North Carolina Alimony Absolute Divorce Custody Support Material Alteration Grounds Lawyers Attorneys

DOROTHY B. HAMILTON v. BUFORD L. HAMILTON, JR.

COURT OF APPEALS OF NORTH CAROLINA

March 10, 1978, Heard in the Court of Appeals

June 20, 1978, Filed

Plaintiff wife commenced this action on 26 July 1976 by way of verified complaint and summons. In her complaint she sought alimony without divorce, custody of the minor children of the marriage, child support, and attorney's fees. On 19 August 1976 defendant husband answered, denied the material allegations of her complaint, and counterclaimed for absolute divorce on grounds of one year's separation.

He further prayed that the plaintiff's action be dismissed and that he be awarded custody of the minor children. The trial court made the appropriate findings and granted the decree of absolute divorce on 26 October 1976. After the divorce decree was entered, the parties refusedto sign the consent order prepared by the plaintiff's attorney. A trial on the merits on the issues of alimony, custody, child support and attorney's fees was, therefore, set for 25 January 1977. At the close of all the evidence, the defendant moved to amend his answer to state that he had been granted an absolute divorce from the plaintiff on 26 October 1976. The trial court granted the defendant's motion, and his answer was amended to that effect. On 22 March 1977 the trial court entered judgment on the issues excluding the issue of absolute divorce which had been considered and granted in the prior hearing. Therein the court, inter alia, made findings of fact, conclusions of law, and granted the plaintiff alimony in the amount of fifty dollars a week. The defendant's appeal is solely concerned with this grant of alimony.

Issue:

Whether the decree of absolute divorce can be pled as a bar to the judgment awarding alimony in the subsequent hearing on the plaintiff's claim which initiated the action?

The decree of absolute divorce was not a final judgment as to the remainder of the claims to be adjudicated in the action. Instead, it was merely an interlocutory judgment to become final upon a complete adjudication of all claims, rights and liabilities of the parties. It did not terminate or determine the remaining issues arising from the pleadings in the action. Therefore, the court could amend, modify or rescind it at anytime prior to final judgment. Judgment upon the remaining issues, including permanent alimony, was entered as of 22 March 1977, and the judgment of absolute divorce not final until that time. Thus, the judgment of absolute divorce could not be pled as a bar to alimony. The granting of the defendant's motion to amend his answer to pleadabsolute divorce constituted, at worst, an error which was harmless to the defendant. The trial court elected at the final hearing to treat the plaintiff's prayer for alimony without divorce as a prayer for permanent alimony. This action clearly involved no surprise to either party and was a proper exercise of the trial court's authority pursuant to G.S. 1A-1, Rule 15(b). This Court further states that it would be the better practice to withhold entry of judgments and orders in cases such as this until all of the issues are adjudicated or consent orders disposing of them entered. This practice would avoid unnecessary confusion and appeals.

The court affirmed the trial Court judgment.

Disclaimer:

These summaries are provided by the SRIS Law Group. They represent the firm's unofficial views of the Justices' opinions. The original opinions should be consulted for their authoritative content

North Carolina Alimony Absolute Divorce Custody Support Material Alteration Grounds Lawyers Attorneys

By: Atchuthan Sriskandarajah

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