{
  "id": 8549540,
  "name": "VIVIAN R. TRAYWICK v. RALPH C. TRAYWICK",
  "name_abbreviation": "Traywick v. Traywick",
  "decision_date": "1976-11-03",
  "docket_number": "No. 7620DC367",
  "first_page": "363",
  "last_page": "367",
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  "last_updated": "2023-07-14T16:36:26.493722+00:00",
  "provenance": {
    "date_added": "2019-08-29",
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  "casebody": {
    "judges": [
      "Judges Hedrick and Arnold concur."
    ],
    "parties": [
      "VIVIAN R. TRAYWICK v. RALPH C. TRAYWICK"
    ],
    "opinions": [
      {
        "text": "MORRIS, Judge.\nThe sole question for consideration on this appeal is whether the district court had jurisdiction to entertain a motion in the cause and to adjudge defendant guilty of contempt for failure to comply with the alimony pendente lite order, after the judgment on the merits had been reversed on other grounds, a new trial was ordered and the case was certified back to the trial court by this Court. The plaintiff contends that once the case was returned by the Court of Appeals to the district court, the district court had jurisdiction to inquire into defendant\u2019s violation of the alimony pendente lite order. We are constrained to agree.\nIt is the general rule in North Carolina that when an order arising from a domestic case is appealed, the cause is taken out of the jurisdiction of the trial court and put into the jurisdiction of the appellate court. Pending the appeal, the trial judge is functus officio and is without authority to act in the matter. Joyner v. Joyner, 256 N.C. 588, 124 S.E. 2d 724 (1962) ; Lawson v. Lawson, 244 N.C. 689, 94 S.E. 2d 826 (1956) ; Lawrence v. Lawrence, 226 N.C. 221, 37 S.E. 2d 496 (1946). This is not to say, however, that the trial court may never reexamine an order in the cause after appellate review has been conducted.\n\u201cThe general rule is that an appeal or writ of error, when duly perfected, divests the trial court of jurisdiction of the cause and transfers such jurisdiction to the appellate court where it reman\u00eds until the appellate proceeding terminates and the trial court regains jurisdiction.\u201d 4 Am. Jur. 2d, Appeal and Error, \u00a7 352, pp. 830-31. (Emphasis supplied.)\nThe rule that the trial court regains jurisdiction over the cause after the completion of appellate review was implicitly recognized by our Supreme Court in the case of Joyner v. Joyner, supra. There, the trial court awarded alimony pendente lite to the plaintiff wife, and the husband appealed. While his appeal was pending, the wife sought to hold the husband in contempt for failure to pay according to the alimony order. The trial court judge held that he was functus officio and without authority to make any further orders while the case was on appeal. In affirming the lower court\u2019s order, the Supreme Court said:\n\u201cJudge Bundy was correct in holding that the superior court was divested of jurisdiction by the appeal. . . . The appeal stays contempt proceedings until the validity of the judgment is determined. But taking an appeal does not authorize a violation of the order. One who wilfully violates an order does so at his peril. If the order is upheld by the appellate court, the violation may be inquired into when the ease is remanded to the superior court.\u201d 256 N.C. at 591. (Emphasis supplied.)\nSimilarly, in Upton v. Upton, 14 N.C. App. 107, 187 S.E. 2d 387 (1972), this Court reviewed an order holding a defendant husband in contempt for violation of a child support order which was pending appeal at the time. We said (at p. 109) that \u201cAn appeal removes a cause from the trial court which is thereafter without power to proceed further until the cause is returned by mandate of the appellate court.\u201d (Emphasis supplied.)\nWhen this Court certified the case back to the Union County District Court on 19 January 1976, that trial court regained the jurisdiction over the case.\n\u201cWhen the Supreme Court has decided the case and the decision has been certified to the superior court, its jurisdiction over the case is at an end. The \u2018legal link or string\u2019 which brought the case up for review is broken, and the case goes \u2018back home\u2019 to the superior court, to be there proceeded with in accordance with the decision of the appellate court.\u201d 1 McIntosh, N. C. Practice and Procedure, \u00a7 65, p. 40 (2d ed. 1956).\nThe trial court\u2019s jurisdiction was not limited in this case to holding the new trial.\n\u201cThe jurisdiction of the lower court reattaches on remand and it may take such action as law and justice may require under the circumstances as long as it is not inconsistent with the mandate and judgment of the appellate court.\u201d 5B C.J.S., Appeal and Error, \u00a7 1965, p. 574.\nAccordingly, we hold that the district court had jurisdiction to hear plaintiff\u2019s motion regarding the alimony pendente lite order. The order is\nReversed.\nJudges Hedrick and Arnold concur.",
        "type": "majority",
        "author": "MORRIS, Judge."
      }
    ],
    "attorneys": [
      "Clark & Griffin, by Richard S. Clark, for plaintiff appellant.",
      "William H. Abernathy for defendant appellee."
    ],
    "corrections": "",
    "head_matter": "VIVIAN R. TRAYWICK v. RALPH C. TRAYWICK\nNo. 7620DC367\n(Filed 3 November 1976)\n1. Appeal and Error \u00a7 16\u2014 authority of trial court pending appeal\nWhen an order arising from a domestic case is appealed, the cause is taken out of the jurisdiction of the trial court and put into the jurisdiction of the appellate court, and, pending the appeal, the trial judge is functus officio and without authority to act in the matter.\n2. Appeal and Error \u00a7 16; Divorce and Alimony \u00a7 18 \u2014 divorce action \u2014 new trial ordered \u2014 case certified to trial court \u2014 jurisdiction to determine motion for contempt\nAfter an appellate court reversed judgment on the merits in an action for alimony without divorce, ordered a new trial and certified the case back to the district court, the district court then had jurisdiction to entertain a motion in the cause that defendant be adjudged in contempt for failure to comply with an alimony pendente lite order entered prior to the first trial.\nAppeal by plaintiff from order of Crutchfield, Judge. Order entered 3 March 1976 in District Court, UNION County. Heard in the Court of Appeals 15 September 1976.\nOn 20 February 1974, plaintiff instituted this action against her husband seeking alimony without divorce, alimony pendente lite, and attorneys fees. On 6 March 1974, defendant filed an answer in which he contested plaintiff's right to relief. Following notice and a hearing on plaintiff\u2019s motion, Crutchfield, Judge, signed an order on 15 March 1974 which ordered, inter alia, that defendant \u201cpay for the plaintiff alimony pendente lite in the amount of $100.00 per month, such payments to be made in the office of the Clerk of the Superior Court of Union County, on the 20th day of each month, beginning on March 20, 1974, and continuing on the 20th day of each month thereafter, which sums shall be paid by the Clerk to the plaintiff.\u201d Neither party appealed from this order.\nThe action came to trial in Union County District Court in March, 1975, at which time the jury answered all issues in favor of plaintiff. On 14 March 1975, Webb, Judge, entered judgment awarding permanent alimony for plaintiff, and defendant appealed. The Court of Appeals reversed the judgment, Traywick v. Traywick, 28 N.C. App. 291, 221 S.E. 2d 85 (1976), and ordered a new trial. On 19 January 1976, the Court of Appeals entered its judgment which stated in pertinent part:\n\u201cThis cause came on to be argued upon the transcript of the record from the Union District Court. Upon consideration whereof, this Court is of the opinion that there is error in the record and proceedings of said trial tribunal.\nIt is therefore considered and adjudged by the Court here that the opinion of the Court as delivered by the Honorable David M. Britt, Judge, be certified to said trial tribunal, to the intent that a new trial is awarded.\n* * *\nCertified to the District Court this 19th day of January, 1976.\u201d\nOn 29 January 1976, plaintiff filed a motion in the cause in which she alleged that defendant had violated the 15 March 1974 order for alimony pendente lite and that these monthly payments were $1,100 in arrears. After notice, Webb, Judge, entered an order on 10 February 1976 which, inter alia, directed defendant to appear on 3 March 1976 and show cause why he should not be held in contempt for violation of the order. On 3 March, the matter was heard, but Crutchfield, Judge, entered an \u201cOrder Refusing to Hear Motion to Hold Defendant in Contempt,\u201d which stated:\n\u201cAnd it Appearing to the Court and the Court Finds as a Fact:\n* * *\n6. That at the hearing on March 3, 1976, the plaintiff tendered to the Court evidence that the defendant had failed to comply with the provisions of the March 15, 1974 Order for alimony pendente lite, including, but not limited to, his failure to make any payments of alimony pendente lite in the amount of $100.00 for the period between March 20, 1975 and February 20, 1976, but the Court refused to allow the plaintiff to present said evidence.\nAnd it Being the Opinion of the Court and Court Concludes as a Matter of Law :\nThat the decision and opinion of the Court of Appeals in ordering a new trial and setting aside the Judgment entered on the verdict, which opinion has been certified to the Union County District Court, leaves the Union County District Court functus officio and without authority or jurisdiction to hear the Motion in the Cause or to adjudge the defendant in contempt for his failure to make payments of alimony pendente lite or to otherwise comply with the terms of the March 15, 1974 Order or alimony pendente lite.\u2019\u2019\nPlaintiff appeals from this order of 3 March 1976.\nClark & Griffin, by Richard S. Clark, for plaintiff appellant.\nWilliam H. Abernathy for defendant appellee."
  },
  "file_name": "0363-01",
  "first_page_order": 391,
  "last_page_order": 395
}