SUSAN ELAINE JONES BROWN v. JAMES DAVID BROWN
No. 8718DC1242
COURT OF APPEALS OF NORTH CAROLINA
20 September 1988
N.C. App. 335
Affirmed.
Chief Judge HEDRICK concurs.
Judge WELLS dissents.
Judge WELLS dissenting.
While the majority opinion thoughtfully and faithfully follows a well-established case law path, I find the public policy implications in this case to be as compelling as those enunciated in Sides v. Duke University, 74 N.C. App. 331, 328 S.E. 2d 818, disc. rev. denied, 314 N.C. 331, 333 S.E. 2d 490 (1985). It is unnerving to me to contemplate that by sustaining the trial court we may be suggesting to employers of long-distance truck drivers that it is not a violation of the public policy of this state for them to require their drivers to violate federal safety statutes. I, therefore, vote to overrule the trial court and to say that we should recognize the claim for relief asserted by the plaintiff in this case.
SUSAN ELAINE JONES BROWN v. JAMES DAVID BROWN
No. 8718DC1242
(Filed 20 September 1988)
1. Injunctions § 13— no primary action — preliminary injunction inappropriate
The trial court erred in entering a preliminary injunction preventing defendant from discussing his grievances with plaintiff‘s neighbors, friends, and co-workers, since there was no primary action to which thе preliminary injunction could attach.
2. Husband and Wife § 13— separation agreement — defendant as “defaulting party” — no finding to that effect — no attorney fees for plaintiff
The trial court properly denied plaintiff‘s request for attorney fees based on her contention that defendant materially breached the parties’ separation agreement and, by its terms, was responsible as the “defaulting party” for the
Judge PHILLIPS concurring in the result.
APPEAL by defendant from William L. Daisy, Judge. Order entered 22 September 1987 in District Court, GUILFORD County. Heard in the Court of Appeals 31 May 1988.
Petree, Stockton & Robinson, by W. Thompson Comerford, Jr., Lynn P. Burleson, and Leon H. Lee, Jr., for plaintiff-appellee.
White and Crumpler, by G. Edgar Parker and Robin S. Boden, for defendant-appellant.
BECTON, Judge.
This is a domestic case in which plaintiff, Susan Elaine Jones Brown, sought injunctive and other relief for alleged violations by defendant, James David Brown, of a non-molestation clause contained in the parties’ separation agreement. Mr. Brown appeals from the entry of a preliminary injunction prohibiting him from engaging in certain harassing conduct toward Mrs. Brown. We vacate.
I
Mr. Brown and Mrs. Brown were married on 25 November 1982. One child was born to the marriage. They separated on 1 March 1986. On 21 April 1986, the parties entered into a consent order and a separation agreement. The consent order approved a waiver of alimony by Mrs. Brown, awarded child custody and child support to Mrs. Brown, and established visitation privileges for Mr. Brown. The separation agreement detailed the property settlement, included a non-molestation clause, and outlined remedies for breach of the agreement. The separation аgreement was not incorporated into the consent order.
On 6 January 1987, Mr. Brown filed a “Motion to Divide Undivided Marital Property and to have Facts Relative to Consent Order Established and Preserved,” by which he sought to have the court divide photographs of the minor child and establish for the record certain circumstances existing at the time the consent order was issued.
Subsequently, on 1 June 1987, Mrs. Brown filed a motion in the cause in which she alleged that Mr. Brown had contacted many of her professional associates as well as her employer, complaining abоut the visitation privileges and the payment of child support, and questioning Mrs. Brown‘s fitness for her job. He also contacted Mrs. Brown, threatening her with continued harassing behavior unless she agreed to lower the amount of child support, and he distributed to Mrs. Brown‘s neighbors, to members of her churсh, and to her co-workers copies of a “flyer” listing various grievances.
In her motion, Mrs. Brown prayed that the court: (1) hold Mr. Brown in contempt of court for violating the non-molestation clause in the separation agreement; (2) enter a temporary restraining order; (3) enter a preliminary injunction prohibiting him from communicating with Mrs. Brown, her friends and associates, and the minor child; (4) find Mr. Brown‘s behavior to be a material breach of the separation agreement; (5) rescind both the separation agreement and the consent order, and institute equitable distribution of the marital assets; and (6) award Mrs. Brown reasonable attorney fees. That same day, Judge Morton issued a temporary restraining order and an order to show cause in the contempt proceeding.
On 24 June 1987, Mr. Brown filed a response to Mrs. Brown‘s motion which included a
At the hearings, Mr. Brown made motions for dismissal pursuant to Rule 41(b) at the conclusion of Mrs. Brown‘s evidencе and again at the close of all the evidence. Both were denied. On 22 September 1987, Judge Daisy entered an order denying Mrs. Brown‘s motion for a preliminary injunction prohibiting Mr. Brown from exercising visitation privileges with the minor child, but granting her motion for a preliminary injunction enjoining him from communicating with various third parties under certain conditions. The judge also denied both parties’ requests for attorney fees.
Mr. Brown now appeals, arguing that the trial court erred in: (1) signing and entering both the 2 July and the 22 September orders insofar as they relate to the preliminary injunction against communication with Mrs. Brown‘s friends and associates; and (2) refusing to grant his
II
1 Mr. Brown first argues that the trial court erred by ordering a hearing on, and eventuаlly granting, Mrs. Brown‘s motion for a preliminary injunction preventing him from discussing his grievances with Mrs. Brown‘s neighbors, friends, and co-workers. Because the 2 July order scheduling the matter for hearing was interlocutory, we confine our consideration to the propriety of the 22 September decision tо grant the injunction. Mrs. Brown contends that the preliminary injunction is also an interlocutory order from which Mr. Brown‘s appeal is premature. However, as the language of the order contemplates no further action by the trial court, we deem it to be a final order for the limitеd purpose of allowing this appeal.
Citing Hutchins v. Stanton, 23 N.C. App. 467, 209 S.E. 2d 348 (1974), Mr. Brown argues that the trial court erred by granting preliminary injunctive relief because there was no primary action or claim to which the preliminary injunction could attach. In Hutchins, plaintiff sought a temporary restraining order and later a preliminary injunction to prevent defendant from interfering with the erection and maintenance of a reрlacement boundary fence on property leased to the plaintiff. Plaintiff made no other prayer for relief. The trial court granted the temporary restraining order and subsequently issued a preliminary injunction. This Court later vacated the preliminary injunction for lack оf a primary claim to which it could attach.
The purpose of a preliminary injunction is to preserve the status quo pending trial on the merits. Setzer v. Annas, 286 N.C. 534, 537, 212 S.E. 2d 154, 156 (1975). “The assumption is that a plaintiff seeking a temporary restraining order or a preliminary injunction eventually wants permanent relief.” Hutchins, 23 N.C. App. at 470, 209 S.E. 2d at 349. “[T]here has to be an action pending to which the temporary injunction can be ancillary.” Id. at 470, 209 S.E. 2d at 350.
In this case, Mrs. Brown‘s June motion essentially stated two claims for relief: contempt of court, and rescission of the consent order and separation agreement. Her request fоr a preliminary injunction could attach to either. There was no prayer for a permanent injunction. However, once the trial court dismissed Mrs. Brown‘s motions to hold Mr. Brown in contempt and to rescind the separation agreement and consent order, her prayer for a preliminary injunction ceased to be ancillary to any pending cause of action. Mrs. Brown argues, in contradiction to her earlier position, that we should treat the temporary injunction as having the force and effect of a permanent injunction. Howevеr, the entry of a permanent injunction would have exceeded the scope of the pleadings. Moreover, the order was denominated a temporary injunction by the trial court, and we may not presume that anything more was intended.
III
Mr. Brown‘s arguments concerning the denial of his various motions to dismiss also challenge the trial court‘s grant of injunctive relief to Mrs. Brown. In light of our resolution of the preceding issue, we need not address these contentions.
IV
Mr. Brown next contеnds that the trial court erred in assigning him attorney fees in the 4 February 1987 order. Rule 3 of the North Carolina Rules of Appellate Procedure states that notice of an appeal must be filed within 10 days of entry of judgment. The record does not reflect when, if ever, Mr. Brown gave noticе of appeal. Moreover, on 7 May 1987, Judge Morton dismissed the appeal for failure to timely serve his proposed record on appeal. Hence, this issue is not properly before us.
V
2 By a cross-assignment of error, Mrs. Brown contends that the trial court erred in denying her attorney fees in the 22 September order. We note that this contention constitutes an attack upon a portion of the trial judge‘s order and, as such, could only be properly brought before this Court by cross-appeal. See Stevenson v. N.C. Dept. of Insurance, 45 N.C. App. 53, 262 S.E. 2d 378 (1980). In any event, Mrs. Brown‘s position is prediсated on a contention that Mr. Brown materially breached the separation agreement and, by its terms, is responsible as the “defaulting party” for the payment of attorney fees. However, the trial court dismissed Mrs. Brown‘s cause of action for rescission of the agreement based on material breach by Mr. Brown, and Mrs. Brown has not appealed that ruling. Moreover, contrary to Mrs. Brown‘s contentions, we can discover no specific finding of fact by the trial court that Mr. Brown violated the separation agreement. Conse-
The preliminary injunction is hereby vacated.
Judge WELLS concurs.
Judge Phillips concurs in the result.
Judge Phillips concurring in the result.
The simple problems raised by the motions involved in this appeal were inordinately confused by the parties and court inappropriately treating them as though they were complaints or other statеments of a claim subject to the requirements of