{
  "id": 8523704,
  "name": "JEAN STILLWELL MILLER, Plaintiff v. MICHAEL F. D. MILLER, Defendant",
  "name_abbreviation": "Miller v. Miller",
  "decision_date": "1990-04-17",
  "docket_number": "No. 8926DC967",
  "first_page": "221",
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  "last_updated": "2023-07-14T19:26:07.401162+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Judges Parker and COZORT concur."
    ],
    "parties": [
      "JEAN STILLWELL MILLER, Plaintiff v. MICHAEL F. D. MILLER, Defendant"
    ],
    "opinions": [
      {
        "text": "HEDRICK, Chief Judge.\nDefendant\u2019s sole argument on appeal is that the district court erred by denying his Rule 60(b) motion for relief from the order for involuntary assignment of his wages. He contends that the court lacked jurisdiction over his person because he never received proper notice of the proceedings or service of process. We disagree.\nDivorce actions in which alimony is awarded are not ended merely by the rendition of judgment. \u201cSuch actions are always open for motions in the cause ... for the enforcement of the order for alimony.\u201d Barber v. Barber, 216 N.C. 232, 234, 4 S.E.2d 447, 448 (1939). Consequently, a plaintiff seeking enforcement of an order for alimony need not serve the defendant with a new summons. Simply serving him with notice of the motion for enforcement is sufficient. Id. Unless otherwise ordered by the court, G.S. 1A-1, Rule 5(b) allows service of notice of written motions by service on the defendant\u2019s attorney of record. Griffith v. Griffith, 38 N.C. App. 25, 247 S.E.2d 30, disc. rev. denied, 296 N.C. 106, 249 S.E.2d 804 (1978).\nIn the present case, plaintiff served James E. Walker, defendant\u2019s attorney of record, with copies of the motion for assignment of wages and the show cause order of 4 May 1988. Defendant, however, points out that Mr. Walker was hired only to \u201cprotect the defendant\u2019s interest in the dissolution of his marriage\u201d in 1976. Therefore, he claims that service upon Mr. Walker in 1988 could not be \u201creasonably calculated to inform the defendant of the hearings and thus denied the defendant due process.\u201d Nevertheless, this Court has held that absent extraordinary circumstances, \u201c[t]he relationship between a party and his attorney of record continues so long as the opposing party may enter a motion in the matter or apply to the court for further relief.\u201d Griffith, 38 N.C. App. at 29, 247 S.E.2d at 33. Upon review of the record, we conclude that the circumstances in this case do not justify a deviation from this well-established rule. Accordingly, we hold that plaintiff\u2019s service of notice was proper and that the district court correctly denied defendant\u2019s Rule 60(b) motion for relief.\nThe judgment of the district court is affirmed.\nAffirmed.\nJudges Parker and COZORT concur.",
        "type": "majority",
        "author": "HEDRICK, Chief Judge."
      }
    ],
    "attorneys": [
      "W. Richard Moore for plaintiff, appellee.",
      "Bailey, Patterson, Caddell & Bailey, P.A., hy Sheri A. Harrison, for defendant, appellant."
    ],
    "corrections": "",
    "head_matter": "JEAN STILLWELL MILLER, Plaintiff v. MICHAEL F. D. MILLER, Defendant\nNo. 8926DC967\n(Filed 17 April 1990)\nDivorce and Alimony \u00a7 21.1 (NCI3d)\u2014 alimony arrearages\u2014 assignment of wages \u2014service of notice on attorney of record The trial court obtained personal jurisdiction over defendant in a 1988 proceeding to recover alimony arrearages from defendant by assignment of his monthly wages pursuant to N.C.G.S. \u00a7 50-16.7(b) where plaintiff served the motion for assignment of wages and the show cause order on the attorney of record who represented defendant in the original divorce and alimony action in 1976. N.C.G.S. \u00a7 1A-1, Rule 5(b).\nAm Jur 2d, Courts \u00a7\u00a7 118, 143; Divorce and Separation \u00a7 856.\nAPPEAL by defendant from Jones, Judge. Order entered 10 July 1989 in District Court, MECKLENBURG County. Heard in the Court of Appeals 14 March 1990.\nThis is a civil proceeding in which plaintiff seeks to recover alimony arrearages from defendant by assignment of defendant\u2019s monthly wages pursuant to G.S, 50-16.7(b). Evidence in the record tends to show the following:\n1. On 27 February 1976, pursuant to a judgment entered in District Court, defendant was ordered to pay plaintiff $275.00 every month in permanent alimony and to maintain until his death a life insurance policy for no less than $10,000 with plaintiff as the named beneficiary.\n2. On 18 February 1988, plaintiff filed a motion in District Court, Mecklenburg County for a show cause order asking that defendant be held in contempt for refusing to abide by the judgment of 27 February 1976. Plaintiff also made a motion for attachment and garnishment of defendant\u2019s wages alleging alimony arrearages of $33,000.00.\n3. Because defendant\u2019s whereabouts were unknown to plaintiff at the time, the above described motion was served upon the attorney who represented defendant at the original divorce proceedings in 1976 and upon the commander of the United States Army Finance and Accounting Center.\n4. On 22 February 1988, the District Court granted plaintiff\u2019s motion for a show cause order. When defendant did not appear on 30 March 1988, the court adjudged defendant to be in wilful contempt and ordered the United States Army to begin monthly payments to plaintiff\u2019s attorney in an amount equal to sixty-five (65%) percent of defendant\u2019s monthly disposable income. The Army, however, refused to honor this garnishment order.\n5. On 4 May 1988, plaintiff filed a motion to amend the judgment ordering garnishment and a motion for involuntary assignment of defendant\u2019s wages pursuant to G.S. 50-16.7(b).\n6. Plaintiff\u2019s motions along with another show cause order by the District Court were served by certified mail upon the Commander of the United States Army Finance Center, the United States Attorney for the Western District of North Carolina, and by first class mail upon the attorney who represented defendant at the original divorce proceedings.\n7. Although the show cause order of 4 May 1988 gave notice of a hearing on 1 June 1988, defendant did not appear or have an attorney present at the hearing. On 6 June 1988, the court authorized assignment of sixty-five (65%) percent of defendant\u2019s monthly Army retirement pay to satisfy his alimony arrearages, current alimony and plaintiff\u2019s attorney\u2019s fees.\n8. On 26 April 1989, defendant filed a motion to vacate the orders of 30 March and 6 June 1988 and the involuntary assignment of his wages pursuant to Rule 60(b).\nFrom an order prohibiting assignment of defendant\u2019s retirement pay for current alimony but otherwise denying his motion for relief, defendant appealed.\nW. Richard Moore for plaintiff, appellee.\nBailey, Patterson, Caddell & Bailey, P.A., hy Sheri A. Harrison, for defendant, appellant."
  },
  "file_name": "0221-01",
  "first_page_order": 249,
  "last_page_order": 252
}