Howell v. . Howell

ClaeicsoN, J. The question involved: Does the decree of absolute divorce in C. S. Howell’s action in Chatham County upon the ground of two years separation impair or destroy Mrs. Howell’s right to receive alimony under a judgment and decree in Mrs. Howell’s action in Wake County rendered before the commencement of the proceeding for absolute divorce on the grounds of separation, the divorce decree reciting that it does not? We think not. N. 0. Code, 1931 (Michie), sec. 1663, is as follows: “After a judgment of divorce from the bonds of matrimony, all rights arising out of the marriage shall cease and determine, and either party may marry again unless otherwise provided by law: Provided, that no judgment of divorce shall render illegitimate any children in esse, or begotten of the body of the wife during coverture; and, Provided further, that a decree of absolute divorce upon the ground of separation for ten successive years as provided in section 1659 shall not impair or destroy the *675 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.” (Italics ours.) 1933 Supplement to tbe North Carolina Code of 1931 (Michie), section 1659(a), is as follows: “Divorce after separation of two years on application of either party. — Marriages may be dissolved and the parties thereto divorced from the bonds of matrimony, on application of either party, if and when there has been a separation of husband and wife, either under deed of separation or otherwise, and they have lived separate and apart for two years, and the plaintiff in the suit for divorce has resided in the State for a period of one year. This section shall be in addition to other acts and not construed as repealing other laws on the subject of divorces. 1931, chapter 72, 1933, chapter 163.” We think that section 1659(a), supra, automatically reduces the time from ten to two years, in section 1663, supra, the two are cognate statutes dealing with similar questions and are to be construed in pari materia. In the present case, the judgment on 3 February, 1930, by Judge Daniels recites “by consent” and “until the further order of the court.” This was modified by Judge Sinclair on 24 December, 1932. The judgment in the Chatham County action of the defendant against plaintiff, granting him a divorce on the ground of separation, before Judge Daniels, July-August Term, 1933, distinctly says: “This judgment is entered without prejudice to the action pending in the Superior Court of Wake County, North Carolina, ' entitled: ‘Mrs. Pearl. D. Howell v. C. S. Howell,’ and all orders heretofore made in said action pending in the Superior Court of Wake County shall not be affected by this judgment.” It will be noted that plaintiff did not except to the reduction of the monthly allowance in the judgment signed by Judge Sinclair in the present case. The judgment in the present action of Judge Sinclair, remains in full force and effect. Lentz v. Lentz, 193 N. C., 742; Kizer v. Kizer, 203 N. C., 428; Walker v. Walker, 204 N. C., 210; Smithdeal v. Smithdeal, ante, 397. For the reasons given, the judgment of the court below is Affirmed. ScheNOK, J., took no part in the consideration or decision of this case.