Hamilton v. Hamilton , 36 N.C. App. 755 ( 1978 )

MITCHELL, Judge.

The central issue presented by this appeal is whether the decree of absolute divorce, granted to the defendant in the prior separate hearing on his counterclaim, can be pled as a bar to the judgment awarding alimony in the subsequent hearing on the plaintiffs claim which initiated the action. We hold that it cannot.

The defendant appellant contends that the trial court erred in concluding that the plaintiff was the “dependent spouse” and the defendant the “supporting spouse.” He further contends that, after the judgment of absolute divorce, the parties could not have been within the definitions of those terms pursuant to G.S. 50-16.1 since, at that point, no spousal relationship existed. Additionally he contends that, due to the termination of the marriage by the prior divorce decree, the court erred in concluding that the plaintiff was entitled to alimony. These contentions are without merit.

Generally it is clear that a judgment of absolute divorce terminates the right of a spouse to support and the power of a court to enter an alimony order. G.S. 50-11; McCarley v. McCarley, 289 N.C. 109, 221 S.E. 2d 490 (1976); Mitchell v. Mitchell, 270 N.C. 253, 154 S.E. 2d 71 (1967); Yow v. Yow, 243 N.C. 79, 89 S.E. 2d 867 (1955); Smith v. Smith, 12 N.C. App. 378, 183 S.E. 2d 283 (1971). However, it is equally clear that, with certain exceptions not pertinent to this discussion, “a decree of absolute divorce shall not impair or destroy the right of a spouse to receive alimony and other rights provided for such spouse under any judgment or decree of a court rendered before or at the time of the rendering of the judgment for absolute divorce.” G.S. 50-11(c); McCarley v. McCarley, 289 N.C. 109, 221 S.E. 2d 490 (1976); Darden v. Darden, 20 N.C. App. 433, 201 S.E. 2d 538 (1974); Johnson v. Johnson, 17 N.C. App. 398, 194 S.E. 2d 562 (1973).

For some years parties have been permitted to settle the issues of alimony and absolute divorce in the same action. G.S. 50-11(c); G.S. 50-16.8(b); McCarley v. McCarley, 289 N.C. 109, 117, 221 S.E. 2d 490, 495 (1976); Cameron v. Cameron, 235 N.C. 82, 68 S.E. 2d 796 (1951); Darden v. Darden, 20 N.C. App. 433, 201 S.E. 2d 538 (1974). The parties in the action sub judice pursued this course.

Although both parties’ claims were part of the same action, they were severable. Pursuant to G.S. 1A-1, Rule 42(b), the court may order a separate trial of any counterclaim. Additionally, G.S. 1A-1, Rule 13(i) states that the judgment on a counterclaim “may be rendered in accordance with the terms of Rule 54(b) when the court has jurisdiction so to do.” However, G.S. 1A-1, Rule 54(b) states, inter alia, that:

When more than one claim for relief is presented in an action, whether as a claim, counterclaim, crossclaim, or third-party claim, or when multiple parties are involved, the court may enter a final judgment as to one or more but fewer than all of the claims or parties only if there is no just reason for delay and it is so determined in the judgment. [Emphasis added.]

We point out that no such finding was made by the trial court in the judgment granting absolute divorce in this case. We recognize that in Oestreicher v. Stores, 290 N.C. 118, 225 S.E. 2d 797 (1976), the Supreme Court of North Carolina ruled that the lack of such a finding, as to “no just reason for delay,” would not be determinative for purposes of appeal pursuant to G.S. 1-277 and G.S. 7A-27(d). Here, however, finality and not appealability is the issue. We hold that the judgment, rendered prior to final determination of all the issues and granting absolute divorce, was interlocutory and subject to the provisions of G.S. 1A-1, Rule 54(b), for purposes of determining its finality. See Hall v. Hall, 28 N.C. App. 217, 220 S.E. 2d 158 (1975). Rule 54(b), therefore, in pertinent part states that:

In the absence of entry of such a final judgment, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties and ... in the absence of entry of such a final judgment, any order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.

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. See Hall v. Hall, 28 N.C. App. 217, 220 S.E. 2d 158 (1975); and Hinson v. Hinson, 17 N.C. App. 505, 195 S.E. 2d 98 (1973). It did not terminate or determine the remaining issues arising from the pleadings in the action. See Johnson v. Roberson, 171 N.C. 194, 88 S.E. 231 (1916); and Shuford, N.C. Civil Practice and Procedure, § 54-3. Therefore, the court could amend, modify or rescind it at anytime prior to final judgment. See Skidmore v. Austin, 261 N.C. 713, 136 S.E. 2d 99 (1964). See generally, Shuford, N.C. Civil Practice and Procedure, §§ 54-3 through 54-5.

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 plead absolute 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).

We note 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.

For the reasons previously stated, the judgment of the trial court was without reversible error and is

Affirmed.

Chief Judge BROCK and Judge HEDRICK concur.