Condie v. Condie , 51 N.C. App. 522 ( 1981 )

277 S.E.2d 122 (1981)

James Duane CONDIE
v.
Valda Geraldine Harris CONDIE

No. 8014DC815.

Court of Appeals of North Carolina.

April 21, 1981.

Grover C. McCain, Jr., and Archbell & Cotter by James B. Archbell, Durham, for plaintiff-appellant.

Levine & Stewart by Michael D. Levine, Chapel Hill, for defendant-appellee.

HEDRICK, Judge.

Plaintiff contends, based upon his first assignment of error, that the court erred in denying his motions for a directed verdict with respect to defendant's counterclaim. He argues that the evidence presented is insufficient to show abandonment of defendant by plaintiff, but does sufficiently show separation by consent. We do not agree.

One spouse abandons the other spouse, within the meaning of the statute establishing abandonment as one of the grounds entitling a dependent spouse to alimony (G.S. § 50-16.2), where the spouse brings the cohabitation to an end without justification, without the consent of the other spouse, and without the intent of renewing the cohabitation. Panhorst v. Panhorst, 277 N.C. 664, 178 S.E.2d 387 (1971). The evidence in the present case, when construed in the light most favorable to defendant, tends to show the following:

Plaintiff and defendant were married in June of 1955. In 1973, plaintiff, defendant, and their six children moved to Chapel Hill. The parties did not suffer any serious marital problems until 1976, when problems arose concerning plaintiff's relationship with the wife of a friend. Also in 1976, the parties sold their property in Chapel Hill, and purchased another piece of property in Hillsborough because defendant felt that relocation of the family would relieve some of the financial pressures the family was feeling, and some of the physical strain plaintiff was experiencing with his job. The property had a two bedroom mobile home on it, and in August 1976 plaintiff, with defendant's assistance, moved into the trailer with three of their sons. Defendant and their daughters remained in Chapel Hill. Defendant reluctantly agreed to the move since she understood that she and their daughters were to move there shortly, once an addition could be built on the mobile home to accommodate them. Although the parties had been having some marital difficulties, they had never discussed the move as being a marriage separation, and defendant never agreed or consented to such a separation. Plaintiff did show defendant some plans for a proposed addition to the mobile home several months later, but no addition was ever built.

After the move, the family remained in close contact and the parties remained intimate for several months, but strains soon developed in the marriage. When defendant would go to the home in Hillsborough, plaintiff would leave the room when she came in, or in some cases he would leave the trailer. Plaintiff's visits to see defendant and their daughters in Chapel Hill became less and less frequent until the visits stopped altogether. Plaintiff never told defendant why she could not move to Hillsborough, other than simply stating that "it would not be a good thing to do," and defendant knew of nothing she had done to prevent him from wanting her to move to Hillsborough.

The parties began attending marriage counseling sessions in October 1976, continuing into January 1977. Though defendant was using the sessions in an attempt to "preserve the marriage," plaintiff told her that he did not love her and had not loved her for ten years. After this time, defendant continued in her attempts to get the parties "back together," including going to Hillsborough to see plaintiff and their sons as much as possible, but plaintiff stated he needed more time and refused her offers to live together. The first time that plaintiff told defendant that she definitely would not be moving to Hillsborough with the rest of the family was in June 1978. Plaintiff began dating another woman, but defendant never thought that the marriage "had gone so far that it could not be fixed" until the divorce was granted and plaintiff had remarried.

We think this evidence is sufficient to raise the reasonable inference that plaintiff brought the parties' cohabitation to an end without justification, without defendant's consent, and without any intention of resuming cohabitation at a later point. The trial judge thus properly submitted the issue of abandonment to the jury, and this assignment of error is without merit.

Based upon his second and fourth assignments of error, plaintiff contends, in substance, that the evidence does not support the findings of fact, and that these findings in turn are insufficient and do not support the conclusions of law drawn therefrom. We disagree. The findings challenged by plaintiff relate to the excess of defendant's monthly expenses over her monthly income, and her dependence on plaintiff for that difference. The parties stipulated that defendant's expenses exceeded her income by $349.07 per month, and the record contains ample competent evidence that defendant had no other means with which to defray the excess expenses. We hold that the evidence is sufficient to support the challenged findings, as well as the other findings of fact made by the trial judge. The findings of fact, in turn, are sufficient and they support the conclusions of law made by the trial judge. The findings clearly demonstrate that plaintiff is the supporting spouse, that defendant is the dependent spouse, that plaintiff is financially capable of supporting defendant, and that defendant needs $349 to sufficiently meet her monthly obligations. Thus, the court could properly conclude that plaintiff should provide defendant with $250 per month as reasonable support. The findings and conclusions therefore support the order requiring plaintiff to pay defendant $250 per month as permanent alimony, and these assignments of error are not sustained.

By his third and fifth assignments of error, plaintiff challenges the authority of the trial judge, Judge Galloway, to sign the judgment on 20 May 1980, and to sign the order with respect to attorney's fees on 29 July 1980. G.S. § 1A-1, Rule 58 in pertinent part provides:

In other cases where judgment is rendered in open court, the clerk shall make a notation in his minutes as the judge may direct and such notation shall constitute the entry of judgment for the purposes of these rules. The judge shall approve the form of the judgment and direct its prompt preparation and filing.

The record before us clearly discloses that the judgment requiring plaintiff to pay permanent alimony in the amount of $250 per month was "entered" in open court on 16 April 1980. Notice of appeal from this judgment was timely given in accordance with G.S. § 1-279 and Rules 3(c) and 27(a) of the Rules of Appellate Procedure. Judge Galloway signed the written judgment on 20 May 1980, and the written judgment was filed 30 May 1980. We hold that the record discloses that Judge Galloway had the authority under G.S. § 1A-1, Rule 58 to approve the form of the judgment and to direct its prompt preparation and filing, and that she properly exercised that authority when she approved the written judgment and signed it on 20 May 1980, and when the judgment was filed on 30 May 1980.

We also hold, however, that the record affirmatively discloses that Judge Galloway had no authority to enter the order dated 29 July 1980 requiring plaintiff to pay an attorney's fee. Although defendant sought an attorney's fee in her counterclaim, and even obtained an order for an attorney's fee pendente lite, no mention of an attorney's fee was made in the judgment entered 16 April 1980. Furthermore, no reference was made to an attorney's fee in the judgment signed by Judge Galloway on 20 May 1980. In addition, the record before us does not indicate that Judge Galloway was assigned to preside over the session of court on 29 July 1980, as would be required by G.S. § 7A-192 before Judge Galloway could enter the order. Assuming arguendo that the case was properly calendared for hearing a motion in the cause, and there is nothing to indicate that such a motion was made or that plaintiff had notice of such a motion, Judge Galloway was functus officio to enter any order in the cause, since the matter was on appeal pursuant to the notice of appeal given 28 April 1980. Joyner v. Joyner, 256 N.C. 588, 124 S.E.2d 724 (1962); Carpenter v. Carpenter, 25 N.C.App. 307, 212 S.E.2d 915 (1975). Thus, the order entered 29 July 1980 requiring plaintiff to pay an attorney's fee in the amount of $2,035 must be vacated.

The result is: The judgment entered on 16 April 1980, and signed on 20 May 1980 and filed on 30 May 1980, requiring plaintiff to pay permanent alimony in the amount of $250 per month is affirmed; the order entered 29 July 1980 requiring plaintiff to pay an attorney's fee in the amount of $2,035 is vacated.

Affirmed in part; vacated in part.

WEBB and HILL, JJ., concur.