Clem B. Holding, Raleigh, for plaintiff appellant.
Douglasss&s McMillan, Raleigh, for defendant appellee.
The only question presented by this appeal is the validity of the consent order as an alimony judgment and the allowance of counsel fees based thereon.
In this jurisdiction, both temporary and permanent alimony may be awarded in a proceeding for alimony without divorce prosecuted under authority of G.S. § 50-16, or in an action for divorce from bed and board under G.S. § 50-7. In actions for absolute divorce, temporary alimony may be awarded during the pendency of the litigation under G.S. § 50-15.
G.S. § 50-11 provides, '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 a decree of absolute divorce upon the ground of separation for two successive years as provided in § 50-5 or § 50-6 shall not impair or destroy the 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.' Stanley v. Stanley, 226 N.C. 129, 37 S.E.2d 118.
At the threshold of this appeal we are met with the fact that the order upon which the notice to show cause was issued was not rendered before the commencement of the present action, but was entered while this suit was pending and is filed as a part of the judgment roll. The defendant did not pursue the statutory authority for the establishment of her rights to collect alimony from her husband, but attempted to secure the same results by the filing of a consent order in her husband's pending suit for absolute divorce. A decree providing for permanent alimony as an outcome of an action for absolute divorce is in violation of public policy and contrary to the statutory laws of North Carolina. Stanley v. Stanley, supra.
A dissolution of the bonds of matrimony existing between the plaintiff and the defendant were made absolute and complete by the judgment of the court in this action, and all rights arising out of the marital relationship, including defendant's right to permanent alimony and counsel fees, were thereby completely destroyed. Duffy v. Duffy, 120 N.C. 346, 27 S.E. 28; Hobbs v. Hobbs, 218 N.C. 468, 11 S.E.2d 311.
We are, therefore, lead to the conclusion that his Honor was without authority to enter the order appealed from, and the judgment below is