Hester v. Hester

16 Citing cases

  1. Bookholt v. Bookholt

    136 N.C. App. 247 (N.C. Ct. App. 1999)   Cited 39 times
    In Bookholt v. Bookholt, 136 N.C. App. 247, 250, 523 S.E.2d 729, 731 (1999), superseded on other grounds by statute as stated in Williamson v. Williamson, 142 N.C. App. 702, 543 S.E.2d 897 (2001), the defendant argued that the trial court erred in finding that his monthly expenses were lower than what the defendant listed on his financial affidavit.

    The death of either spouse warrants automatic termination. Hester v. Hester, 239 N.C. 97, 100, 79 S.E.2d 248, 251 (1953). Likewise, remarriage of the dependent spouse automatically terminates the supporting spouse's alimony obligation.

  2. Stanley v. Cox

    253 N.C. 620 (N.C. 1961)   Cited 29 times
    In Stanley v. Cox, 253 N.C. 620, 629, 117 S.E.2d 826, 832, these statements appear: "For a discussion of the clear distinction between the provisions and considerations for a property settlement and those for alimony see 17A Am. Jur., Divorce and Separation, 883 et seq.... See Jones v. Lewis, 243 N.C. 259, 90 S.E.2d 547, to the effect that an executed property settlement is not affected by a mere reconciliation and resumption of cohabitation."

    Ruffin, C.J., said for the Court in Rogers v. Vines, 28 N.C. 293: "Now, `alimony' in its legal sense may be defined to be that proportion of the husband's estate which is judicially allowed and allotted to a wife for her subsistence and livelihood during the period of their separation." This has been quoted with approval in Hester v. Hester, 239 N.C. 97, 79 S.E.2d 248, and in Taylor v. Taylor, 93 N.C. 418. The divorce judgment recites, "by consent of the plaintiff, IT IS FURTHER ORDERED AND DECREED that the plaintiff shall pay to the defendant each, every and all the payments specified in the aforesaid agreement dated January 19, 1951."

  3. In re Custody of Sauls

    270 N.C. 180 (N.C. 1967)   Cited 26 times

    Certainly it would destroy the status which, in the beginning, gave the court jurisdiction to issue the writ under G.S. 17-39. See Hester v. Hester, 239 N.C. 97, 78 S.E.2d 248. We need not, however, pick our way through the procedural quicksands to reach that problem because, in limine, we are here confronted by this question: Was the custody jurisdiction which the Superior Court of Stanly County had previously acquired under G.S. 17-39 ousted by the institution of the divorce action in the Superior Court of Wilson County?

  4. Thomas v. Thomas

    294 Md. 605 (Md. 1982)   Cited 22 times
    In Thomas v. Thomas, 294 Md. 605, 609-10, 451 A.2d 1215 (1982), Judge Eldridge noted that in the English practice alimony had no independent life.

    Atkinson v. Atkinson, 233 Ala. 125, 170 So. 198, 200 (1936); McIlroy v. McIlroy, 208 Mass. 458, 94 N.E. 696 (1911); Justice v. Justice, 108 N.E.2d 874, 876 (Ohio Comm. Pl. 1952). Other cases reject the theory, taking the position that an alimony decree is not revived by a second separation following the reconciliation, and that a new application to the court is necessary. Brown v. Brown, 210 Ga. 233, 78 S.E.2d 516, 518 (1953); Moody v. Moody, 227 La. 134, 78 So.2d 536, 537 (1955); Hester v. Hester, 239 N.C. 97, 100, 79 S.E.2d 248 (1953); O'Hara v. O'Hara, 46 N.C. App. 819, 266 S.E.2d 59 (1980); Tiffin v. Tiffin, 2 Binn. 202 (Pa. 1809); M'Karracher v. M'Karracher, supra, 3 Yeates 56; Hill v. Hill, 62 Pa. Super. 439 (1916); Lund v. Lund, 6 Utah 2d 425, 315 P.2d 856, 858 (1957); Patterson v. Patterson, 4 D.L.R. 793 (Ont. 1928). See also Hawn v. Hawn, 505 S.W.2d 459, 463 (Mo. App. 1974) (holding, on the facts, that there was no reconciliation but only an "attempted" reconciliation, and reserving the question of revival of the alimony award if there had been a bona fide reconciliation).

  5. Hand v. Hand

    46 N.C. App. 82 (N.C. Ct. App. 1980)   Cited 17 times

    Where such a reconciliation and resumption of cohabitation has taken place, an order or separation agreement with provisions for future support and an agreement to live apart is necessarily abrogated. Hester v. Hester, 239 N.C. 97, 79 S.E.2d 248 (1953); 2 Lee, North Carolina Family Law, 200 (3rd ed. 1963), p. 420. In In re Estate of Adamee, 291 N.C. 386, 230 S.E.2d 541 (1976), our Supreme Court held that when separated spouses who have executed a separation agreement resume living together, they hold themselves out as man and wife in the ordinary meaning of that phase, and irrespective of whether they have resumed sexual relations, in contemplation of law, their action amounts to a resumption of marital cohabitation which rescinds their separation agreement insofar as it has not been executed; and further, a subsequent separation will not revive the agreement.

  6. Bland v. Bland

    21 N.C. App. 192 (N.C. Ct. App. 1974)   Cited 13 times

    In its nature, then, it is a provision for a wife separated from her husband, and it cannot continue after reconciliation or the death of either party . . . . " Quoted with approval by Chief Justice Devin in Hester v. Hester, 239 N.C. 97, 100, 79 S.E.2d 248, 250 (1953). In Crews v. Crews, 175 N.C. 168, 173, 95 S.E. 149, 152 (1918), the Supreme Court said: " . . . Growing out of the obligation of the husband to properly support his wife, it [alimony] is not allowed with us as a matter of statutory right in divorces a vinculo.

  7. Hawn v. Hawn

    505 S.W.2d 459 (Mo. Ct. App. 1974)   Cited 6 times

    Some cases hold that reconciliation terminates obligations under a separate maintenance decree, so that upon a later separation the wife may not enforce the decree but must bring a new suit. Hester v. Hester, 239 N.C. 97, 79 S.E.2d 248 (1953). See also 35 A.L.R.2d 707, 743 (1954).

  8. Potts v. Potts

    211 S.E.2d 815 (N.C. Ct. App. 1975)   Cited 5 times

    In the normal situation, a separation agreement or a consent judgment incorporates provisions for periodic alimony payments and child support, which by their very nature remain executory from period to period and may be abrogated upon reconciliation. Hester v. Hester, 239 N.C. 97, 79 S.E.2d 248 (1953). A provision for support is sometimes fully executed before the reconciliation, as where the husband pays money in a lump sum for support and maintenance in return for the wife's release of all future claims.

  9. O'Hara v. O'Hara

    46 N.C. App. 819 (N.C. Ct. App. 1980)   Cited 5 times

    WEBB, Judge. We believe we are governed by the case of Hester v. Hester, 239 N.C. 97, 79 S.E.2d 248 (1953). That case involved an action for alimony without divorce.

  10. Thomas v. Thomas

    48 Md. App. 255 (Md. Ct. Spec. App. 1981)   Cited 4 times
    In Thomas v. Thomas, 48 Md.App. at 263-64, 426 A.2d 976, this Court also noted that it was the Divorce Act of 1841 that first gave the courts of this State the authority to award alimony in cases of absolute divorce.

    Other States (and one Canadian province), in the few instances where the question has arisen, have taken differing views. See, for example, Hester v. Hester, 79 S.E.2d 248 (N.C. 1953), O'Hara v. O'Hara, 266 S.E.2d 59 (N.C. App. 1980), Lund v. Lund, 315 P.2d 856 (Utah 1957), and Patterson v. Patterson, 4 DLR 793 (Ontario S.C. 1928), suggesting that the support order is not revived, and Justice v. Justice, 108 N.E.2d 874 (Ohio Comm. Pl. 1952), Atkinson v. Atkinson, 170 So. 198 (Ala. 1936), and McIlroy v. McIlroy, 94 N.E. 696 (Mass. 1911), expressing the view that it does revive.