Deaton v. Deaton
75 S.E.2d 398
N.C.
1953
Check Treatment
Ebvin, J.

The appeal presents this question for decision: Does a decree of absolute divоrce obtained by the wife under the two-year separation statute codified as G.S. 50-6 annul the right оf the wife to receive permanent alimony under a judgment rendered in an action for alimоny without divorce before the commencement of the proceeding for absolute divorce ?

The plaintiff asserts that this question ought to be answered in the negative. To sustain her position, she lays hold on the second proviso in the statute embodied in G.S. 50-11 and cites these decisions: Simmons v. Simmons, 223 N.C. 841, 28 S.E. 2d 489; Dyer v. Dyer, 212 N.C. 620, 194 S.E. 278; Howell v. Howell, 206 N.C. 672, 174 S.E. 921; and Lentz v. Lentz, 193 N.C. 742, 138 S.E. 12. G.S. 50-11 is couched in this language : “After a judgment of divorce from the bonds of matrimony, all rights arising out of the marriаge shall cease and determine, ‍​‌‌‌​​​‌‌​​​‌‌​​​‌​‌​‌​‌‌​​‌​‌​‌‌​‌​‌‌​​​​‌‌​‌‌‌‍and either party may marry again unless otherwise providеd by law: Provided, that no judgment of divorce shall render illegitimate any children in esse, or begotten of the body of the wife during coverture; and, provided further, that a decree of absolute divorce upon the ground of separation for two successive years as provided in section 50-5 or section 50-6 shall not impair or destroy the right of the wife to receive alimony under any judgment or deсree of the court rendered before the commencement of the proceеding for absolute divorce.”

The defendant insists that the question raised by the appeal should be answered in the affirmative. He argues that the cases invoked by the plaintiff do not decide this precise question; that the right of the wife to alimony stems from the marital obligation of the husband to support her; that it is unjust and contrary to public policy for the wife to receive alimony from the husbаnd after she has put an end to the marital relation *489 by procuring a decree of absolute divorce; and tbat tbe Legislature intended tbe second proviso of G.S. 50-11 ‍​‌‌‌​​​‌‌​​​‌‌​​​‌​‌​‌​‌‌​​‌​‌​‌‌​‌​‌‌​​​​‌‌​‌‌‌‍to protect a рrior award of alimony only in case tbe decree of absolute divorce is obtained by tbe husband.

We are inclined to accept as valid tbe contention of tbe defendant tbat tbе decisions cited by tbe plaintiff do not adjudicate tbe precise question now before us. Tbe decrees of absolute divorce involved in tbe Simmons, Dyer, and Howell cases were procured by husbands rather than by wives. Tbе decision in tbe Lentz case that tbe subsequent decree of absolute divorce obtained by tbe wife did not invаlidate a prior consent judgment obligating tbe husband to make certain future payments for tbe benefit of tbe wife was rested squarely on tbe proposition tbat ‍​‌‌‌​​​‌‌​​​‌‌​​​‌​‌​‌​‌‌​​‌​‌​‌‌​‌​‌‌​​​​‌‌​‌‌‌‍tbe consent judgment constituted a contract between the husband and wife and stipulated in express terms tbat nothing short of tbe remаrriage of tbe wife should relieve tbe husband of tbe obligation to make tbe specified payments.

Ve are unable, however, to reconcile tbe contentions of tbe defendant rеspecting legislative intent and public policy with' tbe wording of tbe second proviso in G.S. 50-11. Tbe General Assembly inserted tbe second proviso in tbe statute for tbe purpose of taking tbe speсial cases mentioned in such proviso out of the general enactment tbat a decrеe of absolute divorce puts an end to all rights arising out of the marriage. Cameron v. Highway Commission, 188 N.C. 84, 123 S.E. 465. In so doing, tbe General Assembly expressed in unambiguous language its plain purpose tbat a subsequent decree of аbsolute divorce obtained by either tbe husband or tbe wife upon tbe ground of separation for two successive years as provided in G.S. 50-5 or G.S. 50-6 shall not impair or destroy tbe right of tbe wife to reсeive alimony from tbe husband under any judgment of tbe court rendered before tbe commencеment of tbe proceeding for absolute divorce. We cannot attribute any other meaning to tbe proviso without usurping a legislative power denied to us by our organic law. 50 Am. Jur., Statutes, section 228. Where tbe General Assembly has spoken in a constitutional manner, public policy is what the General Assembly has declared tbat policy to be. Batesville Casket Co. v. Fields, 288 Ky. 104, 155 S.W. 2d 743; Park Const. Co. v. Independent School ‍​‌‌‌​​​‌‌​​​‌‌​​​‌​‌​‌​‌‌​​‌​‌​‌‌​‌​‌‌​​​​‌‌​‌‌‌‍Dist. No. 82, Carver County, 209 Minn. 182, 296 N.W. 475, 135 A.L.R. 59; State v. Lincoln County Power Dist. No. 1, 60 Nev. 401, 111 P. 2d 528. This being so, public policy respecting tbe effect of decrees of absоlute divorce is to be found in tbe second proviso of G.S. 50-11 as well as in tbe general enactmеnt which tbe proviso qualifies.

Whether a statute produces a just or an unjust result is a matter for legislators and not for judges. We are nevertheless constrained to observe tbat justice does nоt necessarily require tbat a faithless husband shall be relieved of all responsibility for tbe suppоrt of an innocent wife who has *490 spent her youth in his service merely because the wife sees fit tо put an ‍​‌‌‌​​​‌‌​​​‌‌​​​‌​‌​‌​‌‌​​‌​‌​‌‌​‌​‌‌​​​​‌‌​‌‌‌‍end in law to a marriage long since ended in fact by his broken vows.

What has been said necessitates an affirmance of the order refusing to vacate the alimony judgment.

Affirmed.