Stanley v. . Stanley

Seawell, J. When the chronology, or sequence, of the several transactions involved in this controversy, both judicial and extrajudicial culminating in a citation of the defendant for contempt, is kept in mind, and the significance of each of them properly appraised, we can find no order of the court capable of implementation by a contempt proceeding. First in order was the separation agreement, in which the defendant *133 engaged to pay for tbe benefit Of his wife $8 per week, and in which payments, it is alleged and adjudged, he defaulted. This agreement was an extrajudicial transaction, and although between husband and wife, and relating to the support of the wife, had no more sanction for its enforcement than any other civil contract; certainly not that of imprisonment through civil contempt for noncompliance. Such a proceeding, to escape the prohibition of Art. I, sec. 16, of the Constitution, prohibiting imprisonment for debt, is confined to the enforcement of an appropriate judicial order, made in a case where the subject under jurisdiction, and the adjudication thereupon, peculiarly justify and permit such remedy. The gist of the contempt is the willful disobedience to the court order. Alimony, as that term is used in the law, is an allowance made for the support of the wife out of the estate of the husband by order of court in an appropriate proceeding, and is either temporary or permanent. Black’s Law Dictionary; 17 Am. Jur., Divorce and Separation, S. 496; 27 C. J. S., Divorce, S. 202. An action resulting in alimony safeguards the issue by requiring the statement of jurisdictional facts relating to the remedy sought upon which, if proven, the court acts independently of any subsisting agreement between the parties which is not itself made an order of court. Such an action is distinguishable from the suit brought upon the separation agreement before Judge Dixon, discussed infra, in which this motion is made. In this State alimony, both temporary and permanent, may be awarded (1) in the statutory proceeding for alimony without divorce — G. S., 50-16; (2) in an action for divorce a mensa et thoro — G. S., 50-7; and (3) in an action for absolute divorce temporary alimony pendente lite— G. S., 50-15 — but not permanent alimony may be awarded. G. S., 50-11; Duffy v. Duffy, 120 N. C., 346, 27 S. E., 28. An action may be maintained for breach of the contract, of course, and judgment awarded for sums shown to. be due. Such actions, however, sound in contract, and result in a money judgment without execution in personam, under any label known to the law, including imprisonment for contempt. Doubtless the wife, beneficiary of such a separation agreement, might, upon its breach, elect to sue for alimony, either without divorce or in a suit for divorce from bed and board, rather than upon the contract. In that event the basis of the action is willful nonsupport, not breach of the separation agreement, and upon a successful issue the order of the court, retrospective or prospective, in case of willful disobedience, might be supported by a citation for civil contempt. But not after absolute divorce, the second significant occurrence in this series, prior in time to the Dixon judgment. G. S., 50-11, supra. *134 While the Court, in an action for absolute divorce, may dispose of many incidental matters not necessary to catalogue here, it is without power to award permanent alimony incidental to the decree dissolving the relationship. G. S., 50-11, supra. Under the proviso in this section, a prior award of alimony is protected from annulment by a decree in absolute divorce, based on two years separation, which would otherwise probably have resulted. The proviso is as follows: “Provided, further, that a decree of absolute divorce upon the ground of separation for two successive years as provided in Sec. 50-5 or Sec. 50-6 shall not impair or destroy the right of the wife to receive alimony under any judgment or decree of the court rendered before the commencement of the proceeding for absolute divorce.” Dyer v. Dyer, 212 N. C., 620, 194 S. E., 278. The statute does not protect a mere separation agreement as an award of alimony. It is, therefore, not only against public policy in this State, but contrary to the statute, that permanent alimony should be the outcome of an action for divorce a vinculo. Furthermore, that is not the purport of the saving provision in the decree. Upon its face it does not attempt to do more than except from the operation, or consequences, of the judgment whatever rights the defendant in the case had under the separation agreement we have set out in full, without adopting, adjudicating or recognizing any of its provisions as a judgment or order of the court. It is merely a “hands off” or negative pronouncement regarding a nonjudicial civil agreement with which the court did not desire its decree to interfere. Whether even in this aspect it has accomplished that purpose, we are not called upon to say, as the matter is academic in this case. The judgment entered by Judge Dixon subsequent to the decree in divorce is a simple recovery upon a money demand, does not in any way adopt the terms of the separation agreement as an order of court— even had its recital been in a proceeding where that is permissible — and does not require anything of the defendant other than what the law demands of any person who has suffered a recovery in an action for debt. It is not such a judgment as can be enforced by resort to a contempt proceeding. Const., Art. I, sec. 16. The order of Harris, J., upon petitioner’s motion, is vacated and the respondent will be discharged from the rule. The judgment is Reversed.