{
  "id": 8554333,
  "name": "N. A. DUNN, III, v. ROSALIE JOHNSON DUNN",
  "name_abbreviation": "Dunn v. Dunn",
  "decision_date": "1968-07-10",
  "docket_number": "",
  "first_page": "532",
  "last_page": "535",
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      "cite": "1 N.C. App. 532"
    }
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    "name_abbreviation": "N.C. Ct. App.",
    "id": 14983,
    "name": "North Carolina Court of Appeals"
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    "name_long": "North Carolina",
    "name": "N.C."
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    {
      "cite": "226 N.C. 129",
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    {
      "cite": "245 N.C. 1",
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    {
      "cite": "270 N.C. 253",
      "category": "reporters:state",
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        8566989
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  "analysis": {
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  "last_updated": "2023-07-14T18:11:01.747951+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Campbell and Morris, JJ., concur."
    ],
    "parties": [
      "N. A. DUNN, III, v. ROSALIE JOHNSON DUNN."
    ],
    "opinions": [
      {
        "text": "Britt, J.\nPlaintiff\u2019s first assignment of error poses the question: Is violation of the judgment signed by Judge Copeland punishable by contempt proceedings? Plaintiff contends that it is not for the reason that the judgment is a mere contract between plaintiff and defendant, sanctioned by the court. The question must be answered in the affirmative, and plaintiff\u2019s assignment of error relating thereto is overruled.\nIn Mitchell v. Mitchell, 270 N.C. 253, 154 S.E. 2d 71, we find the following:\n\u201cA contract between husband and wife whereby he agrees to pay specified sums for her support may not be enforced by contempt proceedings even though the agreement has the sanction and approval of the court. Holden v. Holden, 245 N.C. 1, 95 S.E. 2d 118; Stanley v. Stanley, 226 N.C. 129, 37 S.E. 2d 118; Brown v. Brown, 224 N.C. 556, 31 S.E. 2d 529. When, however, a court having jurisdiction of the parties and the cause of action adjudges and orders the husband to make specified payments to his wife for her support, his wilful failure to comply with the court\u2019s judgment will subject him to attachment for contempt notwithstanding the judgment was based upon the parties\u2019 agreement and entered by consent. Bunn v. Bunn, 262 N.C. 67, 136 S.E. 2d 240; * * *\u201d\nThe judgment provides that * * By Consent, It Is ORDERED, Adjudged and Degreed\u201d that the plaintiff make certain payments to the defendant. We hold that the judgment is enforceable by appropriate contempt proceedings.\nPlaintiff\u2019s next assignment of error relates to the unpaid balance of the $4,000 which he was ordered to pay the defendant. He contends that, by virtue of G.S. 50-16.9 (b) as rewritten by the 1967 General Assembly, because of defendant\u2019s remarriage, he is relieved from paying alimony after her remarriage. The cited subsection reads as follows:\n\u201cIf a dependent spouse who is receiving alimony under a judgment or order of a court of this State shall remarry, said alimony shall terminate.\u201d\nThe change in G.S. 50-16 made by the 1967 General Assembly is contained in Chapter 1152 of the 1967 Session Laws. Section 9 provides that \u201cthis action shall not apply to pending litigation.\u201d The action before us has been pending since 3 September 1963; therefore, the 1967 legislative change does not apply to it. Plaintiff\u2019s assignment of error No. 2 is overruled.\nPlaintiff also assigns as error the interpretation placed by Judge Carr on the provisions in the judgment providing for payments by plaintiff to defendant when the children would spend weekends with her. This assignment of error is well taken, and we hold that the construction adopted by Judge Carr was erroneous.\nThe proviso in question is fully quoted above but, in substance, it provides that at the times the five children visit defendant for periods of 24 hours or longer, plaintiff will pay to defendant $10.00 for their support and, in the event only part of the children visit on a weekend, the support will be prorated accordingly. We hold that plaintiff would owe defendant $10.00 for a weekend visit by the five children, provided the visit lasted at least 24 hours but regardless of how long beyond 24 hours the visit lasted. Section (F) (a) of Judge Carr\u2019s order is vacated, and this cause is remanded to the Superior Court of Wake County for a determination as to whether plaintiff owes defendant anything for weekend visits of the children prior to 26 March 1968, the date of Judge Carr\u2019s order, and for other proceedings not inconsistent with this opinion.\nError and remanded.\nCampbell and Morris, JJ., concur.",
        "type": "majority",
        "author": "Britt, J."
      }
    ],
    "attorneys": [
      "Vaughan S. Winborne, Attorney for plaintiff appellant.",
      "No Counsel for defendant appellee."
    ],
    "corrections": "",
    "head_matter": "N. A. DUNN, III, v. ROSALIE JOHNSON DUNN.\n(Filed 10 July 1968.)\n1. Divorce and Alimony \u00a7 SI\u2014\nA contract under which the husband agrees to pay the wife specified sums for her support may not be enforced by contempt proceedings even though the agreement is approved by the court, but where a court having jurisdiction of the parties and the cause of action orders the husband to make specified payments for the wife\u2019s support, his wilful failure to comply with the court's judgment subjects him to contempt proceedings notwithstanding the judgment was based upon the parties\u2019 agreement and was entered by consent.\n2. Same\u2014\nWhere the husband filed for an absolute divorce and the wife cross-claimed for alimony, a judgment entered by the court with the consent of the parties requiring the husband to make support payments to the wife is enforceable by contempt proceedings.\n3. Divorce andi Alimony \u00a7\u00a7 16, 19\u2014\nWhere a divorce action was instituted by the husband prior to the effective date of G.S. 50-16.9(b), the wife cross-claimed for alimony, an order was entered requiring the husband to make periodic payments for the wife\u2019s support, and the husband was subsequently granted an absolute divorce, G.S. 50-16.9(b) does not relieve the husband from making such support payments upon the wife\u2019s remarriage since the statute does not apply to litigation pending at its effective date. Chapter 1152, \u00a7 9, Session Laws of 1967.\n4. Divorce and Alimony \u00a7 23\u2014\nAn order giving the husband custody of the children of the marriage and providing that at the times the children visit the wife for periods of 24 hours or longer the husband shall pay the wife $10.00 for their support, is held to require the husband to pay only $10.00 for each visit by the children which lasts at least 24 hours regardless of how long beyond that time the visit lasts and not to require the payment of $10.00 per day during each visit.\nAppeal by plaintiff from Carr, J., 26 March 1968 Session of Waee Superior Court.\nThis civil action was instituted on 3 September 1963. In his complaint, plaintiff prayed for absolute divorce on the ground of two-years separation; he alleged that five children were born to the marriage and were in plaintiff\u2019s custody pursuant to an order of the Wake County Domestic Relations Court. Defendant filed answer in which she pled a cross-action for alimony.\nOn 25 November 1964, a judgment consented to by the parties and their attorneys was entered by Copeland, J., requiring the plaintiff to pay defendant $4,000 in full satisfaction of his obligation and duty to support the defendant; the judgment provided that the $4,000 would be payable in certain annual installments, with the last installment being due on or before 1 January 1969. The judgment also provided that plaintiff would have the custody of the five children with defendant having certain visitation rights and contained the following provision: \u201cAt the times that the said children visit with Rosalie Johnson Dunn for periods of 24 hours or longer, Nathaniel Alonzo Dunn, III, shall pay to Rosalie Johnson Dunn $10.00 for their support and, in the event that only part of the children are visiting the support shall be prorated accordingly.\u201d\nOn 26 November 1964, defendant withdrew her further answer and cross-action and plaintiff was awarded an absolute divorce.\nOn 27 September 1967, defendant filed a motion in the cause, asking that plaintiff be required to show cause why he should not be punished for contempt for violating the terms of the 25 November 1964 judgment. In an affidavit attached to her motion, defendant set forth various dates on which the children had visited her and the amount she contended plaintiff owed her. She contended that the proviso in the judgment quoted above regarding payments of $10.00 for periods of 24 horns or longer should be construed to mean that plaintiff would pay her $10.00 for each 24 hours that the children spent with her. She alleged that plaintiff owed her $570.00.\nAn order to show cause was entered by Canaday, J., on 27 September 1967, and on 3 October 1967, plaintiff filed a demurrer to the motion to show cause for the reason that the motion was based on a consent judgment and, therefore, not punishable by contempt. Plaintiff also filed a reply and countermotion to the motion to show cause in which he alleged that defendant has twice married since the parties were divorced and that defendant is now living with her third husband. In his reply, plaintiff prayed that the contempt citation be dismissed, that he be relieved of making further payments on the $4,000 provided for defendant in the original judgment for the reason that defendant has remarried, that he be relieved of making visitation weekend support for the children, and that he recover judgment against the defendant for $1,000 paid her since her remarriage.\nFollowing a hearing, Carr, J., entered an order on 27 March 1968 in which he overruled plaintiff\u2019s demurrer, postponed determination as to whether plaintiff was in contempt, denied plaintiff\u2019s motion that he be relieved of further payments to defendant on the $4,000, and adjudged that the clause \u201cfor a period of 24 hours or longer\u201d in the original judgment means support \u201cfor each full 24-hour period\u201d that the children visit the defendant. Judge Carr found that plaintiff owed defendant $570.00 for the weekend visit support of the children, but provided that plaintiff could purge himself of possible contempt by paying the defendant $300.00 within thirty days from the date of the order; he also modified the 25 November 1964 judgment by relieving plaintiff of the requirement of making payments for the support of the children while visiting the defendant on weekends, holidays, and at any other time.\nPlaintiff assigned errors and appealed.\nVaughan S. Winborne, Attorney for plaintiff appellant.\nNo Counsel for defendant appellee."
  },
  "file_name": "0532-01",
  "first_page_order": 554,
  "last_page_order": 557
}