Lindsey v. Lindsey , 34 N.C. App. 201 ( 1977 )

237 S.E.2d 561 (1977)

Joann Snyder LINDSEY
v.
Samuel L. LINDSEY.

No. 7626DC956.

Court of Appeals of North Carolina.

October 5, 1977.

Thomas R. Cannon, Charlotte, for the plaintiff.

Francis O. Clarkson, Jr., and Stephen D. Poe, Craighill, Rendleman & Clarkson, Charlotte, for the defendant.

BROCK, Chief Judge.

A judgment awarding alimony and child support is a judgment directing the payment of money, generally in future installments. When the obligor under such judgment is in arrears in the periodic payment of the alimony and child support the court may, upon motion in the cause, judicially determine the amount then properly due and enter its final judgment for the total then properly due, and execution may issue thereon. See Barber v. Barber, 217 N.C. 422, 8 S.E.2d 204 (1940). However, periodic sums of alimony and child support which became due more than 10 years before the institution of this motion in the cause for a judicial determination of the amount due are barred by the ten year limitation of G.S. 1-47. Arrington v. Arrington, 127 N.C. 190, 37 S.E. 212 (1900). Statutes of limitation run as well between spouses as between strangers. Fulp v. Fulp, 264 N.C. 20, 140 S.E.2d 708 (1965). Plaintiff's argument that G.S. 1-306 provides that there shall be no statute of limitations to bar alimony misses the point. G.S. 1-306 excepts "any judgment directing the payment of alimony" from the provision that execution may not issue on a judgment requiring "the payment of money ... at any time after ten years from the date of the rendition thereof". The decree for periodic payments of alimony and support, in the absence of a provision in the decree itself which constitutes it a specific lien upon the property of the obligor, is not enforceable by execution until the arrears are reduced to judgment by a judicial determination of the amount then due. G.S. 50-16.7(i). See, 2 Lee, N.C. Family Law, § 165, p. 270. This is so because the decree for alimony and support may be modified as circumstances may justify.

It seems from a reading of plaintiff's motion and from a reading of the judgment from which this appeal was taken that the trial judge took into consideration payments which became due more than ten years before the filing of this motion in the cause.

Diane Lindsey reached her eighteenth birthday on 27 June 1970. She lived with defendant from January 1969. Defendant is entitled to have his obligation to plaintiff reduced by $43.00 per month beginning January 1969 and continuing to 27 June 1970 because Diane was living with him, and is entitled to have it reduced by $43.00 per month thereafter because she attained her majority. It does not appear from the judgment that such reduction was allowed.

Scott Lindsey will not reach his eighteenth birthday until 2 September 1978. However, Scott lived with defendant from August 1970 until 1 November 1974. Defendant is entitled to have his obligation to plaintiff reduced by $43.00 per month beginning in August 1970 and continuing to 1 November 1974 because Scott was living with him. It does not appear from the judgment that such reduction was allowed.

Plaintiff was remarried on 10 February 1973. At the time of her remarriage the alimony and child support payments were required by the order dated 10 March 1965, which was not a consent decree. "If a dependent spouse who is receiving alimony under a judgment or order of a court of this State shall remarry, said alimony shall terminate." G.S. 50-16.9(b). It does not appear from the judgment that the trial judge took into consideration the termination on 10 February 1973 of plaintiff's right to alimony.

Defendant's argument that plaintiff is barred by laches from pursuing payments which became due within ten years next preceding the filing of this motion in the cause is untenable.

Defendant's argument that Diane, having reached her majority, is the only person who can assert a claim for any delinquency in the payment of the $43.00 per month for her support is likewise without merit. The plaintiff provided for the support of Diane until Diane went to live with defendant. Plaintiff is entitled to be reimbursed by defendant to the extent of the $43.00 per month defendant was obligated to pay.

The trial judge awarded judgment against defendant for counsel fees to plaintiff's counsel. However he failed to make sufficient findings of fact upon which it can be determined that the allowance was reasonable. See, Austin v. Austin, 12 N.C.App. 286, 296, 183 S.E.2d 420, 427 (1971). Additionally, with respect to the child support portion of the judgment, G.S. 50-13.6 requires that reasonable attorney fees may be ordered only when it is determined that plaintiff had "insufficient means to defray the expense of the suit." No such determination was made by the trial court.

For the failure of the trial judge specifically to exclude from consideration those payments which became due more than ten years before the filing of this motion in the cause; for the failure of the trial judge to specifically reduce defendant's obligations to pay plaintiff for the support of the children while they were living with him; for the failure of the trial judge specifically to reduce defendant's obligation to pay plaintiff for the support of Diane after she became eighteen on 27 June 1970; for the failure of the trial judge specifically to take into consideration the termination under G.S. 50-16.9(b) of plaintiff's right to alimony; and for the failure of the trial judge to find sufficient facts to support an order for defendant to pay plaintiff's counsel fees, the judgment entered must be vacated in its entirety and this cause remanded for a new hearing.

Judgment vacated.

Cause remanded.

BRITT and MORRIS, JJ., concur.