Faught v. Faught , 50 N.C. App. 635 ( 1981 )

274 S.E.2d 883 (1981)

Donna Laper FAUGHT
v.
William Flener FAUGHT.

No. 8014DC628.

Court of Appeals of North Carolina.

February 17, 1981.

Maxwell, Freeman, Beason & Lambe by Homa J. Freeman, Jr., Durham, for plaintiff-appellee.

Timothy E. Oates, Durham, for defendant-appellant.

HEDRICK, Judge.

The sole question presented by this appeal is whether the trial court erred in dismissing defendant's appeal from the order entered 27 December 1979. Resolution of this question requires an examination of G.S. § 1-289, the statute upon which Judge LaBarre purported to dismiss the appeal, and G.S. § 1-294.

G.S. § 1-289 in pertinent part provides:

If the appeal is from a judgment directing the payment of money, it does not stay the execution of the judgment unless a written undertaking is executed on the part of the appellant, by one or more sureties, to the effect that if the judgment appealed from, or any part thereof, is affirmed, or the appeal is dismissed, the appellant will pay the amount directed to be paid by the judgment, or the part of such amount as to which the judgment shall be affirmed, if affirmed only in part, and all damages which shall be awarded against the appellant upon the appeal. Whenever it is satisfactorily made to appear to the court that since the execution of the undertaking the sureties have become insolvent, the court may, by rule or order, require the appellant to execute, file and serve a new undertaking, as above. In case of neglect to execute such undertaking within twenty days after the service of a copy of the rule or order requiring it, the appeal may, on motion of the court, be dismissed with costs.... The perfecting of an appeal by giving the undertaking mentioned in this section stays proceedings in the court below upon the judgment appealed from;...

G.S. § 1-294 in pertinent part provides:

When an appeal is perfected as provided by this article it stays all further proceedings in the court below upon the judgment appealed from, or upon the matter embraced therein; but the court below may proceed upon any other matter included in the action and not affected by the judgment appealed from.

We perceive G.S. § 1-289 to be an exception to G.S. § 1-294, which provides the general rule regarding the stay of proceedings pending appeal, and in our view, G.S. § 1-289 is applicable only in cases involving a "judgment directing the payment of money." Our courts have generally held that an order requiring the payment of alimony is a "judgment directing the payment of money." Barber v. Barber, 217 N.C. 422, 8 S.E.2d 204 (1940); Vaughan v. Vaughan, 211 N.C. 354, 190 S.E. 492 (1937).

G.S. § 1-289 is then applicable to the order dated 27 December 1979 in the present case insofar as that order directs defendant to pay alimony and counsel fees. Therefore, the appeal from the order requiring defendant to pay alimony and counsel fees did not automatically stay execution on the judgment, and the trial court had the authority, in accordance with G.S. § 1-289, to require defendant to "execute a written undertaking" in order to stay execution. We point out that execution would only be available, and thus G.S. § 1-289 would only be applicable, for past due installments of alimony; with respect to the payment of alimony in futuro, no indebtedness would arise upon which execution could issue until each installment became due. Lambeth v. Lambeth, 249 N.C. 315, 106 S.E.2d 491 (1959); Barber v. Barber, supra. See also 27B C.J.S. Divorce § 265; 24 Am.Jur.2d Divorce and Separation § 709.

In the present case, when defendant failed to post the bond required by the 22 January 1980 order, plaintiff moved to "dismiss the appeal ... or in the alternative" to have the stay dissolved. Obviously, under G.S. § 1-289, if the appellant fails to give the bond required, execution on the judgment would not be stayed. The trial court, in its 5 March 1980 orders, proceeded to dissolve the stay and dismiss the appeal. There is nothing in the record to indicate that plaintiff caused execution to issue either before defendant was granted the stay of execution or after the trial court dissolved that stay.

Plaintiff argues that the trial court had the authority pursuant to G.S. § 1-289 to dismiss the appeal because defendant failed to post the bond required by the 22 January 1980 order. We do not agree. The court had the authority to order a stay of execution upon the posting of the bond, and we think had the authority to dissolve any stay already issued when the bond was not posted. G.S. § 1-289 provides that after the bond is posted and a stay of execution is ordered,

[w]henever it is satisfactorily made to appear to the court that since the execution of the undertaking the sureties have become insolvent, the court may, by rule or order, require the appellant to execute, file and serve a new undertaking, as above. In case of neglect to execute such undertaking within twenty days after the service of a copy of the rule or order requiring it, the appeal may, on motion to the court, be dismissed with costs.

In our view, the authority of the court to dismiss the appeal under G.S. § 1-289 is limited to those cases wherein a stay is ordered pursuant to the posting of a bond or similar "undertaking," and thereafter it is "made to appear" to the court that the surety or sureties on the bond have become insolvent, and a new undertaking is ordered, after which the appellant fails to execute the new undertaking within twenty days of service of that order or rule upon him. The last quoted portion of G.S. § 1-289 is obviously inapplicable to the present case since defendant never posted any bond to stay execution on the judgment. A fortiori, the trial court had no authority to dismiss the appeal for defendant's failure to "execute, file and serve a new undertaking."

With respect to those parts of the order dated 27 December 1979 requiring the parties to transfer either personal or real property, the propriety of which we do not consider on the present appeal, G.S. § 1-289 has no application. G.S. §§ 1-290 and 1-292 apply to judgments requiring the "assignment or delivery" of personal property and the "sale or delivery of possession" of real property. While these statutes give the court authority to stay execution on a judgment upon the posting of a bond, the court has no authority to dismiss an appeal for the appellant's failure to post the bond. The requirement that a bond be posted pursuant to G.S. §§ 1-290 and 1-292 is not a condition to defendant's right of appeal. See In the Matter of Foreclosure of a Deed of Trust Executed by Coley Properties, Inc., ___ N.C.App. ___, 273 S.E.2d 738 (1981).

For the reasons stated, the order dismissing the appeal from the order dated 27 December 1979 is vacated, and the cause is remanded to the District Court for the entry of an order allowing defendant to perfect his appeal from the order dated 27 December 1979. The order to be entered by the District Court will provide that defendant has sixty days from the date of said order in which to prepare and serve a proposed record on appeal, that plaintiff has thirty days thereafter to prepare and serve an alternate record on appeal, and that the record on appeal must be filed with the Court of Appeals within 150 days of the entry of such order.

Vacated and remanded.

ROBERT M. MARTIN and CLARK, JJ., concur.