Blackwell v. Blackwell

Court of Appeals of North Carolina

Blackwell v. Blackwell

182 S.E.2d 252, 11 N.C. App. 693, 1971 N.C. App. LEXIS 1615

CourtCourt of Appeals of North Carolina

DecidedJuly 14, 1971

DocketNo. 7110DC423

StatusPublished

This text of 182 S.E.2d 252 (Blackwell v. Blackwell) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Blackwell v. Blackwell, 182 S.E.2d 252, 11 N.C. App. 693, 1971 N.C. App. LEXIS 1615 (N.C. Ct. App. 1971).

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Opinion

CAMPBELL, Judge.

Appellant presents two questions: (1) Did the trial court make sufficient findings of fact, and (2) Did the trial court have the power and authority to order defendant to convey the real estate?

In the light of the consent order of 15 February 1971, which established residence, marital status and unlawful abandonment of the plaintiff by the defendant, we think the order of 18 February 1971 of Judge Preston found sufficient facts to establish the plaintiff as the dependent spouse and the defendant as the supporting spouse and the need of the plaintiff for support and the ability of the defendant to provide support. The findings were supported by the evidence as well as the ability of the defendant to make the payments awarded. The order entered by Judge Preston was in accordance with the holding in Peoples v. Peoples, 10 N.C. App. 402, 179 S.E. 2d 138 (1971).

With regard to the second question presented by this appeal, we are of the opinion that the trial judge committed error in ordering the defendant to convey to the plaintiff all of his right, title and interest in and to the land in question.

It is to be noted that in the complaint plaintiff did not seek a conveyance of the land in question but only sought that the defendant be required to secure the payment of any alimony “by means of a bond, mortgage or deed of trust.”

An estate by the entireties has many peculiarities, and the properties and incidents thereof are summarized in the oft-cited case of Davis v. Bass, 188 N.C. 200, 124 S.E. 566 (1924).

As stated in Highway Commission v. Myers, 270 N.C. 258, 154 S.E. 2d 87 (1967),

“Although the rents and profits therefrom and the actual possession thereof may be made available for the support of the wife, the court does not have the power to order the sale of land owned by husband and wife as tenants by the entirety in order to procure funds to pay alimony to the wife or to pay her counsel fees. ...”

This is supported by Holton v. Holton, 186 N.C. 355, 119 S.E. 751 (1923) and Porter v. Bank, 251 N.C. 573, 111 S.E. 2d 904 (1960).

[696]*696This cause is remanded to the District Court for the entry of a proper order pertaining to the real estate here involved.

Chief Judge Mallard and Judge Hedrick concur.

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CAMPBELL, Judge.

Appellant presents two questions: (1) Did the trial court make sufficient findings of fact, and (2) Did the trial court have the power and authority to order defendant to convey the real estate?

In the light of the consent order of 15 February 1971, which established residence, marital status and unlawful abandonment of the plaintiff by the defendant, we think the order of 18 February 1971 of Judge Preston found sufficient facts to establish the plaintiff as the dependent spouse and the defendant as the supporting spouse and the need of the plaintiff for support and the ability of the defendant to provide support. The findings were supported by the evidence as well as the ability of the defendant to make the payments awarded. The order entered by Judge Preston was in accordance with the holding in Peoples v. Peoples, 10 N.C. App. 402, 179 S.E. 2d 138 (1971).

With regard to the second question presented by this appeal, we are of the opinion that the trial judge committed error in ordering the defendant to convey to the plaintiff all of his right, title and interest in and to the land in question.

It is to be noted that in the complaint plaintiff did not seek a conveyance of the land in question but only sought that the defendant be required to secure the payment of any alimony “by means of a bond, mortgage or deed of trust.”

An estate by the entireties has many peculiarities, and the properties and incidents thereof are summarized in the oft-cited case of Davis v. Bass, 188 N.C. 200, 124 S.E. 566 (1924).

As stated in Highway Commission v. Myers, 270 N.C. 258, 154 S.E. 2d 87 (1967),

“Although the rents and profits therefrom and the actual possession thereof may be made available for the support of the wife, the court does not have the power to order the sale of land owned by husband and wife as tenants by the entirety in order to procure funds to pay alimony to the wife or to pay her counsel fees. ...”

This is supported by Holton v. Holton, 186 N.C. 355, 119 S.E. 751 (1923) and Porter v. Bank, 251 N.C. 573, 111 S.E. 2d 904 (1960).

[696]*696This cause is remanded to the District Court for the entry of a proper order pertaining to the real estate here involved.

Chief Judge Mallard and Judge Hedrick concur.

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Bluebook (online)

182 S.E.2d 252, 11 N.C. App. 693, 1971 N.C. App. LEXIS 1615, Counsel Stack Legal Research, https://law.counselstack.com/opinion/blackwell-v-blackwell-ncctapp-1971.

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