Feldman v. Feldman

73 S.E.2d 865 (1953)

236 N.C. 731

FELDMAN v. FELDMAN

No. 674.

Supreme Court of North Carolina.

January 6, 1953.

*867 Hayes, Hatfield & McClain, Winston-Salem, for plaintiff-appellee.

Jordan & Wright and Perry C. Henson, Greensboro, for defendant-appellant.

BARNHILL, Justice.

Allowance of alimony payable after a decree of divorce a vinculo was unknown to the common law. Duffy v. Duffy, 120 N.C. 346, 27 S.E. 28; Lockman v. Lockman, 220 N.C. 95, 16 S.E.2d 670; Gavit Black Com., pp. 188, 189.

"At common law, where a divorce a vinculo matrimonii was granted, no allowance for the future support of the wife was given, and we have no statute in this state allowing it." Duffy v. Duffy, supra; Crews v. Crews, 175 N.C.168, 95 S.E. 149; Hobbs v. Hobbs, 218 N.C. 468, 11 S.E.2d 311; Stanley v. Stanley, 226 N. C. 129, 37 S.E.2d 118; Annotation 166 A.L.R. 1004.

As the right did not exist at common law, the right of the wife to support after divorce a vinculo is subject to legislative regulation. Only such rights to alimony exist as are provided by statute, Cooke v. Cooke, 164 N.C. 272, 80 S.E. 178, 49 L.R.A.,N.S., 1034, and the General Assembly of North Carolina, except as hereinafter noted, has never enacted any statute permitting the granting of alimony after the dissolution of the bonds of matrimony. Since the decree dissolves the status, it terminates all the incidents of marriage, including the right of the wife to support and maintenance.

This principle was first put into statutory form by the General Assembly of this State in 1871. Ch. 193, sec. 43, of the Public Laws of 1871-72 provides that "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: Provided * * *" (Proviso relates to children). This statute has been enacted and re-enacted in every succeeding codification of our law and is now G.S. § 50-11.

The only modification thereof in respect to alimony is contained in ch. 204, P.L. 1919. Section 1 thereof is as follows:

"Section 1. That in all cases where an absolute divorce is granted upon the grounds of separation of husband and wife for ten (now two) successive years as provided by law, such decree granting such divorce shall not have the effect of impairing or destroying the right of the wife to receive alimony under any judgment or decree of the court rendered before the commencement of such proceeding for absolute divorce."

This section of that act, as amended, is brought forward as a proviso in G.S. § 50-11.

It is not contended that the consent order was entered prior to the institution of this action. Instead, the record discloses and it is conceded that it was entered on defendant's cross action filed in this cause. Hence it is without statutory authorization insofar as it requires plaintiff to pay alimony after the entry of the final decree of divorce.

It is true that when the order was signed the court had jurisdiction of the parties and of the subject matter of the action. Even so, he had no jurisdiction to enter an order requiring plaintiff to support the defendant after the marital status was dissolved. And it is axiomatic that jurisdiction cannot be conferred by consent, waiver, or estoppel. McRary v. McRary, 228 N.C. 714, 47 S.E.2d 27. Jurisdiction rests upon the law and the law alone. It is never dependent upon the conduct of the parties.

That part of the order which requires the payment of alimony after the date of the decree of absolute divorce must rest entirely upon the consent of the parties. To this extent, it is nothing more than a contract.

The wife is afforded ample legal means for the protection of her right to *868 support and maintenance during coverture. If the husband is guilty of misconduct which gives rise to a cause for divorce, she may institute an action for divorce a mensa under G.S. §§ 50-7, 50-14, or for reasonable subsistence without divorce under G.S. § 50-16. If the husband institutes the action, she may elect either to plead that the separation arose out of the wrongful conduct of the husband and thus preserve her right to maintenance or refrain from contesting the action and risk the loss of her marital rights. Stanley v. Stanley, supra. Whether further remedies are to be provided so that a man may be required to support his wife after the marriage has been dissolved is for the General Assembly to decide.

The judgment entered is

Affirmed.