Collins v. Collins ( 1973 )

196 S.E.2d 282 (1973) 18 N.C. App. 45

Rose Young COLLINS
v.
Richard Ambrose COLLINS.

Nos. 7326DC271, 7326DC43.

Court of Appeals of North Carolina.

April 25, 1973.

James, Williams, McElroy & Diehl, P. A., by William K. Diehl, Jr., Charlotte, for plaintiff appellant.

Hamel & Cannon, P. A., by Thomas R. Cannon, Charlotte, for defendant appellee.

BRITT, Judge.

Basic to all questions presented on these appeals is a determination of the validity of the Stipulation of Dismissal in 71CVD15102 filed by plaintiff on 18 February 1972 and the effect of the dismissal.

In making this determination, we deem it necessary first to consider authorities prevailing prior to 1 October 1967, the effective date of Chapters 1152 and 1153 of the 1967 Session Laws (codified primarily as G.S. § 50-13.1 et seq. and G.S. § 50-16.1 et seq.) and 1 January 1970, the effective date of the current Rules of Civil Procedure.

Brady v. Brady, 273 N.C. 299, 160 S.E.2d 13 (1968) was instituted under former G.S. § 50-16 on 3 March 1967. The cause was heard on motion by plaintiff wife for subsistence and counsel fees pendente lite, custody and support of the children, and possession of the home. From an order denying her any relief, plaintiff appealed. We quote from the opinion by Chief Justice Parker (page 305, 160 S.E.2d page 17):

"The trial court indicated that it had some question about its authority to find in favor of the plaintiff because of the previous similar action brought by her and the adverse ruling made at the hearing in that action. The finding made in the previous action was not binding in the present action. Where the defendant asserts no claim and demands no affirmative relief, plaintiff, in an action for alimony without divorce, may take a voluntary nonsuit. Griffith v. Griffith, supra. [265 N.C. 521, 144 S.E.2d 589 (1965)] * * *."

In Griffith v. Griffith, supra, opinion by Justice Higgins, we find (page 523, 144 S. E.2d page 590):

"Left for decision, however, is the question whether the court committed error in refusing to permit the plaintiff to take a voluntary nonsuit. Ordinarily, a plaintiff who appeals to a trial court for relief (other than by a proceeding in rem) may withdraw the claim and get out of court by taking a voluntary nonsuit. This he may do as a matter of right unless the defendant has asserted some claim or cross action entitling him to affirmative relief. In such event the defendant is entitled to keep the action before the court until his claim is litigated. For citation of authorities, see Strong's North Carolina Index, Vol. 4, "Trial," § 29, p. 325. The rule applies to actions for divorce and alimony as in other cases. Scott v. Scott, 259 N.C. 642, 131 S.E.2d 478."

We now consider the effect of G.S. § 50-13.1 et seq. and G.S. § 50-16.1 et seq. and the current Rules of Civil Procedure on the principle stated above. A voluntary dismissal under the current rules is substantially the same as a voluntary nonsuit under the former procedure. A careful review of those statutes fails to disclose any provision which would alter the principle stated in Brady and Griffith. As to the current rules, in the 1972 Cumulative Supplement to 1 Lee, N.C. Family Law, § 53, pp. 35-36, we find: "Under Rule 41(a)(1) of the Rules of Civil Procedure the plaintiff has an absolute right to a voluntary, non-prejudicial dismissal up to the time he rests his case. A second dismissal will, however, be an adjudication upon the merits. N.C.Gen.Stat., § 1A-1, Rule 41(a)(1)." See also 1970 Pocket Part to 2 McIntosh, N.C. Practice and Procedure, § 1647, p. 68.

Under the former practice a judgment of voluntary nonsuit terminated the action and no suit was pending thereafter in which the court could make a valid order. 7 Strong, N.C. Index 2d, Trial, § 30, p. 317. We think the same rule applies to an action in which a plaintiff takes a voluntary dismissal under G.S. § 1A-1, Rule 41(a)(1).

Because of the cited authorities, we hold that in the cases now before us plaintiff's voluntary dismissal of the prior action (71CVD15102) on 18 February 1972 was a final termination of that action and that no valid order could be made thereafter in that cause.

We proceed now to pass on the assignments of error brought forward and argued in the briefs.

DEFENDANT'S APPEAL FROM THE 26 MAY 1972 ORDER

First, defendant assigns as error the failure of the court to allow his motions to dismiss the action instituted 22 February 1972 for that the issues raised had been determined in the previous action. For the reasons stated above, the assignment of error is overruled.

Defendant next assigns as error that portion of the 26 May order adjudging him in contempt of court and ordering him confined in jail for 15 days for that this action by the court was based on a finding that defendant had violated the conditions of the order entered in the previous action. The assignment of error is sustained. As stated above, the previous action was completely terminated on 18 February 1972 and no valid order based on that case could be made thereafter.

Finally, defendant assigns as error the award of fees for plaintiff's attorney. This assignment of error has no merit. The award was made for services rendered in the new action and was authorized by G.S. § 50-13.6 and G.S. § 50-16.4.

PLAINTIFF'S APPEAL FROM THE 26 MAY 1972 ORDER

Plaintiff assigns as error the conclusion of law that she is not entitled to an award of alimony pendente lite for the reason that "such an award is barred by the entry of the Order in 71-CVD-15102, on January 31, 1972." The assignment of error is sustained. On competent evidence the court found facts sufficient to support an award of alimony pendente lite but denied the award on an erroneous understanding of the law. The present action is affected by the previous action in no way except that plaintiff may not again voluntarily dismiss her action without prejudice.

DEFENDANT'S APPEAL FROM THE 20 OCTOBER 1972 ORDER

This appeal presents the question of whether the trial court had jurisdiction to conduct the contempt proceedings in October 1972 while the case was on appeal.

The record indicates that, pursuant to the court's 26 May orders, defendant surrendered possession of the residence to plaintiff and that she and the child proceeded to occupy the residence until the hearing in October. In the 20 October order, the court found that defendant had failed to make house payments and child support payments as required by the 26 May order but, because the case had been appealed, the court declined to consider the question of defendant's being in contempt on those counts. However, the court found that on 13 October 1972, in deliberate violation of the 26 May order and against the advice of his counsel, defendant went to the residence which had been sequestered for the sole use and possession of plaintiff, obtained the key, entered the premises, refused to leave when requested by plaintiff, and did not leave until police officers were called and forcibly removed him. The court adjudged said conduct to be contemptuous and thereupon imposed a jail sentence.

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

In Joyner v. Joyner, 256 N.C. 588, 124 S.E.2d 724 (1962), the court held: An appeal from an order awarding custody of a child of the marriage to the wife removes the cause from the Superior Court to the Supreme Court, and the Superior Court thereafter is functus officio until the remand of the cause. The Superior Court is without jurisdiction, pending the appeal, to punish the husband for contempt, and its findings in regard to the wilful violation of the order are a nullity.

Among other cases, plaintiff cites Manufacturing Co. v. Arnold, 228 N.C. 375, 45 S.E.2d 577 (1947). The holding in that case pertinent to the instant case is summarized as follows: "An appeal from an interlocutory order stays all further proceedings in the lower court in regard to matters relating to the specific order appealed from, but the action remains in the lower court and it may proceed upon any other matter included in the action upon which action was reserved or which was not affected by the judgment appealed from." The cited case does not help plaintiff as her October proceedings related to the specific order (26 May) appealed from.

While the question is not raised in any brief, we deem it appropriate to determine the effect of the stipulation recited in the 20 October order that the parties had stipulated that the court had jurisdiction to hear the question of defendant's contempt. In State v. Fisher, 270 N.C. 315, 154 S.E.2d 333 (1967), we find:

"It is well established law that the parties cannot, by consent, give a court jurisdiction over subject matter of which it would otherwise not have jurisdiction. Jurisdiction in this sense cannot be obtained by consent of the parties, waiver or estoppel. Hart v. Thomesville Motors, 244 N.C. 84, 92 S.E.2d 673, and the numerous cases there cited; In re Custody of Sauls [270 N.C. 180], 154 S.E.2d 327; 20 Am.Jur.2d, Courts, § 95; 21 C. J.S. Courts § 85; 1 Strong's N.C. Index, Courts, § 2. * * *"

We hold that the trial court did not have jurisdiction to conduct the contempt proceedings in October 1972, therefore, the order of 20 October 1972 is void. Nevertheless, we think the following language from Joyner, supra, 256 N.C. page 591, 124 S.E.2d page 727, is pertinent: "The appeal stays contempt proceedings until the validity of the judgment is determined. But taking an appeal does not authorize a violation of the order. One who wilfully violates an order does so at his peril. If the order is upheld by the appellate court, the violation may be inquired into when the case is remanded to the superior court."

DISPOSITION OF APPEALS

The 20 October 1972 order is vacated. With respect to the 26 May 1972 order, the cause is remanded to the District Court of Mecklenburg County for further proceedings consistent with this opinion.

Remanded.

MORRIS and PARKER, JJ., concur.