Traywick v. Traywick

MORRIS, Judge.

The sole question for consideration on this appeal is whether the district court had jurisdiction to entertain a motion in the cause and to adjudge defendant guilty of contempt for failure to comply with the alimony pendente lite order, after the judgment on the merits had been reversed on other grounds, *366a new trial was ordered and the case was certified back to the trial court by this Court. The plaintiff contends that once the case was returned by the Court of Appeals to the district court, the district court had jurisdiction to inquire into defendant’s violation of the alimony pendente lite order. We are constrained to agree.

It is the general rule in North Carolina that when an order arising from a domestic case is appealed, the cause is taken out of the jurisdiction of the trial court and put into the jurisdiction of the appellate court. Pending the appeal, the trial judge is functus officio and is without authority to act in the matter. Joyner v. Joyner, 256 N.C. 588, 124 S.E. 2d 724 (1962) ; Lawson v. Lawson, 244 N.C. 689, 94 S.E. 2d 826 (1956) ; Lawrence v. Lawrence, 226 N.C. 221, 37 S.E. 2d 496 (1946). This is not to say, however, that the trial court may never reexamine an order in the cause after appellate review has been conducted.

“The general rule is that an appeal or writ of error, when duly perfected, divests the trial court of jurisdiction of the cause and transfers such jurisdiction to the appellate court where it remanís until the appellate proceeding terminates and the trial court regains jurisdiction.” 4 Am. Jur. 2d, Appeal and Error, § 352, pp. 830-31. (Emphasis supplied.)

The rule that the trial court regains jurisdiction over the cause after the completion of appellate review was implicitly recognized by our Supreme Court in the case of Joyner v. Joyner, supra. There, the trial court awarded alimony pendente lite to the plaintiff wife, and the husband appealed. While his appeal was pending, the wife sought to hold the husband in contempt for failure to pay according to the alimony order. The trial court judge held that he was functus officio and without authority to make any further orders while the case was on appeal. In affirming the lower court’s order, the Supreme Court said:

“Judge Bundy was correct in holding that the superior court was divested of jurisdiction by the appeal. . . . The appeal stays contempt proceedings until the validity of the judgment is determined. But taking an appeal does not authorize a violation of the order. One who wilfully violates an order does so at his peril. If the order is upheld by the appellate court, the violation may be inquired into when *367the ease is remanded to the superior court.” 256 N.C. at 591. (Emphasis supplied.)

Similarly, in Upton v. Upton, 14 N.C. App. 107, 187 S.E. 2d 387 (1972), this Court reviewed an order holding a defendant husband in contempt for violation of a child support order which was pending appeal at the time. We said (at p. 109) that “An appeal removes a cause from the trial court which is thereafter without power to proceed further until the cause is returned by mandate of the appellate court.” (Emphasis supplied.)

When this Court certified the case back to the Union County District Court on 19 January 1976, that trial court regained the jurisdiction over the case.

“When the Supreme Court has decided the case and the decision has been certified to the superior court, its jurisdiction over the case is at an end. The ‘legal link or string’ which brought the case up for review is broken, and the case goes ‘back home’ to the superior court, to be there proceeded with in accordance with the decision of the appellate court.” 1 McIntosh, N. C. Practice and Procedure, § 65, p. 40 (2d ed. 1956).

The trial court’s jurisdiction was not limited in this case to holding the new trial.

“The jurisdiction of the lower court reattaches on remand and it may take such action as law and justice may require under the circumstances as long as it is not inconsistent with the mandate and judgment of the appellate court.” 5B C.J.S., Appeal and Error, § 1965, p. 574.

Accordingly, we hold that the district court had jurisdiction to hear plaintiff’s motion regarding the alimony pendente lite order. The order is

Reversed.

Judges Hedrick and Arnold concur.