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McCall v. Harris

Filed: January 5, 1982.

WILLIAM A. MCCALL
v.
JACK R. HARRIS AND EDWIN A. PRESSLY, DOING BUSINESS AS HARRIS & PRESSLY, ATTORNEYS AT LAW; AND ORA J. MCCALL



Appeal by plaintiff from Davis, Judge. Judgment entered 30 December 1980 in Superior Court, Alexander County. Heard in the Court of Appeals 14 October 1981.

Arnold, Judge. Chief Judge Morris and Judge Becton concur.

Arnold

Plaintiff argues that the defendant forfeited her right to receive the alimony awarded in the prior judgment when she obtained a divorce based on separation, and that the court erred in entering summary judgment in her favor.

Defendants respond that, although prior to 1967 (when permanent alimony became available) the courts in this State had held that divorce terminated all rights of the dependent spouse to receive alimony arising out of the marriage, a divorce did not annul or destroy the dependent spouse's right to receive alimony that had accrued. Blankenship v. Blankenship, 256 N.C. 638, 124 S.E.2d 857 (1962); Smith v. Smith, 12 N.C. App. 378, 183 S.E.2d 283 (1971). Defendants contend that the situation here is analogous to cases prior to 1967 where final divorce was granted following a judgment for alimony pendente lite, and urge that the

G.S. 50-11 reference to "arising out of the marriage" be read as referring only to future payments of alimony becoming due after such absolute divorce.

This appeal presents a close question. We suggest that the wife here would have been well-advised to have postponed her divorce action until after sale of the property securing the judgment lien and distribution of the proceeds therefrom.

A careful review of the wording of G.S. 50-16.1(1), which sets forth the statutory definition of alimony, leads us to the conclusion that the legislature clearly intended to include lump sum awards such as that involved here, as well as periodic support. However, defendants' argument that a lump sum award of alimony "accrues" when it is granted is well taken. According to prior case law accrued support payments are exempt from the effects of a divorce. Yow v. Yow, 243 N.C. 79, 89 S.E.2d 867 (1955); Smith v. Smith, supra.

We note also that the failure of the divorce judgment to make any reference to support or property disposition suggests that the trial judge considered all claims between the parties to have been settled by the prior judgment. Indeed, the legislature stipulated in a 1979 amendment to G.S. 50-6 that "no final judgment of divorce shall be rendered under this section [on the basis of separation of one year] until the court determines that there are no claims for support or alimony between the parties or that all such claims have been fully and finally adjudicated." Hamilton v. Hamilton, 296 N.C. 574, 251 S.E.2d 441 (1979).

In view of this amendment, and the rule established by prior North Carolina cases, we are persuaded that the defendants' interpretation of G.S. 50-11 is that which was intended by the legislature. Accordingly, we find that the alimony award here had accrued upon judgment and was unaffected by the subsequent divorce decree.

Affirmed.

Disposit ...


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