Opinion
No. 8422DC750
Filed 19 March 1985
Divorce and Alimony 19.5 — alimony consent judgment prior to 1 October 1967 — alimony increase precluded A mutually executed confession of judgment was an "order entered by consent" as described in G.S. 50-16.9(a). Where defendant's motion for an increase in alimony was predicated on an order for the payment of alimony entered by consent prior to 1 October 1967, defendant's motion failed to state a claim upon which relief could be granted since G.S. 50-16.9(a) specifically excludes orders entered by consent before 1 October 1967.
APPEAL by defendant from Fuller, Judge. Judgment entered 5 April 1984 in District Court, DAVIDSON County. Heard in the Court of Appeals 11 March 1985.
Leonard and Bell, by Joe H. Leonard, for plaintiff, appellee.
Charles E. Frye, III, for defendant, appellant.
Judge MARTIN concurring.
This is a motion in the cause to increase alimony. Plaintiff executed a confession of judgment and judgment was entered for the payment of alimony to defendant on 13 February 1967.
On 19 January 1984, defendant filed a motion to increase alimony, requesting the modification of the judgment entered 13 February 1967. Plaintiff filed a motion to dismiss for failure to state a claim for which relief can be granted pursuant to G.S. 1A-1, Rule 12(b)(6). Plaintiff's motion to dismiss was granted. Defendant appealed.
To modify an order for alimony, a party must meet the requirements of G.S. 50-16.9(a). This section specifically excludes from its application all orders for the payment of alimony "entered by consent" prior to 1 October 1967. A mutually executed confession of judgment, like the one herein involved, is an "orde[r] entered by consent" as described in G.S. 50-16.9(a). This Court has so held in Yarborough v. Yarborough, 27 N.C. App. 100, 106, 218 S.E.2d 411, 415 (1975). Since defendant's motion for an increase was predicated on an order for the payment of alimony entered by consent prior to 1 October 1967, defendant's motion failed to state a claim upon which relief could be granted.
In State v. Camp, 286 N.C. 148, 152, 209 S.E.2d 754, 756 (1974), the Supreme Court concluded that "[w]here the language of a statute is clear and unambiguous, there is no room for judicial construction and the courts must give it its plain and definite meaning, and are without power to interpolate, or superimpose, provisions and limitations not contained therein." G.S. 50-16.9(a) states clearly and unambiguously that all orders to pay alimony entered by consent prior to 1 October 1967 are excluded from the application of the statute.
Defendant's remaining assignments of error urge that G.S. 50-16.9(a) violates the equal protection and due process clauses of the 14th Amendment of the United States Constitution and Article 1, Section 19 of the North Carolina Constitution. These constitutional arguments were not presented to or considered by the trial court, and this Court will not pass upon constitutional questions not raised and considered in the court from which the appeal was taken. Brice v. Moore, 30 N.C. App. 365, 368, 226 S.E.2d 882, 884 (1976).
The judgment appealed from is
Affirmed.
Judges WELLS and MARTIN concur.