Lawrence v. . Lawrence

BarNhill, J. Tbe motion of plaintiff to dismiss on tbe grounds tbat defendant served no ease on appeal cannot be sustained. Tbe case is bere for review of alleged error appearing on tbe face of tbe record. Bell v. Nivens, 225 N. C., 35. Tbe defendant on bis appeal from tbe order of 19 October relies primarily on tbe contention tbat be alleged tbe adultery of tbe wife in bar of ber right to alimony pendente lite and tbat tbe court declined to bear any evidence or to make any finding of fact in respect thereto. He asserts tbat without such finding tbe court was without jurisdiction to make tbe order entered. Tbe provision making tbe adultery of tbe wife a bar to ber right to alimony is a part of Gr. S., 50-16, relating to subsistence without divorce. It is not included in Gr. S., 50-15, under which plaintiff's motion was made. ¥e may concede, however, tbat tbe misconduct of tbe wife is a matter for consideration on a motion of this nature. Even so, tbe plea will not avail tbe defendant for tbe simple reason tbe judge did not allow tbe plaintiff alimony pendente lite. He only required tbe payment of $8 per week for tbe use and benefit of defendant’s infant child. In no event does tbe adultery of tbe wife discharge or bar tbe defendant’s duty in this respect. Nor can defendant’s plea to tbe jurisdiction of tbe court for tbat another action for tbe custody of tbe child is now pending be sustained. Tbe record fails to support tbe plea. Furthermore, tbe court made no order awarding custody. It merely required tbe defendant to contribute to tbe support of bis child pending trial of tbe action. As to this be has no just cause to complain. > Tbe appeal from tbe order allowing support pendente 'lite for the child took tbe case out of tbe jurisdiction of tbe Superior Court. Pending tbe appeal tbe judge was functus officio. Hence tbe adjudication of contempt and tbe order of imprisonment are void and of no effect. Vaughan v. Vaughan, 211 N. C., 354, 190 S. E., 492; Ragan v. Ragan, 214 N. C., 36, 197 S. E., 554; Ridenhour v. Ridenhour, 225 N. C., 508. They must be vacated. On tbe main appeal tbe judgment below is Affirmed.