Jackson v. Jackson

315 S.E.2d 90, 68 N.C. App. 499, 1984 N.C. App. LEXIS 3314

Opinion

HEDRICK, Judge.

The one question presented by this appeal is whether the District Court had jurisdiction to entertain defendant’s motion in the cause and enter the order dated 30 April 1982. Plaintiff contends that “the District Court was without jurisdiction to entertain a motion in the cause since no cause existed after the entry of the order of dismissal.”

N.C. Gen. Stat. Sec. 50-13.5(b)(5) provides that an action for custody or support of minor children may be brought “[b]y motion in the cause in ... an action for alimony without divorce.” In the instant case, the record reveals that plaintiff sought alimony without divorce in the action filed 21 January 1981 as well as child support and custody. The court’s dismissal of plaintiffs claim for alimony operated as a final adjudication on the merits. Rule 41(b), North Carolina Rules of Civil Procedure. The court’s ruling on plaintiffs claims for custody and support cannot be said to be a final adjudication, however, since “the issue of custody and support remains in fieri until the children have become emancipated.” In re Holt, 1 N.C. App. 108, 112, 160 S.E. 2d 90, 93 (1968). Where custody and support are brought to issue by the pleadings, the court retains continuing jurisdiction over these matters even when the issues are not determined by the judgment. Kennedy v. Surratt, 29 N.C. App. 404, 224 S.E. 2d 215 (1976). Here, where the issues of custody and support were raised in plaintiffs complaint and ruled on by the trial judge, we think it clear that the court retained jurisdiction to entertain and rule on defendant’s motion in the cause. Consequently, we uphold the court’s action in denying plaintiffs Rule 60(b)(4) motion to set aside the order dated 30 April 1982.

Affirmed.

Judges Arnold and Phillips concur.