Brown v. . Brown

31 S.E.2d 529, 224 N.C. 556, 1944 N.C. LEXIS 414

• Court: Supreme Court of North Carolina
• Decided: October 18, 1944
• Status: Published

Opinion

DeviN, J.

The ruling of the court below, that plaintiff Arlie W. Brown could not be adjudged in contempt for failure to comply with the provisions of a separation agreement entered into prior to the institution of the divorce action, must be upheld under the authority of Davis v. Davis, 213 N. C., 537, 196 S. E., 819.

The husband’s obligation to make certain payments to his wife was based upon the contract entered into between them, and was not required of him by the valid judgment or order of a court having jurisdiction. Hence there was no willful disobedience of a court order or judgment such as would empower the court to attach him for contempt. G. S., 5-1 (4). The reference to the deed of separation in the complaint constituted an acknowledgment of the obligation, and in the judgment it was merely recited that the divorce judgment should not affect or invalidate the deed of separation. See also G. S., 50-11. The separation agreement is apparently still in effect, but compliance therewith may not be compelled by contempt proceedings in this action. In Dyer v. Dyer, 212 N. C., 620, 194 S. E., 278, cited by appellant, the contempt proceedings for failure to make certain payments were predicated upon a valid judgment and willful disobedience thereof.

Judgment affirmed-.