Livingston v. Livingston

Supreme Court of North Carolina

Livingston v. Livingston

70 S.E.2d 480, 235 N.C. 515, 1952 N.C. LEXIS 421

CourtSupreme Court of North Carolina

DecidedApril 30, 1952

StatusPublished

Cited by2 cases

This text of 70 S.E.2d 480 (Livingston v. Livingston) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Livingston v. Livingston, 70 S.E.2d 480, 235 N.C. 515, 1952 N.C. LEXIS 421 (N.C. 1952).

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Opinion

YalbntiNe, J.

The only question presented by this appeal is the validity of the consent order as an alimony judgment and the allowance of counsel fees based thereon.

In this jurisdiction, both temporary and permanent alimony may be awarded in a proceeding for alimony without divorce prosecuted under authority of G.S. 50-16, or in an action for divorce from bed and board [517]*517under G.S. 50-7. In actions for absolute divorce, temporary alimony may be awarded during tbe pendency of tbe litigation under G.S. 50-15.

G.S. 50-11 provides, “After a judgment of divorce from tbe bonds of matrimony, all rights arising out of tbe marriage shall cease and determine, and either party may marry again unless otherwise provided by law: Provided, . . . that a decree of absolute divorce upon tbe ground of separation for two successive years as provided in 50-5 or 50-6 shall not impair or destroy tbe right of tbe wife to receive alimony under any judgment or decree of tbe court rendered before tbe commencement of tbe proceeding for absolute divorce.” Stanley v. Stanley, 226 N.C. 129, 37 S.E. 2d 118.

At tbe threshold of this appeal we are met with tbe fact that tbe order upon which tbe notice to show cause was issued was not rendered before the commencement of the present action, but was entered while this suit was pending and is filed as a part of tbe judgment roll. Tbe defendant did not pursue tbe statutory authority for tbe establishment of her rights to collect alimony from her husband, but attempted to secure the same results by tbe filing of a consent order in her husband’s pending suit for absolute divorce. A decree providing for permanent alimony as an outcome of an action for absolute divorce is in violation of public policy and contrary to the statutory laws of North Carolina. Stanley v. Stanley, supra.

A dissolution of tbe bonds of matrimony existing between tbe plaintiff and tbe defendant were made absolute and complete by the judgment of tbe court in this action, and all rights arising out of tbe marital relationship, including defendant’s right to permanent alimony and counsel fees, were thereby completely destroyed. Duffy v. Duffy, 120 N.C. 346, 27 S.E. 28; Hobbs v. Hobbs, 218 N.C. 468, 11 S.E. 2d 311.

We are, therefore, led to the conclusion that his Honor was without authority to enter the order appealed from, and the judgment below is

Reversed.

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YalbntiNe, J.

The only question presented by this appeal is the validity of the consent order as an alimony judgment and the allowance of counsel fees based thereon.

In this jurisdiction, both temporary and permanent alimony may be awarded in a proceeding for alimony without divorce prosecuted under authority of G.S. 50-16, or in an action for divorce from bed and board [517]*517under G.S. 50-7. In actions for absolute divorce, temporary alimony may be awarded during tbe pendency of tbe litigation under G.S. 50-15.

G.S. 50-11 provides, “After a judgment of divorce from tbe bonds of matrimony, all rights arising out of tbe marriage shall cease and determine, and either party may marry again unless otherwise provided by law: Provided, . . . that a decree of absolute divorce upon tbe ground of separation for two successive years as provided in 50-5 or 50-6 shall not impair or destroy tbe right of tbe wife to receive alimony under any judgment or decree of tbe court rendered before tbe commencement of tbe proceeding for absolute divorce.” Stanley v. Stanley, 226 N.C. 129, 37 S.E. 2d 118.

At tbe threshold of this appeal we are met with tbe fact that tbe order upon which tbe notice to show cause was issued was not rendered before the commencement of the present action, but was entered while this suit was pending and is filed as a part of tbe judgment roll. Tbe defendant did not pursue tbe statutory authority for tbe establishment of her rights to collect alimony from her husband, but attempted to secure the same results by tbe filing of a consent order in her husband’s pending suit for absolute divorce. A decree providing for permanent alimony as an outcome of an action for absolute divorce is in violation of public policy and contrary to the statutory laws of North Carolina. Stanley v. Stanley, supra.

A dissolution of tbe bonds of matrimony existing between tbe plaintiff and tbe defendant were made absolute and complete by the judgment of tbe court in this action, and all rights arising out of tbe marital relationship, including defendant’s right to permanent alimony and counsel fees, were thereby completely destroyed. Duffy v. Duffy, 120 N.C. 346, 27 S.E. 28; Hobbs v. Hobbs, 218 N.C. 468, 11 S.E. 2d 311.

We are, therefore, led to the conclusion that his Honor was without authority to enter the order appealed from, and the judgment below is

Reversed.

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70 S.E.2d 480, 235 N.C. 515, 1952 N.C. LEXIS 421, Counsel Stack Legal Research, https://law.counselstack.com/opinion/livingston-v-livingston-nc-1952.

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