the Court made investigation into the financial conditions of both parties, made findings of fact with respect thereto, and awarded alimony to the wife. G.S. § 50-16; Scott v. Scott, 259 N.C. 642, 131 S.E.2d 478; Beeson v. Beeson, 246 N.C. 330, 98 S.E.2d 17. Error of law does not appear in the alimony proceeding.

In the husband's divorce action the wife interposed a plea in abatement on the ground the husband should have proceeded by cross action in the alimony suit rather than by independent action. Cameron v. Cameron, 235 N.C. 82, 68 S.E.2d 796, 31 A.L.R.2d 436; Lockhart v. Lockhart, 223 N.C. 559, 27 S.E.2d 444. The Court properly overruled the plea in abatement. By the admission of the parties, they separated on May 18, 1965. The wife instituted the alimony action on March 8, 1966. On March 25, 1966 the husband filed answer. His cause of action for divorce on the ground of one year's separation did not accrue until May 18, 1966. Lockhart and other cases have held that when one party sues for divorce either absolute or from bed and board, the other party may, as a cross demand, set up a cause of action for divorce. At the time the defendant filed answer in the alimony proceeding his cause of action for divorce had not accrued. Hence, he was unable to allege a cause of action for divorce. "The ordinary test for determining whether * * * the parties and causes are the same for the purpose of abatement by reason of the pendency of the prior action is this: Do the two actions present a substantial identity as to parties, subject matter, issues involved, and relief demanded?" Cameron v. Cameron, supra. The parties are the same. The subject matter is somewhat different. The issues involved, and the relief demanded, are different. The wife's plea in abatement in this action does not meet the test. Whitehurst v. Hinton, 230 N.C. 16, 51 S.E.2d 899.

In the divorce action the jury found the issues in favor of the husband. Judge Carr refused to sign the judgment of divorce for the reason the husband, defendant, in the alimony proceeding, had given notice of his appeal from the order awarding alimony. Should the permanent alimony be vacated, a decree of absolute divorce would confront the wife in a new trial and prevent the award of alimony. In order to prevent a defeat of the alimony proceeding by such maneuver, Judge Carr refused to sign the divorce decree until the appeal is determined. The delay in signing the judgment, under the conditions and for the reasons discussed, was not error. Since we affirm the judgment awarding alimony, the husband still has his verdict in the divorce action on the basis of which he may move for judgment in the Superior Court.

In the wife's action for alimony: No Error.

In the defendant's appeal in his divorce action, there is at present no judgment which may be reviewed on appeal.