Simmons v. . Simmons

Supreme Court of North Carolina

Simmons v. . Simmons

28 S.E.2d 489, 223 N.C. 841, 1944 N.C. LEXIS 259

Supreme Court of North Carolina·Decided January 12, 1944·Published·Cited by 6 cases

Opinion

Stacy, C. J.

The question sought to be presented is whether the judgment for subsistence entered herein on 15 July, 1941, can survive the *843 judgment of absolute divorce obtained by the defendant on 21 September, 1942, under the two-years’ separation statute. C. S., 1663. The cases of Dyer v. Dyer, 212 N. C., 620, 194 S. E., 278; S. c., 213 N. C., 634, 197 S. E., 157; Edmundson v. Edmundson, 222 N. C., 181, 22 S. E. (2d), 576; and Howell v. Howell, 206 N. C., 672, 174 S. E., 921, would seem to require an affirmative answer. The defendant’s effort to differentiate these decisions because of alleged dissimilar fact situations was unsuccessful in the court below, and we are disposed to take the same view of the matter.

On the present record, however, it may be doubted whether the appeal can be maintained, since the contempt proceeding was brought to a close when the defendant paid all amounts in arrears, and the rule against him was discharged. Of course, the declaration that defendant would still be liable for future installments under the original judgment adds nothing to its effectiveness. It expresses an obvious conclusion or corollary, perhaps, albeit the only question before the court was the defendant’s alleged willful refusal to pay the past-due installments. When these were paid the end sought by the contempt proceeding was reached.

Appeal dismissed.

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Stacy, C. J.

The question sought to be presented is whether the judgment for subsistence entered herein on 15 July, 1941, can survive the *843 judgment of absolute divorce obtained by the defendant on 21 September, 1942, under the two-years’ separation statute. C. S., 1663. The cases of Dyer v. Dyer, 212 N. C., 620, 194 S. E., 278; S. c., 213 N. C., 634, 197 S. E., 157; Edmundson v. Edmundson, 222 N. C., 181, 22 S. E. (2d), 576; and Howell v. Howell, 206 N. C., 672, 174 S. E., 921, would seem to require an affirmative answer. The defendant’s effort to differentiate these decisions because of alleged dissimilar fact situations was unsuccessful in the court below, and we are disposed to take the same view of the matter.

On the present record, however, it may be doubted whether the appeal can be maintained, since the contempt proceeding was brought to a close when the defendant paid all amounts in arrears, and the rule against him was discharged. Of course, the declaration that defendant would still be liable for future installments under the original judgment adds nothing to its effectiveness. It expresses an obvious conclusion or corollary, perhaps, albeit the only question before the court was the defendant’s alleged willful refusal to pay the past-due installments. When these were paid the end sought by the contempt proceeding was reached.

Appeal dismissed.

Simmons v. . Simmons, 28 S.E.2d 489, 223 N.C. 841, 1944 N.C. LEXIS 259 (N.C. 1944).

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Opinion

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