Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Wilhelm v. Wilhelm

Filed: November 6, 1979.

RUTH LEE WILHELM
v.
RONALD L. WILHELM, SR.



Appeal by plaintiff from Carpenter, Judge. Judgment entered 7 December 1978, nunc pro tunc 9 November 1978, in District Court, Gaston County. Heard in the Court of Appeals 28 September 1979.

Martin (Harry C.), Judge. Judges Arnold and Webb concur.

Martin

This case appears to be of first impression in North Carolina. The determinative question on this appeal is: Is plaintiff's action for divorce from bed and board a pending action asserting a dependent spouse's rights with respect to "alimony," within the meaning of N.C.G.S. 50-6, as amended effective 16 June 1978? We answer yes, and accordingly reverse the trial court's order.

The pertinent portion of the statute in effect when defendant instituted his action for absolute divorce, 2 August 1978, reads:

Notwithstanding the provisions of G.S. 50-11, or of the common law, a divorce under this section obtained by a supporting spouse shall not affect the rights of a dependent spouse with respect to alimony which have been asserted in the action or any other pending action.

N.C. Gen. Stat. 50-6, 1978 Interim Supp. This amendment to N.C.G.S. 50-6 became effective 16 June 1978.

In resolving the above question, we must look to the meaning of the word "alimony" as used in the 1978 amendment. Prior to the adoption of the 1978 amendment, the General Assembly had defined "alimony" and "alimony pendente lite" as follows:

"Alimony" means payment for the support and maintenance of a spouse, either in lump sum or on a continuing basis, ordered in an action for divorce, whether absolute or from bed and board, or an action for alimony without divorce.

"Alimony pendente lite" means alimony ordered to be paid pending the final judgment of divorce in an action for divorce, whether absolute or from bed and board, or in an action for annulment, or on the merits in an action for alimony without divorce.

N.C. Gen. Stat. 50-16.1(1)(2). The legislature is presumed to have acted with knowledge of these definitions when it used the word "alimony" in the 1978 amendment. State v. Benton, 276 N.C. 641,

174 S.E.2d 793 (1970). By the definitions, alimony pendente lite is "alimony" paid during the pendency of the action. Additional evidence of the intent of the General Assembly to consider alimony and alimony pendente lite the same, except for the period of payment, is found in N.C.G.S. 50-16.3(b):

The determination of the amount and the payment of alimony pendente lite shall be in the same manner as alimony, except that the same shall be limited to the pendency ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.