Volume 142 — North Carolina Court of Appeals Reports

<bold>1. Divorce — one year's separation — residency — findings labeled as</bold> <bold>conclusions</bold> <block_quote> The trial court erred by abrogating a divorce decree based on a finding that the decree contained no findings of fact regarding the issues of one year's separation and residency in North Carolina where the appropriate statements appeared under the heading "Conclusions of Law." These statements did not involve the application of legal precepts and were more in the nature of findings than conclusions. Mislabeling the findings as conclusions is not fatal because the judgment discloses each link in the chain of reasoning.</block_quote> <bold>2. Divorce — judgment — set aside and new hearing — death of party in</bold> <bold>interim — action abated</bold> <block_quote> The trial court was without jurisdiction to vacate a divorce judgment and resurrect the parties' marriage where a divorce judgment was issued; defendant filed a motion to set aside the judgment as void; the court conducted a hearing as to when the parties began living separate and apart; plaintiff died; and the court allowed defendant's motion for the substitution of the administrator of plaintiff's estate, found that the parties did not separate with the intent to remain separate and apart, and set aside the divorce decree as null and void. An action for absolute divorce does not survive the death of a party and the judgment of absolute divorce in this case in no way passed upon equitable distribution of the marital property. In view of the determination elsewhere in this opinion that the decree was valid on its face, the proceeding to set aside the decree abated upon plaintiff's death.</block_quote>

<bold>Workers' Compensation — jurisdiction — occupational disease — time for</bold> <bold>filing complaint</bold> <block_quote> The Industrial Commission properly exercised jurisdiction in a workers' compensation case when it concluded that plaintiff employee timely filed his claim for an occupational disease under N.C.G.S. § <cross_reference>97-58</cross_reference> even though plaintiff was disabled as of 20 September 1992 but was not advised by a competent medical authority that his disease was a result of his occupation until April 1994, three months after plaintiff filed his claim, because: (1) N.C.G.S. § <cross_reference>97-58</cross_reference> provides that the two-year period within which claims for benefits for an occupational disease must be filed begins running when an employee has suffered from an occupational disease which renders the employee incapable of earning, at any job, the wages the employee was receiving at the time of the incapacity, and the employee is informed by competent medical authority of the nature and work-related cause of the disease; and (2) the statutory period was not triggered since no testimony was offered that any of plaintiff's doctors informed plaintiff that his job was causing his disease until after plaintiff filed his claim with the Commission.</block_quote>

<bold>Costs — attorney fees — award not supported by findings and reason</bold> <block_quote> An award of attorney fees to plaintiff pursuant to N.C.G.S. § <cross_reference>6-21</cross_reference>. 1 was remanded where defendants in a personal injury<page_number>Page 385</page_number> action arising from an automobile accident offered $501; plaintiff received a non-binding arbitration award of $3,500; defendant appealed the award and the jury returned a verdict of $62; plaintiff's counsel made a motion for attorney fees and costs and submitted an affidavit chronicling 73.5 hours devoted to the case; and the trial court held a hearing and entered an order awarding $5,000 in attorney fees and $848.72 in costs. The discretion to award attorney fees is not unbridled; the award here appears to be unsupported by reason in light of the court's failure to make any findings of fact and the jury verdict, the amount plaintiff sought to recover, plaintiff's contract for legal services, and the hourly rate counsel received.</block_quote>

<bold>Libel and Slander — newspaper article — substantial accuracy</bold> <block_quote> Summary judgment was correctly granted for defendant newspaper in a defamation action arising from a report that defendants had been arrested for contributing to the delinquency of two minors and had been accused of "encouraging cigarette smoking; beer drinking and engaging in sex acts involving a 15-year-old boy and 16-year-old girl." Although plaintiffs contend that the article indicated that they had been arrested for engaging in sex acts with two juveniles, the structure of the newspaper article is at least as clear as the warrant in conveying that plaintiffs were charged with encouraging juveniles to act in specific ways. Defendant is not held to a standard of absolute accuracy and this article, taken as a whole, is a substantially accurate report of the allegations in the arrest warrant.</block_quote>

<bold>1. Robbery — dangerous weapon — misdemeanor larceny — instruction on</bold> <bold>lesser included offense not required</bold> <block_quote> The trial court did not err by giving instructions for the offense of robbery with a dangerous weapon under N.C.G.S. § <cross_reference>14-87</cross_reference>(a) without instructing on the lesser included offense of misdemeanor larceny, because: (1) the evidence clearly established that defendant possessed and used a dangerous weapon; and (2) whether defendant carried the gun into the store with him, or as he alleges, acquired the gun in a struggle is irrelevant.</block_quote><page_number>Page 658</page_number> <bold>2. Assault — deadly weapon with intent to kill inflicting serious injury</bold> <bold>— instruction on lesser included offense not required — no plain</bold> <bold>error</bold> <block_quote> The trial court did not err by giving instructions for the offense of assault with a deadly weapon with intent to kill inflicting serious injury under N.C.G.S. § <cross_reference>14-32</cross_reference>(a) without instructing on the lesser included offenses of assault with a deadly weapon, assault inflicting serious injury, and assault with a deadly weapon inflicting serious injury, because: (1) the evidence at trial supported every element of the offense of assault with a deadly weapon with intent to kill inflicting serious injury; and (2) there was no plain error in the trial court's instruction.</block_quote> <bold>3. Homicide; Robbery; Assault — motion to dismiss — sufficiency of</bold> <bold>evidence</bold> <block_quote> The trial court did not err by denying defendant's motion to dismiss the charges of first-degree murder, robbery with a dangerous weapon, and assault with a dangerous weapon with intent to kill inflicting serious injury, because there was substantial evidence as to each of the elements of the offenses charged.</block_quote> <bold>4. Homicide — first-degree murder — short-form indictment —</bold> <bold>constitutionality</bold> <block_quote> Although the short-form murder indictment used to charge defendant with first-degree murder did not allege all of the elements of first-degree murder, the trial court did not err in concluding the indictment was constitutional.</block_quote>