1 N.C. App. 532 | N.C. Ct. App. | 1968
Plaintiff’s first assignment of error poses the question: Is violation of the judgment signed by Judge Copeland punishable by contempt proceedings? Plaintiff contends that it is not for the reason that the judgment is a mere contract between plaintiff and defendant, sanctioned by the court. The question must be answered in the affirmative, and plaintiff’s assignment of error relating thereto is overruled.
In Mitchell v. Mitchell, 270 N.C. 253, 154 S.E. 2d 71, we find the following:
“A contract between husband and wife whereby he agrees to pay specified sums for her support may not be enforced by contempt proceedings even though the agreement has the sanction and approval of the court. Holden v. Holden, 245 N.C. 1, 95 S.E. 2d 118; Stanley v. Stanley, 226 N.C. 129, 37 S.E. 2d 118; Brown v. Brown, 224 N.C. 556, 31 S.E. 2d 529. When, however, a court having jurisdiction of the parties and the cause of action adjudges and orders the husband to make specified payments to his wife for her support, his wilful failure to comply with the court’s judgment will subject him to attachment for contempt notwithstanding the judgment was based upon the parties’ agreement and entered by consent. Bunn v. Bunn, 262 N.C. 67, 136 S.E. 2d 240; * * *”
The judgment provides that * * By Consent, It Is ORDERED, Adjudged and Degreed” that the plaintiff make certain payments to the defendant. We hold that the judgment is enforceable by appropriate contempt proceedings.
Plaintiff’s next assignment of error relates to the unpaid balance of the $4,000 which he was ordered to pay the defendant. He contends that, by virtue of G.S. 50-16.9 (b) as rewritten by the 1967 General Assembly, because of defendant’s remarriage, he is relieved from paying alimony after her remarriage. The cited subsection reads as follows:
*535 “If a dependent spouse who is receiving alimony under a judgment or order of a court of this State shall remarry, said alimony shall terminate.”
The change in G.S. 50-16 made by the 1967 General Assembly is contained in Chapter 1152 of the 1967 Session Laws. Section 9 provides that “this action shall not apply to pending litigation.” The action before us has been pending since 3 September 1963; therefore, the 1967 legislative change does not apply to it. Plaintiff’s assignment of error No. 2 is overruled.
Plaintiff also assigns as error the interpretation placed by Judge Carr on the provisions in the judgment providing for payments by plaintiff to defendant when the children would spend weekends with her. This assignment of error is well taken, and we hold that the construction adopted by Judge Carr was erroneous.
The proviso in question is fully quoted above but, in substance, it provides that at the times the five children visit defendant for periods of 24 hours or longer, plaintiff will pay to defendant $10.00 for their support and, in the event only part of the children visit on a weekend, the support will be prorated accordingly. We hold that plaintiff would owe defendant $10.00 for a weekend visit by the five children, provided the visit lasted at least 24 hours but regardless of how long beyond 24 hours the visit lasted. Section (F) (a) of Judge Carr’s order is vacated, and this cause is remanded to the Superior Court of Wake County for a determination as to whether plaintiff owes defendant anything for weekend visits of the children prior to 26 March 1968, the date of Judge Carr’s order, and for other proceedings not inconsistent with this opinion.
Error and remanded.
